text:
    E. W. Bohren, Inc., Appellant, v. Dangler, Appellee.
    (No. 107
    Decided March 11, 1954.)

      Mr. Wilmer D. Rekeweg, for appellant.

      ,Mr. Paul Spriggs and Mr. J. F. Cavanaugh, for appellee.
   Guernsey, J.

This is an appeal on questions of law from a judgment of the Court of Common Pleas of Paulding County, Ohio, in an action wherein the appellant, E. W. Bohren, Inc., was plaintiff and the appellee, Seth E. Dangler, was defendant.

The action is one to recover for damages alleged to have been sustained by a motor truck owned by plaintiff and operated by an employee of plaintiff, in a collision with a farm tractor owned by defendant and operated by one Arthur Yocum, Jr., a minor and agent and servant of the defendant, caused by the negligence of Arthur Yocum, Jr.

The cause was tried to a jury in the Common Pleas Court. At the close of plaintiff’s evidence, the court, on motion of the defendant, directed a verdict in favor of the defendant and against the plaintiff upon the ground that there was no evidence tending to prove that Arthur Yocum, Jr., the operator of the farm tractor at the time of the collision, was operating the same in the capacity of a servant or agent for the defendant.

The jury returned a verdict accordingly, and a judgment in favor of defendant and against plaintiff dismissing plaintiff’s petition was duly entered upon said verdict. That is the judgment from which this appeal is taken.

The plaintiff assigns error in a number of particulars which may be summarized as follows :

1. Said verdict is contrary to law in that there is evidence tending to prove that Arthur Yocum, Jr., at the time of the collision, was operating said farm tractor owned by the defendant, in the capacity of an agent or servant of the defendant.
2. Said verdict is against the weight of the evidence.
3. For other errors of law appearing upon the record.
4. In overruling motion for new trial based upon the ground of newly discovered evidence material to plaintiff’s case which plaintiff could not, with reasonable diligence, have discovered and produced at the trial.

These assignments of error will be considered in the order above mentioned.

The plaintiff, in its brief in chief, has not specifically quoted, mentioned or .pointed out any evidence of any character tending to prove that Arthur Yocum, Jr., at the time of the collision was operating the farm tractor owned by the defendant, in the capacity of agent or servant of the defendant, but in its oral argument in the cause, and in its reply brief, it called the court’s attention to the testimony of Billie Gillen, given on direct examination by the plaintiff, relied upon by it as tending to prove such capacity, to wit:

“Q. Did you see Mr. Dangler at that time, that day? A. Yes, sir.
“Q. And can you tell us what conversation, if any, that you had with Mr. Dangler? A. Well, he accused me of several things, but to be exact, no I couldn’t. 1 know he accused me of hitting the tractor, which I didn’t.
“Q. Did he accuse you of speeding, as he stated here? A. Yes, he did.
“Q. Did he tell you you would owe him for the damage to the tractor? A. No.
“Q. Did he tell you who junior Yocum was working for? A. Yes, sir.
“Q. And who did he say junior Yocum was working for? A. He didn’t say junior Yocum was working for him.
“Q. He didn’t say. A. No, junior Yocum said he was working for this man here.
“Q. Was Mr. Dangler present at that time when that statement was made?
“Mr. Cavanaugh: I ask that the conversation be struck out; this conversation; that is merely hearsay.
“The Court: The request, if that conversation was in the absence of Mr. Dangler, it is not proper testimony, and it will be ordered stricken and the jury will be asked at this time to disregard it. Any testimony, or any conversation in the presence of Mr. Dangler is competent, but not in his absence, and for that-reason, you are not to consider it as evidence in this case; what junior Yocum said to this witness in the absence of Mr. Dangler.”

A statement by a witness, of the character of that made by Yocum, Jr., as to his employment by the defendant, is admissible in evidence only in the event that it is made in the presence of the party against whom the statement is offered in evidence and in a conversation in which he took part. See 20 American Jurisprudence, 467, Evidence, Section 555, and 17 Ohio Jurisprudence, 287, Evidence, Section 218.

The quoted testimony tends to prove that Yocum, Jr., made the statement as to his employment above mentioned but does not tend to prove that it was made in the presence of the defendant and in a conversation in which he took part, and it was incumbent upon the plaintiff to produce evidence tending to prove these facts in order to make the testimony of the witness as to such statement of Yocum, Jr., admissible in evidence.

The above-quoted instruction given by the court had the effect of excluding the testimony of the witness as to Yocum’s statement of his employment from the consideration of the jury, and the defendant did not proffer the answer the witness would have made to the question, “Was Mr. Dangler present at that time when that statement was made ” if he had been permitted to answer the same. The witness may have answered the question either “yes” or “no.” In this situation, this court, as a reviewing court, is unable to determine whether the trial court erred to the prejudice of plaintiff mentioned, and it is interesting to note that the plaintiff did not assign error in such ruling or take any exception or maiie any objection thereto.

The situation above disclosed comes within the rule stated in 2 Ohio Jurisprudence, Pt. 1, 339, Appellate Review, Section 169, as follows:

“A reviewing court will not review alleged error in the exclusion of evidence when no objection has been noted in the ruling of the trial judge excluding it. Furthermore, where evidence offered in chief is excluded, the party offering it must show what he expects to prove by the witness in order to enable the reviewing court to see if there has been error on account of the refusal of the court to receive the evidence. ’ ’

The testimony above mentioned having been excluded by the court, and the plaintiff neither offering any testimony nor making any proffer thereof tending to show that the defendant was present and took part in the conversation at which the statement of Yocum, Jr., as to his employment was made, it does not appear from the record that the court erred in the exclusion thereof. This being the ease, this court cannot consider such testimony in determining whether there was any testimony tending to prove the employment of Arthur Yocum, Jr., by the defendant.

On a careful reading of the bill of exceptions, we find no evidence tending to prove that Arthur Yocum, Jr., was an agent or servant of the defendant at the time the collision occurred.

For the reasons above mentioned we find that the first assignment of error is without merit.

2. In order for the plaintiff to recover from the defendant upon the cause of action pleaded in its petition, it was incumbent upon plaintiff to prove that Arthur Yocum, Jr., was the servant or agent of the defendant, acting within the scope of his employment at the time the collision occurred, and without this proof the plaintiff could not recover. As above stated, the plaintiff did not produce such proof and the verdict of the jury is therefore not against the weight of the evidence.

The second assignment of error is without merit.

3. Under this assignment of error the appellant does not specify or argue in its brief any claimed errors coming within its scope, and this court, in the exercise of its statutory prerogative, will not consider this assignment.

4. Plaintiff’s motion for a new trial is based on six stated grounds. All these grounds are incorporated in its assignment of errors. We have already considered and discussed all the grounds except the one we have designated as assignment of error No. 4.

A motion for new trial upon the ground of newly discovered evidence is governed by the provisions of Sections 11576 and 11579, General Code. Section 11576, among other things, provides that a new trial may be granted upon the ground of newly discovered evidence, material for the party applying, which with reasonable diligence he could not have discovered and produced at the trial. Section 11579, among other things, prescribes that the application must be made by motion, upon written grounds, and, if the ground of the motion is newly discovered evidence, it must be sustained by affidavits or depositions showing the truth of such ground.

It has been held that the issue raised by the motion may, upon notice to the opposing party, be heard upon oral evidence in the same manner as issues in causes are tried. Willett, Admr., v. New York Central Rd. Co., 73 Ohio App., 59, 54 N. E. (2d), 317.

In the instant case, the original motion and the journal entry overruling the same appear in the transcripts of original papers and journal entries and these are the only papers or documents before the court in any way reflecting upon the motion for a new trial.

Apparently no affidavit or affidavits were offered in support of the motion, as prescribed in Section 11579, General Code, and no oral testimony was introduced upon the issue raised by the motion.

As the appellant claimed error in the overruling of the motion it was incumbent upon it, in order that the record of the cause on appeal should affirmatively show the claimed error of the trial court, to have a bill of exceptions of the proceedings of the trial court upon the motion, incorporating any affidavits and oral evidence submitted upon the hearing of the motion, prepared and filed in and allowed by the Common Pleas Court and then filed in this court. In the absence of such a bill of exceptions, and there is none filed in this cause, no error in the particular assigned affirmatively appears of record. Willett, Admr., v. New York Central Rd. Co., supra.

This assignment of error is without merit.

As we find no prejudicial error in any of the particulars assigned and specified and argued in appellant’s brief, the judgment of the Common Pleas Court is affirmed at costs of appellant, and the cause remanded for execution.

Judgment affirmed.

Younger, P. J., and Middleton, J., concur.


source: Caselaw Access Project

author: Phillips, J.

license: Public Domain

text:
    Black, Appellant, v. The Carnegie-Illinois Steel Corp., Appellee.

      (No. 3600
    Decided October 29, 1953.)

      Messrs. Traxler é Beil, for appellant.

      Messrs. Manchester, Bennett, Powers <& Ullman, for appellee.
   Phillips, J.

Plaintiff, the widow of Maurice Black and wholly dependent upon him for her support at the time of his death on February 1,1948, at the age of 32 years, appealed to this court on questions of law from a judgment of the Court of Common Pleas entered upon a jury verdict returned for defendant in plaintiff’s action on appeal to that court from a denial by the Industrial Commission of Ohio on rehearing of her claim for readjustment of her claim for compensation under the provisions of the Workmen’s Compensation Act of Ohio, which was denied on the ground that the death of Maurice Black did not result from an injury sustained in the’course of and arising out of his employment by defendant, a corporation and self-insnrer under such act.

While rewiring a light in one of defendant’s plants on December 22, 1947, a disk type shade, 12 inches in diameter and weighing between four and five pounds, fell, striking plaintiff’s decedent on his head, dazing him and causing him to faint 10 or- 15 minutes later, and necessitating his being removed to his home in an ambulance.

On December 23, 1947, plaintiff’s decedent, returned to work and worked one week, after which he was bed-fast at his home until hospitalized about a week before his death from subacute bacterial endocarditis, renal abscess, hemorrhagic purpura, cerebral myotic, infarct.

Plaintiff’s doctors testified there was a probable causal relationship between the injury decedent received on December 22, 1947, and his death on February 1, 1948. Defendant’s doctors testified that there was no such relationship, thus presenting a clear cut question for determination by the jury, with whose verdict and the judgment entered thereon we can not interfere on the grounds that they are “not sustained by any evidence” or are “against the manifest weight of the evidence.”

Defendant asked its doctor-witness the following hypothetical question, and he answered in the negative:

“Doctor, assuming that Mr. Black was struck, on the head by a lampshade weighing three to five pounds, which was not sufficient to break the skin, some three or four weeks prior to the time that you saw him, could such a blow on the head, in your opinion, bring about the condition of ill-being, namely, subacute bacterial endocarditis and pancarditis which you found in Mr. Black. ’ ’

Plaintiff’s counsel contend that such question did not “fully and fairly reflect the facts,” and that by the omission of facts “in evidence the question was rendered improper because such facts as included in the question did not present the facts in their true relation. ”

We are not impressed with this argument. See 2 Wigmore on Evidence (3 Ed.), 807, Section 682 (b) ; and 17 Ohio Jurisprudence, 432, Section 340.

In our opinion the trial judge did not err to plaintiff’s prejudice, as she urges, in overruling plaintiff’s motions for judgment in her favor notwithstanding the verdict of the jury returned against her or for a new trial, and the verdict of the jury and judgment entered thereon are not contrary to law.

Plaintiff’s counsel have failed to call our attention to “other errors apparent on the face of the record,” as alleged as a.ground of error, or to comply in respect thereto with the provisions of Rule YII of this court that his briefs “shall contain a statement of the questions presented and a succinct statement of so much of the cause, referring to the pages of the record, as is necessary to show how the questions arose, together with a statement of the authorities relied upon.” Accordingly, we will not pass upon this assigned ground of error.

The judgment of the Court of Common Pleas is affirmed.

Judgment affirmed.

Griffith, P. J., and Nichols, J., concur.


author: Skeel, J.

text:
    City of Cleveland, Appellee, v. Hutcherson, Appellant.
    (Two cases.)
    (Nos. 22914 and 22915
    Decided September 28, 1953.)

      Mr. Bernard J. Contvay, police prosecutor, for appellee.

      Mr. Frank C. Lyons, for appellant.
   Skeel, J.

These appeals come to this court on questions of law from final orders of the Municipal Court of Cleveland. On the 16th day of January 1953, the defendant was put on trial in the Municipal Court of Cleveland on a charge of trespass on school property and at the conclusion of the trial was found guilty. The court sentenced defendant to pay a fine of $100 and costs, then suspended such sentence, putting defendant on probation under the rules of the probation department for one year. Thereafter, defendant was on the 9th day of February 1953 put on trial on a charge of petit larceny. At the conclusion of the trial he was found guilty, sentence was immediately imposed ($25 fine and costs and 30 days imprisonment) and suspended, and defendant was placed on probation for one year. The acts constituting the misdemeanor of which defendant was found guilty in each case were committed prior to January 16,’ 1953.

On June 17, 1953, defendant' was brought before the court charged with violating the terms of his probation on the larceny charge and on the 18th day of June he was charged with violating the conditions of his probation on the trespass charge. Whereupon the court, in each case, vacated the order of probation and ordered the original sentence into execution. The orders terminating defendant’s probation in each case are the subject of these appeals.

Section 13451-8&, General Code, provides:

“Any court sentencing a person for misdemeanor forbidden by statute or ordinance, may at the time of sentence remit the same or suspend such sentence in whole or in part, upon such terms as he may impose.” Section 13452-1, General Code, provides:
“In prosecutions for crime, except as mentioned in Section 6212-17 of the General Code, and as hereinafter provided, where the defendant has pleaded, or been found guilty and it appears to the satisfaction of the judge or magistrate that the character of the defendant and the circumstances of the case are such that he is not likely again to engage in an offensive course of conduct, and the public good does not demand or require that he be immediately sentenced, such judge or magistrate may suspend the imposition of the sentence and place the defendant on probation in the manner provided by law, and upon such terms and conditions as such judge or magistrate may determine; provided, that juvenile delinquents shall not be included within this provision.”

The sections following Section 13452-1, General Code, and preceding Section 13452-7, General Code, provide procedure for releasing the defendant on probation, his supervision during the period of probation, and for his arrest by the probation office or by order of the judge or magistrate in the event it is claimed the defendant has failed to comply with the terms of his probation.

Section 13452-7, General Code, .then provides in part:

‘ ‘ When the defendant is brought before the judge or magistrate, such judge or magistrate shall immediately inquire into the conduct of the defendant, and may terminate the probation, and impose any sentence which might originally have been imposed or continue the probation and remand the defendant to the custody of the probation authority, at any time during the probationary period fixed as herein provided, when the . ends of justice will be served and the good conduct of the person so held shall warrant it, the judge or magistrate may terminate the period of probation. ’ ’

This court has held (State v. Skypeck, 77 Ohio App., 225, 65 N. E. [2d], 75) that one who has been granted probation under the foregoing provisions of criminal procedure .is entitled to a “judicial inquiry” as to any claim that the defendant has violated the terms of his probation. This does not mean that he is entitled to a full scale trial of such question. Certainly the court would have a right to hear from its probation officer as to the results of his contact with the defendant and any conclusions reached by him upon proper investigation of the defendant’s conduct. The judicial inquiry required by the statute must, however, be broad enough to require the court to hear the statements of witnesses offered by defendant, material in determining whether the defendant’s conduct in fact was in violation of the terms of his probation. Conduct prior to the order of probation clearly within the knowledge of the court as of the date of such order cannot be considered.

In the case of State v. Nowak, Jr., 91 Ohio App., 401, 108 N. E. (2d), 377, the court set forth the minimum requirements of a judicial inquiry under Section 13452-7, General Code, in paragraph four of the syllabus as follows:

“The minimum requirements of a judicial inquiry include a public hearing in open court with timely notice to defendant; that defendant be entitled to be present, represented by counsel and be advised of the nature of the accusation against him; that the defendant be given an opportunity to be heard and to submit evidence in his own behalf; and, generally, that defendant be accorded reasonable opportunity to bring to the court’s attention, as far as he is able, such facts and circumstances as tend to contradict or explain the alleged violation of the probation order. ’ ’

Also, in the case of City of Lima v. Beer, 90 Ohio App., 524, 107 N. E. (2d), 253, the court said in the syllabus:

“2. Where a court suspends the sentence of a person convicted of keeping gambling devices upon the condition that he ‘cease and desist in the selling of gambling tickets known as tips,’ the defendant has a right to rely upon such express and definite condition and, so long as he complies therewith, suspension of sentence cannot be revoked.
“3. The determination of the question of whether the defendant has violated the condition of his probation set forth in the order suspending the sentence must be by judicial inquiry.
“4. In a judicial inquiry to determine whether such defendant has violated the condition of his probation, the defendant has a legal right to know the facts which it is claimed show a violation of the condition of the order of suspension, to fully cross-examine the witnesses against him, and to a reasonable opportunity to be heard and present evidence refuting the claimed violation, and the denial of such rights by the trial court is prejudicial error.”

The right of a court to suspend the imposition of sentence and place a defendant on probation or to suspend sentence after it has been pronounced in misdemeanor cases is controlled entirely by statute in Ohio.

In the case of Municipal Court of Toledo v. State, ex rel. Platter, 126 Ohio St., 103, 184 N. E., 1, paragraph three of the syllabus provides :

“The trial courts of this state do not have the inherent power to suspend execution of a sentence in a criminal case and may order such suspension only as authorized by statute. ’ ’

See, also, 12 Ohio Jurisprudence, 682, Section 667.

The power of the court to either suspend the imposition of sentence and place the defendant on probation or remit or suspend sentence at the time of its imposition upon such terms as the court may deem just Is controlled by Sections 13451-8 b, 13452-1, 13452-7, and related sections of the General Code.

After the court exercised the power of suspending sentence at the time of its imposition, in each case now being considered, and ordering the defendant on probation, any attempt thereafter to vacate the order in each case and enforce the original sentence must be done as provided by statute, that is, after making a “judicial inquiry” to determine whether the defendant has broken the terms of his probation, and only in the event the court so finds can such order of probation be set aside.

An examination of the bill of exceptions in each case shows clearly that the defendant was not afforded a judicial inquiry, as herein defined, on the question of whether he had in fact violated the terms of his probation.

The judgment revoking the order of probation in each case is, therefore, reversed and the causes remanded so that the court may afford defendant a “judicial inquiry” in accord with this opinion on the question of whether he has violated the terms of his probation.

Judgments accordingly.

Hurd, P. J., and Kovachy, J., concur.


author: Hunsicker, J.

text:
    Dougherty, Appellant, v. Dougherty, Appellee.
    (No. 4450
    Decided April 28, 1954.)

      Messrs. Myers, Myers & Myers, for the motion.

      Mr. L. E. Gaylord, Mr. Michael A. Fanelly and Mr. D. W. Alexander, contra.
   Hunsicker, J.

This matter comes before the court on a motion filed by Denville J. Dougherty, in which he asks that the appeal on questions of law and fact filed by Harriett E. Dougherty be dismissed, for the reason that the appeal is taken from a judgment for divorce and alimony, which proceeding is not subject to an appeal on questions of law and fact.

The appellant, Harriett E. Dougherty, with leave of court, amended her notice of appeal to show that the appeal is taken only from that portion of the judgment ordering the payment of an inadequate and insufficient amount of alimony and attaching conditions thereto, and ordering that plaintiff deed to defendant her interest in property owned by her.

The appellee, Denville J. Dougherty, renewed his motion to the notice of appeal as amended. On such state of the proceedings, the matter is before this court for disposition.

The appellant, Harriett E. Dougherty, insists that, since the amendment of Article IV, Section 6, of the Constitution of Ohio (effective January 1, 1945), and the subsequent enactment (effective August 28, 1951) by the Legislature of Section 8003-21, General Code (now Section 3105.20, Revised Code), the appeal from the judgment herein may be taken on questions of law and fact.

The question which we must determine is whether an appeal from a judgment for alimony is now, by virtue of the above-noted amendment of the Constitution and the statutes, subject to an appeal on questions of law and fact.

Article IV, Section 6, of the Constitution of Ohio says, in part:

“The Courts of Appeals shall have * * * such jurisdiction as may be provided by law to review, affirm, modify, set aside, or reverse judgments or final orders * * * of courts of record inferior to the Court of Appeals * * *.”

Section 8003-21, General Code (now Section 3105.20, Revised Code), said, in part:

‘«* * * in any matter concerning domestic relations, the Court of Common Pleas shall not be deemed to be deprived of its full equity powers and jurisdiction. ’ ’

Did the Legislature change the appellate jurisdiction in divorce and alimony cases by enacting, as a part of the statute (Section 8003-21, General Code), the statement above set out?

In Youngstown Municipal Ry. Co. v. City of Youngstown, 147 Ohio St., 221, 70 N. E. (2d), 649, the court said:

“1. Section 6 of Article IV of the Constitution of Ohio, as amended November 7, 1944, empowers but does not require the General Assembly to change the appellate jurisdiction of the Courts of Appeals.
“2. Unless and until there is such legislative action, the appellate jurisdiction of the Courts of Appeals remains as it was at the time the amendment was adopted.”

In the case of Roper v. No-Leak Roofing & Paint Co., 94 Ohio App., 335, at p. 337, 115 N. E. (2d), 185, the court said:

“Whether a given action is one in chancery or at law has vexed the courts of Ohio for many years. Numerous cases illustrate the problem. These cases illustrate also the application of the rule that the character of the action is determined from the issues raised by the pleadings and the relief sought. ’ ’

The appellate court was stating again what the Supreme Court of Ohio has determined in many cases, for it is well settled that the question as to whether a proceeding is a case in chancery or an action at law is to be determined from the pleadings and from the issues established by those pleadings. Gantz v. Village of Louisville, 155 Ohio St., 425, 99 N. E. (2d), 308; Connelly, Trustee, v. Balkwill, 160 Ohio St., 430, 116 N. E. (2d), 701.

“1. A chancery case is one in which, according to the usages and practices in courts of chancery prior to and at the time of the adoption of the code of civil procedure, remedies were awarded in accordance with the principles of equity and not in accordance with rules of law. * * *” In re Estate of Stafford, 146 Ohio St., 253, 65 N. E. (2d), 701.

An examination of the pleadings filed in the trial court discloses that the petition sought a divorce, division of property, and an award of alimony. There was a request for “such other and further relief” as the plaintiff below might be entitled to receive, but such general allegation did not change the nature of the relief asked. The cross-petition also sought a divorce, and an injunction to restrain the disposition of any property during the pendency of the case.

There was no occasion for the trial court, except as to the injunction, to exercise any equity powers. Divorce and alimony are creatures of statute, and they exist in this state only by reason of legislative enactment. They do not usually call upon the courts to exercise general equity powers. They are not chancery proceedings. Marleau v. Marleau, 95 Ohio St., 162, 115 N. E., 1009; Durham v. Durham, 104 Ohio St., 7, 135 N. E., 280.

Situations sometimes arise in a divorce and alimony matter wherein the trial court may be called upon to exercise general equity powers, such as determining the equitable owner of property where the legal title is in a third person party to the divorce action. In such a situation, the domestic relations case will bring before the court issues other than the controversy between husband and wife. It was for the purpose of affording full relief in such matters that the sentence above quoted from the statute (Section 8003-21, General Code) was enacted. This statute did' not grant power, but said that the Court of Common Pleas in a domestic relations case ‘ ‘ shall not be deemed to be deprived of its full equity powers and jurisdiction.”

Courts of Common Pleas have equity powers and jurisdiction, but in cases heard by such courts there is not, for that reason, the right to appeal on questions of law and fact. The right to exercise “equity powers and jurisdiction” does not make such causes chancery actions. If the contention of the appellant, Dougherty, were true, in all matters heard by a court having equity powers there would ipso facto be the right of appeal on questions of law and fact.

We therefore determine that the appeal in the instant case does not lie on questions of law and fact.

The appeal, on such questions shall be dismissed, but it shall be retained on questions of law only. The appellant will be given 30 days to file his bill of exceptions. The costs incurred on the filing of the motion to dismiss, the amended notice of appeal, and the disposition of said motion, will be assessed against the appellant, Harriett E. Dougherty.

Judgment accordingly.

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


author: Wiseman, P. J.

text:
    Ohio Casualty Ins. Co., Appellee, v. Guterman, Appellant.
    (No. 2267
    Decided April 7, 1954.)

      Messrs. Landis, Ferguson, Bieser é Greer, for appellee.

      Messrs. Herzog & Gallon, for appellant.
   Wiseman, P. J.

This is an appeal on questions of law from the Common Pleas Court of Montgomery County, which rendered judgment in favor of the plaintiff in an action to replevin an automobile.

The cause was submitted to the court on an agreed statement of facts, which is as follows:

“1. On September 19, 1950, Brady Motors, Inc., an Illinois corporation, was the owner of and held a duly issued Illinois certificate of title to, a 1950 Pontiac two-tone club coupe automobile, motor and serial No. P-8.-T-H-4052.
“2. On September 19, 1950, said automobile was stolen from the lot of Brady Motors, Inc., 3738 West 63d Street, Chicago, Illinois.
“3. Pursuant to a contract of insurance with Brady Motors, Inc., the Ohio Casualty Insurance Company paid to Brady Motors, Inc., the sum of two thousand, three hundred fifty-three and 50/100ths dollars ($2,353.50) upon proof of loss of said automobile, and in consideration of that payment, Brady Motors, Inc. duly assigned its title to said automobile to the Ohio Casualty Insurance Company.
“4. Thereafter defendant in good faith purchased the same automobile from John E. Terebist, d. b. a. Veterans Auto Exchange, in Bossier City, Louisiana, who was a person other than the thief and held title through an intermediary purchaser. Defendant brought the automobile into the state of Ohio, and had issued to him an Ohio certificate of title thereto, which defendant held at the time this action was filed.
“5. The value of said automobile at the present time is one thousand, three hundred fifty dollars ($1,350).”

The defendant contends that the judgment is contrary to law. The question presented may be concisely stated as follows: Can plaintiff, holder of a valid Illinois certificate of title to an automobile, maintain an action in replevin in Ohio against defendant, who holds an Ohio certificate of title to said automobile which is derived from a person who stole the au.tomobile from the assignor of the plaintiff?

The issue is determined by proper application of the provisions of Section 6290-4, General Code, which in part provides:

“No court in any case at law or in equity shall recognize the right, title, claim, or interest of any person in or to any motor vehicle, hereafter sold or disposed of, or mortgaged or encumbered, unless evidenced by a certificate of title or manufacturer’s or importer’s certificate duly issued, in accordance with the provisions of this chapter. ’ ’

It is axiomatic that in a replevin action the plaintiff must rely on the strength of his own title or right to immediate possession, and not on the weakness of the title or right of possession of the defendant. Smith v. Barrick, 151 Ohio St., 201, 85 N. E. (2d), 101.

Which has superior title and the right of immediate possession under the facts in this case ? This appears to be a case of first impression in Ohio.

At common law, no person can derive title or right of possession from a thief, as against the rightful owner. Does Section 6290-4, General Code, change the rule under the circumstances in this case ? Defendant contends that, under this statute, before the plaintiff can maintain the action it must show the possession of a certificate of title issued under the Ohio law; and that since the defendant holds a certificate of title under the Ohio law, the defendant should prevail against the claim of the plaintiff. In support of this proposition defendant cites the following cases: Mielke v. Leeberson, 150 Ohio St., 528, 83 N. E. (2d), 209, 7 A. L. R. (2d), 1342; Kelley Kar Co. v. Finkler, 155 Ohio St., 541, 99 N. E. (2d), 665; White-Alien Chevrolet Co. v. Licker, 51 Ohio Law Abs., 394, 81 N. E. (2d), 232. In the Mielke case, plaintiff sued to recover damages to his automobile caused by an automobile collision. The court held that in the absence of the production in evidence of a certificate of title plaintiff could not recover. In the Kelley Kar Co. case, a dealer in California sold an automobile to Anderson, reserving title under a conditional sales contract. Anderson took the automobile to Vermont, where it was registered, and later appeared in Ohio where he procured an Ohio certificate of title. The defendant, Finkler, purchased the automobile from Anderson, and an Ohio certificate of title was issued to him. The Kelley Kar Company, the dealer in California, brought a replevin action against Finkler. The court approved the syllabus in the Mielke case, and held that the plaintiff could not prevail since its claim was not evidenced by certificate of title. The court discussed at some length and refused to apply the law of comity. The court, on page 551, discussed the protection given by the courts to an innocent purchaser in such cases. The court said:

“Innumerable cases can be cited wherein one in possession of an automobile and claiming title thereto through purchase in good faith and payment of value therefor was protected against claims based upon instruments executed in a state foreign to the state of the forum. In some instances the decisions were based upon certificate of title laws; in others the courts have held that the one who gave up possession of the automobile together with some indicia of title should suffer rather than a subsequent-innocent purchaser for value. The conclusions are not always reached by the same reasoning but the results are the same. * * *
“The General Assembly of the sovereign state of Ohio, has declared the policy of this state by enactment of the Certificate of Title Act, containing Section 6290-4, General Code. The appellee has not complied with that law. The appellant has complied with it. Therefore, the appellee cannot prevail and procure possession of the automobile in question.”

In the White-Alien case, supra, the owner falsely reported a theft, and afterwards sold the automobile, and through several transfers ownership came to the plaintiff dealer, who in turn sold the automobile to a customer. The automobile was taken from the customer as a stolen automobile. The plaintiff dealer refunded the purchase price to the customer, and then sued its vendor for the price paid therefor. The court held that good title was passed in each transaction and that plaintiff could not recover. In our opinion, these cases are not controlling. In the Mielke and Kelley Kar Co. cases, the plaintiffs were unable to produce valid certificates of title.

The appellee relies on Mock v. Kaffits, Chief of Police, 75 Ohio App., 305, 62 N. E. (2d), 172, where an automobile was stolen from the owner in Pennsylvania. The insurance company paid the owner for the loss and a certificate of title was issued to the insurance company. Registration papers, purporting to have been issued by the state of New York,, were presented in Ohio, and, thereupon, a certificate of title was issued in the name of Randall, who assigned it to a dealer in Columbus, Ohio, which in turn sold it to the plaintiff. It appears that the motor number had been changed and that the plaintiff’s certificate of title carried a false number. Plaintiff sought to replevin the automobile from the chief of police. However, the contest was between the plaintiff and the insurance company, which intervened. The trial court found that the Ohio certificate of title issued to Randall was void ab initio and that the Pennsylvania certificate of title issued to the insurance company was valid. The Court of Appeals affirmed the judgment. In the opinion by the Court of Appeals, on page 307, the court states that but for the presence of the Ohio certificate of title law, the problem would be promptly solved by the application of the rule that stolen property is recoverable from an innocent purchaser so long as it is susceptible to identification. In that case, the plaintiff contended, as does the defendant in this case, that the certificate of title issued under the Ohio law is conclusive evidence of ownership and right of possession. The court,.on page 308, said:

“Just what is the purpose of the Certificate of Title Act? The answer is found in Automobile Finance Co. v. Munday, 137 Ohio St., 504, 521, 30 N. E. (2d), 1002, wherein Judge Turner stated that ‘the very purpose of the law is to protect ownership against fraud. ’ If plaintiff’s theory be adopted, it must be perceived that the avowed purpose of the act would be frustrated. It would become a shield to the thief’s criminal act and would stamp with the law’s approval the source of title which flows from him. It would surely follow that Ohio might be made the dumping ground for stolen cars.”

On page 309, the court said:

“If plaintiff is to prevail he must do so on the strength of his own title. If evidence of title has been procured through fraud and deception, the title of a subsequent innocent holder for value, which arose therefrom, can have no greater solemnity than the source from which it sprang.”

See, also, Associates Discount Corp. v. Colonial Finance Co., 88 Ohio App., 205, 98 N. E. (2d), 848.

We are satisfied to apply the reasoning in these two cases to the facts in this case. Certainly, the Ohio certificate of title law was never intended to operate as a shield to a thief and a sword to the innocent. The question arises whether the Mock case, supra, is still the law, in view of the opinion in the Kelley Kar Co. case, which came later. In the case of In re Swesey, 112 F. Supp., 773 (U. S. District Court for the Northern District of Ohio, Western Division), an Ohio resident purchased an automobile in Michigan, and because he was employed in Michigan, had issued to him by that state a certificate of title. To secure a part of the purchase price he executed a note secured by chattel mortgage in favor of the dealer, who assigned the note and chattel mortgage to a bank in Michigan. The chattel mortgage was filed in Wayne County, Michigan. All the requirements of the Michigan law were complied with, but no certificate of title was issued by Ohio. The purchaser went into bankruptcy in Ohio, and the bank asserted its claim and lien. Judge Kloeb, in commenting on the Mielke and Kelley Kar Co. cases, found that they were not analogous on the facts and were not controlling. In commenting further on the ruling in the Kelley Kar Co. case, the court, on page'776, said:

‘ ‘ Syllabus 3 in that case indicates that the court was construing the statute as applicable only to automobiles sold or encumbered in the state of Ohio and did not intend to give the statutes any extra-territorial effect.”

In discussing the effect of Section 6290-4, General • Code, the court, on page 776, said:

“There is nothing in the Ohio certificate of title law which indicates an intention on the part of the Legislature to make a transaction of this kind, valid under Michigan laws, void under the laws of Ohio, and the court will not read into the statute language which is not there.
‘ ‘ The Supreme Court of Ohio apparently recognized the distinction above referred to, and that the law has no extra-territorial effect, in the case of State, ex rel. City Loan & Savings Co., v. Taggart, 134 Ohio St., 374, 379, 17 N. E. (2d), 758, 760, holding the Ohio certificate of title law constitutional, in which the court said:
‘No extra-territorial scope may be given to these sections. The law must be limited in its operation to those manufacturers, etc., who are subject to the jurisdiction of Ohio, and to those persons in Ohio who are obligated to secure a certificate of title under the law of this state. If they do not present the documentary proof demanded they are not entitled to a certificate.’” (Emphasis added.)

The court cited the case of Mock v. Kaffits, supra, and on page 777 said:

“(2) That an out-of-state certificate of title may be recognized by the courts of Ohio.without an Ohio certificate of title being issued therefor to the owner is held in the case of Mock v. Kaffits, Franklin County, 1944, 75 Ohio App., 305, 62 N. E. (2d), 172.”

In 18 A. L. R. (2d), 813, there appears an extended annotation on the motor vehicle certificate of title law. On page 839 the case of Mock v. Kaffits, supra, is cited as being in accord with a few cases involving attempted sales of motor vehicles by persons who had obtained possession of the vehicles and accompanying documents of title by outright theft. In such cases the rights of the true owners have been protected as against subsequent purchasers. The editor cites a Texas case as follows:

“Recognizing that ordinarily where one has clothed another with the indicia of ownership of personal property he might be estopped to assert title as against a purchaser from one having such indicia, the court in McKinney v. Groan (1945), 144 Tex., 9, 188 S. W. (2d), 144, held that this rule was not applicable where the defendant’s vendor had stolen the vehicle and the certificate of title, which had been indorsed in blank by the original owner. The purchasers from the thief were also held not to be entitled to assert any claim since they failed to comply with the statutory provision requiring a purchaser of a motor vehicle to secure a certificate of title in his own name before he sold it, a sale without compliance with the statute, as in the instant case where the thief merely transferred the previous owner’s certificate, being void.”

In our opinion, the rights of the plaintiff should prevail over the rights of the defendant who bases his right of ownership and immediate possession on a prior theft.

Judgment affirmed.

Miller and Hornbeck, JJ., concur.


author: Per Curiam.

text:
    Village of Bridgeport, Appellee, v. Fraternal Order of Eagles, Aerie No. 995, Appellant.
    (No. 894
    Decided January 8, 1954.)

      Mr. Harold B. Thomas, for appellee.

      Mr. Simon F. Carpino and Mr. Benjamin S. Schwartz, for appellant.
   Per Curiam.

It is now settled that “bingo” for any purpose whatsoever is unlawful in Ohio. See City of Columbus v. Barr, 160 Ohio St., 209, 115 N. E. (2d), 391.

Ordinance No. 669 of the village of Bridgeport, Belmont County, Ohio, in force on January 21, 1952, provides as follows:

“Ordinance No. 669 — To prohibit gambling and provide penalties for violations.
“Be it ordained by the council of the village of Bridgeport, state of Ohio:
‘ ‘ Section 1. That it shall be unlawful to keep or exhibit for gain, a gambling device or machine by whatever name or designation it may be known, within the village of Bridgeport, Ohio.
“Section 2. That it shall be unlawful to establish, open, carry on or promote any scheme of chance by whatever name, style or title denominated or known within the village of Bridgeport, Ohio.
“Section 3. That whoever violates the provisions of sections 1 or 2 of this ordinance shall be deemed guilty of a misdemeanor, and upon conviction, shall be fined not less than the sum of $100 for each violation, and each day of violation shall be deemed to be a separate and distinct offense.
“Section 4. That this ordinance shall be in force and effect from and after the earliest period allowed by law. ’ ’

The affidavit upon which the defendant, Fraternal Order of Eagles, Aerie No. 995, was charged, convicted, and sentenced is as follows:

“In the Mayor’s Court of Bridgeport, Belmont County, Ohio.
“Neal Schafer, Mayor, State of Ohio, Village of Bridgeport, v. Fraternal Order of Eagles No. 995, Bridgeport, Ohio.
“Affidavit Charging Offense, Violation of State Law
“State of Ohio, Bridgeport, Belmont County, SS.
“Before me, Neal Schafer, Mayor of Bridgeport, in and for said county, personally came Robert Sutton who, being first duly sworn according to law, deposes and says that on or about the 21st day of January, 1952, at Bridgeport, county of Belmont, state of Ohio, The Fraternal Order of Eagles Aerie No. 995 in the village of Bridgeport, Ohio, did unlawfully operate and carry on a scheme of chance, to wit, bingo. That Wm. Benline is a trustee for said Fraternal Order of Eagles No. 995 and permitted said scheme of chance to operate, contrary to the form of the ordinances in such cases made and provided, and against the peace and dignity of the village of Bridgeport, state of Ohio, further, deponent says not.
“Robert Sutton.”

The burden was on the village to prove every essential element necessary to a conviction of the defendant. The jury did not convict the trustee named in the affidavit.

Nothing in the record shows or indicates that the Fraternal Order of Eagles, Aerie No. 995, is incorporated. Of course it is not a natural person. The word, “whoever,” used in the ordinance can mean only a natural person or a corporation. In the case of State v. Fremont Lodge of Loyal Order of Moose, 151 Ohio St., 19, 84 N. E. (2d), 498, the Supreme Court of Ohio held in the syllabus, as follows:

“1. The criminal law of Ohio is statutory.
“2. Penal statutes are strictly construed. Where a statute defining an offense designates one class of persons as subject to its penalty, all other persons are deemed to be exempted therefrom. (State v. Associates Investment Co., 136 Ohio St., 456, approved and followed.)
“3. There is no provision in the criminal laws of this state for the prosecution of an unincorporated voluntary group or association as an entity.
“4. An unincorporated group or association does not come within the definition of ‘whoever’ in Section 13067, General Code, or Section 12371, General Code.
“5. An information which charges an unincorporated group or association with an offense is demurrable. ’ ’

In his charge to the jury the judge stated :

‘ ‘ I further charge you that a corporation or an association may and can, as a matter of law, be guilty of a misdemeanor if the offense charged to and against it was done with the knowledge or at the direction and instance of the officers, directors or trustees of the corporation or association and in such event the corporation or association could be as guilty as a natural person would be if he or she had committed the same act. ’ ’

By such charge the trial court was clearly in error and thus is explained the conviction of the defendant, there being no evidence that the defendant was other than a voluntary association of persons without corporate entity.

Although there are other errors in the charge to the jury and in the sentence imposed by the trial court, mention of such errors is superflous since the conviction of the defendant was unauthorized and contrary to law.

Accordingly, the judgment of the trial court is reversed, and the defendant is discharged.

Judgment reversed.

Griffith, P. J., Phillips and Nichols, JJ., concur.


author: Hildebrant, J.

text:
    Treadway, Appellant, v. Treadway, Appellee.
    (No. 7860
    Decided April 26, 1954.)

      Mr. Edward K. Halaby, for appellant.
    No appearance for appellee.
   Hildebrant, J.

Plaintiff filed a divorce petition in the Common Pleas Court, Division of Domestic Relations, alleging the statutory grounds of gross neglect of duty and extreme cruelty. Service by publication was had and approved by the court.

The suit being uncontested on the day set for hearing, the plaintiff appeared with witnesses to offer proof of the allegations of the petition and was represented by counsel.

At that time, based on information obtained by investigative agents of the court that plaintiff had been previously married, the court invoked a rule requiring plaintiff to prove the legal dissolution of his former marriage before being permitted to offer proof of his allegations in this suit. Plaintiff orally testified he had received some divorce papers from his former wife, although uncertain as to the time thereof, vaguely around the year 1940, and could offer no further proof of the legal dissolution of his former marriage.

Apparently, upon the theory that the court should require proof of a valid marriage before passing upon a petition for divorce therefrom, the court refused to hear evidence in the case at bar until proof of legal dissolution of the former marriage was forthcoming and, on plaintiff’s being unable to offer more than his oral testimony, as stated above, the court dismissed his petition, without prejudice, for want of prosecution.

This is the order appealed from.

Section 3105.10, Revised Code, provides in mandatory terms in part: “The Court of Common Pleas shall hear any of the causes for divorce charged in the petition * * V’

By invoking its rule in this suit and refusing to hear the causes for divorce alleged in the instant case, the court failed to follow the mandatory provisions of the statute.

Even had it appeared that plaintiff herein had a wife living at the time of the marriage from which divorce is sought here, the court is required to hear the case.

One of the grounds of divorce set out in Section 3105.01, Revised Code, is:

“ (A) Either party had a husband or wife living at the time of the marriage from which the divorce is sought. ’ ’

When a divorce is sought on that ground, the Supreme Court has said in Eggleston v. Eggleston, 156 Ohio St., 422, 103 N. E. (2d), 395:

“Section 11979, General Code, authorizing the granting of a divorce where ‘either party had a husband or wife living at the time of the marriage from which the divorce is sought,’ provides an exclusive remedy in cases involving that situation.
“Where a decree of divorce is granted on the petition of a woman on the ground that the defendant had a wife living at the time of his marriage with the plaintiff, the court has jurisdiction to grant to the plaintiff alimony and other relief authorized by the statutes on divorce and alimony.”

The court quoted from Smith v. Smith, 5 Ohio St., 32, and Van Valley v. Van Valley, 19 Ohio St., 588, and stated, at pages 427 and 428 of the opinion :

“The effect of that holding is that, under the provisions of the statute authorizing a divorce on the ground that either party had at the time of the marriage a husband of wife living, there is granted the right to the relief provided in the supplemental statutory provisions.”

Assuming the existence of a former marriage, yet the marriage from which divorce is here sought created a relationship of husband and wife subject to the supplemental satutory provisions relating to divorce and affected by the public interest in the present status of that relationship. This court said in Smith v. Smith, 72 Ohio App., 203, at 217, 50 N. E. (2d), 889:

“The relation between the parties contained a congenital defect that passage of time could not remove. The defendant had and has a husband other than the plaintiff. They cannot live together in Ohio as man' and wife without violating the criminal laws and offending against the public policy of the state. They have ceased to live together and now ask the court to judicially declare that the marriage relation does not exist and has not existed between them. The court has jurisdiction to so decree and public policy and the mandate of the statute requires that it exercise that jurisdiction, so that the parties and the public may know their status. The decree of the court will do no more than judicially declare what already exists in fact.”

Proof of a prior existing marriage would only be another ground for divorce, here available to either party, and we know of no rule which prevents a plaintiff from choosing among several grounds for divorce upon which to proceed.

The judgment will, therefore, be reversed and the cause remanded with instructions to hear and determine the causes for divorce set forth in the petition.

Judgment reversed.

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


text:
    Shawd, Admx., Appellant, v. Donohoe et al., Appellees.
    (No. 4998
    Decided February 26, 1954.)

      Messrs. Gollopy, Jones & Newlon, for appellant.

      Mr. Bruce G. Lynn, for appellee H. L. Donohoe.

      Mr. Paul B. Gingher, Messrs. Arter, Hadden, Wykoff é Van Duser and Mr. G. M. Horn, for appellees Robert D. Taylor, The Cleveland Clinic Foundation and The Cleveland Clinic Company.
   Per Curiam.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Franklin County in an action sounding in tort, brought by Roberta Shawd, administratrix of the estate of John A. Shawd, deceased, against H. L. Donohoe of Columbus, Ohio, and Robert D. Taylor, The Cleveland Clinic Foundation and The Cleveland Clinic Company of Cleveland, Ohio.

One of the defendants being a resident of Franklin County and the others being nonresidents, the nonresidents filed motions to quash the service of summons on the ground of misjoinder. From an order sustaining the motions, the plaintiff appeals.

That the question of misjoinder may be raised by motion to quash service of summons is well established. Canton Provision Co. v. Gauder, a Minor, 130 Ohio St., 43, 196 N. E., 634.

If defendants are properly joined, summonses may be issued to any other county against one or more nonresident defendants. Section 11282, General Code. Were the defendants here properly joined as contemplated by Section 11255, General Code?

Our Supreme Court recently ruled on the question of joinder in Meyer v. Cincinnati Street Ry. Co., 157 Ohio St., 38, 104 N. E. (2d), 173, and in the syllabus held:

“1. Where damage or injury is proximately caused by independent but concurrent wrongful acts of two or more persons, joint liability results, and such wrongdoers may be joined as defendants even though they may not have acted in concert in the execution of a common purpose and the want of care of such defendants may not have been of the same character, and joint or several judgments may be rendered against such wrongdoers.
“2. The predicate of joint liability is not necessarily limited to the commission of a joint act or joint tort. (Paragraph three of the syllabus of Stark County Agricultural Society v. Brenner, an Infant, 122 Ohio St., 560, overruled.)”

The court in its opinion, on page 41, said :

“The concept that ‘joint liability’ can arise only from the commission of a ‘joint tort’ is fundamentally unsound. Joint liability can arise from the concurrent commission of independent wrongful acts, each having causal connection with the injury or damage complained of.”

And on page 44 the court said further:

“It is the opinion of this court that Section 11255, General Code, reasonably construed, does not limit the right to join defendants to situations where the defendants have committed a joint tort in the sense that they have committed a wrongful act in concert in the execution of a common purpose and where the want of care of each is of the same character as the want of care of the other.
Í C # *
“* * * If two or more persons have concurrently committed independent wrongful acts each having proximate causal connection with the injury or damage complained of, each of such persons has such interest in the controversy adverse to the injured person as to warrant joinder of such persons as defendants in an action brought by the injured or damaged person. ’ ’

In Garbe v. Halloran, 150 Ohio St., 476, 83 N. E. (2d), 217, the first and second paragraphs of the syllabus are as follows :

“1. Concurrent negligence consists of the negligence of two or more persons concurring, not necessarily in point of time, but in point of consequence, in producing a single indivisible injury.
“2. Where the negligence of an earlier wrongdoer remains a dangerous force until the negligence of a later wrongdoer concurs and combines with it to cause injury, the wrongdoers are concurrent tort-feasors and their combined negligence becomes the proximate cause of the injury.”

In Davis, Admr., v. Lanesky, 91 Ohio App., 125, 107 N. E. (2d), 919, the second and third paragraphs of the syllabus are as follows:

“2. A cause of action is stated against two defendants, even though neither common duty, common design nor concerted action may be shown, where a case is alleged of concurrent negligence on their part in producing a single indivisible injury.
“3. The test for determining the propriety of joinder of parties defendant is not that of concert of action, and a joinder is proper where the wrongful acts of two defendants acting independently have concurred in producing a single injury. ’ ’

And on page 129 the court, in discussing the pleadings in that case, said:

“Taking the allegations of the petition as they stand, it seems to us that a cause of action is stated against both defendants in that, even though neither common duty, common design, nor concerted action may be shown, a case is made out of concurrent negligence in producing a single indivisible injury within the language of Wery v. Seff, supra, and Garbe v. Halloran, supra.

And on page 130 the court said further:

“In the present case, the wrongful death of plaintiff’s decedent allegedly involves the wrongful acts of two defendants acting independently who have concurred in-producing a single injury.”

Does the petition in the instant case meet the test laid down?

The pertinent part of the petition is as follows :

“Plaintiff says that at all times herein complained of, the defendant, The Cleveland Clinic Foundation and The Cleveland Clinic Company are corporations organized and existing under and by virtue of the laws of the state of Ohio and are engaged in the practice of medicine and in the business of conducting a hospital for profit, where, for a consideration, patients are prescribed for and treated and where interns and resident doctors and other professionals are hired to treat patients and to perform operations for and on behalf of The Cleveland Clinic Foundation and The Cleveland Clinic Company. Plaintiff further says that at all times herein complained of the defendant Dr. H. L. Donohoe was a practicing physician in the city of Columbus, Ohio, and the defendant Dr. Robert D. Taylor was a practicing physician in the city of Cleveland, Ohio. Plaintiff says that Dr. Robert D. Taylor, Dr. H. L. Donohoe and the above corporate defendants were jointly and severally engaged in the enterprise of the medical treatment of the defendant’s decedent and were so doing on September 17, 1950. Plaintiff says that plaintiff’s decedent was directed by Dr. H. L. Donohoe to visit The Cleveland Clinic Company and/or The Cleveland Clinic Foundation, and was there treated by Dr. Robert D. Taylor, a practicing physician employed by or acting for the said Cleveland Clinic Company and/or the Cleveland Clinic Foundation. Dr. Taylor examined said decedent, prescribing a course of medical treatment for the control of his weight and for headaches with which he had been suffering.
“Plaintiff says that the defendant Dr. Robert D. Taylor gave to said decedent a prescription for seventy (70) capsules of Lillys Pulvoules Aminopyrine with Amytol with directions for talcing the same; that said decedent obtained the same and took sixty-four (64) of said capsules as directed. Dr. Taylor thereafter, in writing, advised Dr. Donohoe of the treatment prescribed for plaintiff’s decedent.
“Plaintiff says that during the period of time plaintiff’s decedent was talcing the prescribed medicine as directed and as a result of taking the same, gangrene set in in his left great toe, he became ill with numerous ailments, and that on or about the 8th day of September, 1950 he was placed in the hospital by Dr. H. L. Donohoe for an ailment diagnosed as a sore throat; that he became rapidly worse and died September 17, 1950.
“Plaintiff says that the defendants’ failure, severally and jointly, to use due and proper care and diligence in the treatment of plaintiff’s decedent was the sole and proximate cause of the decedent’s illness above described.”

The essential and determinative allegations are that Donohoe referred the decedent to the clinic. It may be conceded that joint liability would not result from the mere referral. Taylor diagnosed the case and prescribed the treatment. Donohoe had nothing to do with the diagnosis or the prescribing of the treatment. The decedent returned to Columbus and took the treatment as directed. The petition does not state the date of the referral to the clinic, the date when decedent went to the clinic, or the period of time during which decedent was under the treatment prescribed by Taylor. Decedent'did not communicate with Donohoe until September 8, 1950, after he had used 64 of the 70 capsules prescribed. The decedent then was ill with numerous ailments. Donohoe placed decedent in the hospital in Columbus for an ailment which he diagnosed as a sore throat. Decedent then became rapidly worse and died nine days later.

It is not essential to allege facts showing that defendants jointly committed a tort. “Joint liability can arise from the concurrent commission of independent wrongful acts, each having causal connection with the injury or damage complained of.” Meyer v. Cincinnati Street Ry. Co., supra. The negligence of two persons need not concur in point of time, “but in point of consequence, in producing a single indivisible injury.” Garbe v. Halloran, supra. Where the negligence of one wrongdoer continues until the negligence of a later wrongdoer concurs and combines with it to cause injury, the wrongdoers are concurrent tortfeasors and their combined negligence is the proximate cause of the injury.

In the instant case, it is alleged in effect that the negligence of Taylor continued until the negligence of Donohoe, after September 8,1950, concurred and combined with the negligence of Taylor to cause one indivisible injury, resulting in the illness and death of the decedent, and that the combined negligence proximately caused the illness and death of the decedent.

The judgment is reversed and the cause remanded for further proceedings according to law.

Judgment reversed.

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


text:
    Henle, Appellee, v. City of Euclid et al., Appellants.

      (No. 23021
    Decided April 7, 1954.)

      Mr. Hubert B. Fuller and Mr. Perry L. Graham, for appellee.

      Mr. Paul H. Torbet, for appellants.
   Skeel, J.

This appeal comes to this court on questions of law and fact from a decree for the plaintiff entered by the Common Pleas Court of Cuyahoga County.

The action is one seeking a declaratory judgment, injunction and equitable relief. The plaintiff is the owner of a vacant lot at the northeast corner of Lake-land Boulevard and Babbitt Road in the city of Euclid. The defendants are the city of Euclid, the mayor of the city of Euclid, the building commissioner of the city of Euclid, and the Attorney General of the state of Ohio.

The petition alleges that Euclid is a city of approximately 50,000 inhabitants, and, in addition to a very large residential area, there are within its boundaries many large industrial plants in areas zoned for industrial use. It is alleged that Lakeland Boulevard (also known as state route No. 2, a main state through highway extending easterly and westerly from Cleveland) is a heavily travelled highway used by trucks, busses and passenger cars, and that much of the commercial traffic is interstate as well as intrastate in character. It is alleged also that Babbitt Road is a main thoroughfare, heavily travelled, with busses, trucks and passenger cars running from Euclid Avenue to Lake Shore Boulevard, much of which traffic is interstate.

The plaintiff says further that the city of Euclid passed a zoning ordinance, effective November 13, 1922, the city then being a village. By the terms of snch ordinance, the village (now the city of Euclid) regulated and zoned the entire territory of the village under a comprehensive zoning plan, limiting the uses to which property in the several zones could be devoted, as designated by the zoning map; that since 1922 said ordinance has been amended from time to time, changing the use districts, as shown by the revised zoning maps; that such an amendment was passed December 30, 1950, changing and increasing the classifications as follows: U-l, parks and single-family residences; U-2, two-family residences; U-3, apartments, hotels, hospitals, etc.; U-4, local retail business, including banks, garages, and grocery stores; U-4A, retail gasoline stations; U-4B, undertaking establishments; U-4C, night clubs, hotels, etc.; U-5, commercial; U-6, industrial; U-7, prohibited uses.

It is alleged further that by the provisions of the zoning ordinances the city council has the right either upon its own motion or upon application after public notice and hearing to amend the regulations and districts after referring the proposed change to the city planning and zoning commission (Board of Zoning Appeals) for report; that the planning commission is authorized to recommend amendments provided such amended use in such location will not, in its judgment, substantially and permanently injure the appropriate use of neighboring property, and provided the petitioning applicant files with the application the written consent of 80 per cent of the owners of property within 200 feet of the applicant’s property.

The plaintiff alleges that the Sun Oil Company has, by written contract, offered to buy her lot described in the petition for $15,000, provided it could be rezoned to permit the erection and operation of a gasoline filling and service station; that the Sun Oil Company made an application to the building commissioner for a permit, which was deferred until the property was reclassified from U-4 to U-4A; that a request was addressed to the city council of Euclid, seeking such reclassification, accompanied with the written consent of more than 80 percent of the property owners within 200 feet of such lot; and that several hearings were had on such application, the application at one time during the investigation being referred to the Board of Zoning Appeals. The Board of Zoning Appeals reported unfavorably on the application because the property would most likely be needed in the construction of the proposed Lakeland Freeway. The city council, subsequent to receiving the report of the zoning board, refused to rezone the property for the same reasons that influenced the Board of Zoning Appeals to file its report against such change.

With minor exceptions, there is no dispute about the foregoing allegations of fact. The plaintiff’s petition alleges further that as to her property the zoning ordinance is unconstitutional and confiscatory, and that the action of the city council in refusing to rezone plaintiff’s lot from a U-4 to a U-4 A use, was arbitrary, unreasonable and constituted an abuse of discretion, and prays for an order holding the zoning ordinance unconstitutional as to plaintiff’s property, and seeks a mandatory injunction requiring the necessary permits to build a filling station on her property at Babbitt Road and Lakeland Boulevard in such city.

The answer of the defendants admits the zoning ordinance as pleaded by the plaintiff and that there is no property now zoned in the city for U-4A use, except one parcel at the corner of Euclid Avenue and Richmond Road; admits that an application was made to rezone plaintiff’s lot for filling station purposes; denies that plaintiff made the application or that it was made as claimed by plaintiff’s petition: and admits that a public hearing was had before the board of zoning appeals and the city council, but not as alleged by plaintiff. The answer denies that plaintiff’s property is valueless under the Ü-4 zoning restriction and alleges that a filling station would adversely affect the residential property in the territory to the north and the safety of the school and playground across the street to the west. It is alleged also that the city is well supplied with filling stations, that there is no necessity for constructing new ones, and that the plaintiff did not prove to the city council or the Zoning Board of Appeals that an additional filling station was necessary to promote the public convenience. The answer alleges further that there is to be constructed through the city of Euclid the Lakeland Freeway, the center line of which has been fixed by council, thereby determining the land needed in its construction; that plaintiff’s property is within the right of way and needed for that purpose; that no building can or will be permitted to be constructed which will be detrimental to the freeway; and that administrative steps have been taken to appropriate the necessary property for such freeway. But there is no allegation that negotiations or legal proceedings are immediately contemplated or pending, seeking to subject the plaintiff’s property to public use. The defendants pray that plaintiff’s petition be dismissed.

All affirmative allegations in the answer inconsistent with the plaintiff’s petition are denied by plaintiff’s reply.

The plaintiff’s action is for a declaratory judgment seeking to have the restrictions of the zoning ordinance of Euclid declared unconstitutional as confiscatory and unreasonable in preventing her from using her property, described in the petition, for filling station purposes and seeking a mandatory injunction compelling a permit and directing that a permit be issued for that purpose. This court held, in the case of Criterion Service, Inc., v. City of East Cleveland, 55 Ohio Law Abs., 90, 88 N. E. (2d), 300, that a property owner is a proper party plaintiff in seeking injunctive relief against an ordinance affecting his property which he claims to be unconstitutional, without complying with administrative procedure provided for by such ordinance. It is also the right of plaintiff under the declaratory judgment act to prosecute this action. (Section 2721.03, Revised Code.) Nor is the fact that the application for a permit to build a filling station was filed by the Sun Oil Company instead of plaintiff, detrimental to plaintiff’s case. It is enough that an application was made for a permit to use this property for a filling station, by one having a contingent interest in using the property for that purpose, that the city council was petitioned for relief from the zoning classification, that the Board of Zoning Appeals did act on such application at the request of the city council, and that the consent of more than 80 per cent of the property owners within 200 feet of the property was obtained, each of the procedural steps having been taken at the direction of the officials of the city, so that if there were any defects in administrative procedure, it should not be permitted to prejudice plaintiff’s rights under the admitted circumstances of this case.

The issue that gasoline stations are not needed in Euclid seems to have been abandoned in the briefs. Zoning ordinances cannot be concerned with the question of the economic rules of supply and demand. Such an issue has no place in this kind of an action. Zoning ordinances are not the media through which restrictions may be placed on who may engage in legitimate enterprise.

The claim that the city has the right to “freeze” plaintiff’s property, preventing her from its beneficial use until the city gets around to appropriating it for public purposes as a part of the Lakeland Freeway, is without foundation. If the city needs the property in that development, then an immediate proceeding in eminent domain would end this lawsuit. All that has been done so far toward building the Lakeland Freeway is tentative in character. The proceeding-looking to the construction of the freeway has not reached a stage compelling the city to appropriate the property, nor is the plaintiff compelled to stand by, paying taxes without benefit, until the development reaches a stage, if it ever does, where her property must be taken for freeway purposes. Section 713.14, Revised Code.

We are, therefore, confronted with just one question — under all the circumstances and facts of this case, is the zoning ordinance of the city of Euclid, as it applies to plaintiff’s property, a constitutional exercise of the police power of the city of Euclid.

As a community grows, population shifts, neighborhoods change and the considerations which once were conclusive as to the right to restrict property to a particular use under a zoning plan, may, by the passing of time, be totally destructive of the owner’s rights in the property. This rule was recognized in the case of Village of Euclid v. Ambler Realty Co., 272 U. S., 365, 71 L. Ed., 303, 47 S. Ct, 114, 54 A. L. R., 1016, where the Supreme Court of the United States said:

“It is true that when, if ever, the provisions set forth in the ordinance in tedious and minute detail, come to be concretely applied to particular premises, including those of the appellee, or to particular conditions, or to be considered in connection with specific complaints, some of them, or even many of them, may be found to be clearly arbitrary and unreasonable. ’ ’

We, therefore, turn to the record to study the conditions surrounding plaintiff’s property. This property is now zoned, without any other property being included, as a U-4 district. The surrounding properties are in a different zone classification. The uses under this classification (U-4) include many kinds of retail business-; garages for storage and sale of motor vehicles and repairs, except on bodies and frames; job printing, newspapers, moving pictures theatres, dance halls and the like; The property to the north, on the east side of Babbitt Road, is now in the U-2 district, providing for two-family houses. Most of the houses that have been recently built in that zone are small single-family residences, beginning about 300 feet or more north of plaintiff’s property. The first property just north of plaintiff’s property is now occupied by a church. The trustees of the church signed the petition consenting to the rezoning of plaintiff ’s property, circularized by the Sun Oil Company, which petition was filed with the city council on December 15, 1950. North of the church is an old private single residence in the rear of which a public garage business is conducted and maintained. On the west side of Babbitt Road is a large elementary school with a frontage on Babbitt Road of about 1,000 feet running north from Lakeland Boulevard. The Board of Education also signed the petition circulated by the Sun Oil Company, thereby consenting to the rezoning of plaintiff’s lot for use as a gasoline filling and service station. To the east of plaintiff’s lot, on the north side of Lake-land Boulevard, the property for three short blocks to Johnson Avenue, for a depth of 150 feet, is zoned in the U-5 district, which classification includes garages for general repair of motor vehicles, including painting; wholesale hardware; warehouses for storage in bulk in the open of building materials, contractor’s equipment, lumber, ice, wood, coal, or household foods; canning, packing or bottling of products; lumber processing; meats, fowl, fruits or vegetable curing; metal processing; tin shops, plumbing supply shops; freight stations; wholesale produce markets; wholesale produce sales rooms; laundry, carpet cleaning, dry-cleaning, dyeing, and many other uses. This is the classification in which filling stations were placed before the amendment.

There are now four or five very old residences on this side of Lakeland Boulevard between Babbitt Road and Johnson Road, a garage business being operated behind the one nearest plaintiff’s property, and one farther east. There are also one or two properties now devoted to commercial purposes within this district. At the southeast corner, directly across Lakeland Boulevard from plaintiff’s property, is a Standard Oil service station and a bulk gasoline plant, which property together with that to the east to a point opposite Johnson Road is zoned as a U-5 district, the uses in such district being as above described. The southwest corner of Lakeland Boulevard and Babbitt Road is now occupied by a Texaco gasoline service and filling station, the property from the corner west extending back to the New York Central Railroad tracks for about 200 feet, being a U-5 district. To the rear of the Standard Oil and Texaco service stations (measured along Babbitt Road about 200 feet to the south of Lakeland Boulevard) is the New York Central Railroad main tracks and with the exception of the two U-5 districts above described, all the property for a considerable distance east and west of Babbitt Road from Lakeland Boulevard south is a great expanse of acreage going south beyond the Nickle Plate Railroad, and it is all zoned for industrial use (U-6), where now is located the Taylor and Boggis Foundry, the Chase Brass & Copper, Inc., Addressograph-Multigraph Company, and many other large industrial institutions employing thousands of people. That is to say, that within 250 feet of plaintiff’s property is one of the great industrial and manufacturing centers of Greater Cleveland with two' of the four corners of the intersection now being used for gasoline station purposes and one of such stations being operated in connection with a bulk plant with an overhead storage tank having a capacity of 75,000 gallons of gasoline.

The defendant stresses the traffic problem as a contributing factor in considering plaintiff’s application to rezone the plaintiff’s property to U-4A use. Undoubtedly, motor vehicle traffic is very heavy at this intersection, particularly during the hours when work shifts are changing in the industrial plants. The total traffic count showed approximately 15,000 vehicles passing the intersection from 7 a. m. to 11 p. m. daily, but it is also important to note that the tally sheets show there is practically no pedestrian traffic. This points strongly to the conclusion that no retail business could be successfully operated without off-street parking, except one of the character of a filling station. It is significant that with the exception of four or five very old residences, probably built before the zoning ordinance was passed, there has been no building on Lakeland Boulevard in this neighborhood, while to the north in the TJ-2 district above described, out of the noise and inconvenience of traffic congestion and industrial activities, more than 900 single houses have been constructed, which are now occupied.

We find no support in the record that a gasoline station will become a safety hazard in the neighborhood. If two gasoline stations are all right on the south side of the street, it might even be better to have one on the north side to prevent the necessity of westbound traffic crossing over in the face of eastbound traffic for filling station services.

Upon a consideration of every factor advanced by all the parties, the consents freely given by all the surrounding property owners, except the competitors across the street, which is understandable, the fact that no one spoke a word in opposition to the change at the public hearings before council, except the mayor and law director, basing the negative of the issue for the most part on the- cost to the city if at a subsequent time the property might be needed for freeway development, the fact that there are already two gasoline service and filling stations at the intersection, the fact that only one piece of property is or could be involved in this classification district, and the fact that the character of the surrounding property uses makes any other use highly improbable and practically impossible, leads to but one conclusion, and that is that to deny plaintiff’s application for change of zoning classification from U-4 to U-4A, constituted an abuse of discretion and if persisted in would result in making the zoning ordinance as to plaintiff’s property unreasonable and confiscatory and, therefore, unconstitutional.

A decree will, therefore, be entered for plaintiff as prayed for.

Judgment accordingly.

Hurd, P. J., and Kovachy, J., concur.


author: Matthews, P. J.

text:
    Oxford Sporting Goods Mfg. Co., Appellee, v. Gillman, d. b. a. United Knitwear, Appellant.
    (No. 7810
    Decided December 7, 1953.)

      Mr. Aubrey M. Foiles, for appellee.

      Messrs. Weiland, Solinger & D’Angelo, for appellant.
   Matthews, P. J.

This is an action on three contracts whereby plaintiff agreed to manufacture and deliver at specified dates certain wearing apparel, to wit, jackets or sweaters, for which the defendant agreed to pay $42 per dozen. The total number manufactured, shipped, and accepted, as shown by the petition, was 72 dozen. An unspecified number were refused by the defendant. By his amended answer and cross-petition, the defendant alleges that the plaintiff had violated its contract to deliver specified quantities in each of the months of January, February, and March, 1948. The amended answer and cross-petition contains no express denial, either general or specific, of the allegations of the plaintiff’s petition, the pleader apparently relying on inconsistent affirmative allegations to make the issues of fact.

The defendant alleges in his answer and cross-petition that, notwithstanding deliveries were more than two months late, he accepted shipments up to April 6, 1948, when he notified the plaintiff that, owing to the delay in deliveries in spite of repeated demands, he would refuse to accept any shipments after April 10, 1948.

The defendant alleges also that he accepted 111 dozen notwithstanding the delay in deliveries and was able to and did sell 74 dozen to his customers, that he accepted these sweaters and sold them in order to minimize the damage resulting from the delay in making deliveries, that he was unable to sell 37 dozen because of the expiration of the season in which there was x demand for such articles, and that he returned the 30 dozen to the plaintiff.

In his cross-petition, the defendant as to his first cause of action asks damages based on loss of profits resulting from his failure to sell the 67 dozen caused by the delay in making the deliveries. It should be said here that neither the allegations nor the proof was sufficient to bring such loss of profit within the contemplation of the parties at the time these contracts were made as the natural result of delay in delivery. Such profits are generally too remote and are not recoverable. 15 American Jurisprudence, 568, Section 154.

As to defendant’s second and third causes of action, he seeks to recover for depreciation in the market value on the unsold sweaters caused by a change of style during the delay. The same objection to accepting this as a measure of damage exists as to loss of profits as a measure. There is no allegation that the plaintiff knew of the imminence of this change of style at the agreed-upon date of delivery. For aught that the record discloses the defendant could have gone into the market at that time and purchased similar sweaters at the same price, or even at a lower price. If the dates of actual deliveries, rather than the contract dates, should be used, then if there is any proof at all applicable it is that the depreciation had already occurred and the defendant accepted delivery knowing of such depreciation and without being obliged to do so. Under such circumstances, it would certainly not be within the contemplation of the parties that the plaintiff would reimburse the defendant for a loss which he voluntarily assumed.

The trial court, without a jury, found against the defendant on the issues raised by the defendant’s cross-petition, found in favor of the plaintiff for the contract price of all sweaters that had not been returned by defendant, and rendered judgment against the defendant for the contract price thereof. That is the judgment from which this appeal was taken.

There is one other contention which we should consider. In cross-examining the president of the plaintiff, it was disclosed that the invoices sent to the defendant and which had been introduced in evidence bore the legend, “Payable to Coleman & Company, factors, to whom this account has been transferred and assigned,” and the witness testified that the invoices had been assigned to Coleman & Company. He did not testify that Coleman & Company owned the chose at the time this action was instituted. On redirect examination, he was asked this question about the assignment of the invoices, “Were they or were they not reassigned and charged back to your account?” His answer was, “Yes, Sir.” Following this, there was an objection, and a colloquy took place between court and counsel as to whether oral testimony violated the so-called “best evidence rule” (although there was no evidence or suggestion that any written reassignment had been made), and this was finally followed by a tender that “the account was reassigned to the plaintiff.” Whereupon the court sustained the objection, but did not order the witness’s answer stricken from the record, and rendered judgment for the plaintiff, as hereinbefore mentioned, thereby holding that the title to the cause of action was in the plaintiff.

By failing to place in issue the plaintiff’s right to sue, by either a general or special denial, the defendant admitted the plaintiff’s ownership of the chose in action based on the transaction betwéen them alleged in the petition. It was not an issue and plaintiff was not required to offer any evidence in proof thereof. The contracts having been made with the plaintiff, it thereupon became the owner of the chose, and its continued ownership was presumed.

In 20 American Jurisprudence, 233, Section 237, it is stated that, “in the absence of proof to the contrary, ownership of personal property is presumed to continue unless a transfer by word or act is shown.” See, also, 17 Ohio Jurisprudence, 94, Section 75.

Furthermore, the fact that the chose had been assigned at an unidentified time did not necessarily disprove plaintiff’s implied allegation and defendant’s implied admission, by failure to deny it, that the plaintiff owned the chose at the time of instituting the action.

By rendering judgment for the plaintiff, the court found that it was the owner of the cause of action upon which the judgment was based. This court would not be justified in disturbing its conclusion.

We find no prejudicial error in the record.

For these reasons, me judgment is affirmed.

Judgment affirmed.

Boss and Hildebrant, JJ., concur.


author: Ross, J.

text:
    Lamb, Appellee, v. Bearman et al., Appellees; Dutro, d. b. a. Dtttro Realty Co., Appellant.

      (No. 7748
    Decided October 26, 1953.)

      Mr, Charles H. Tobias, Jr., and Messrs. Steer, Strauss & Adair, for plaintiff-appellee.

      Mr. Ewing O. Cossaboom and Messrs. Dickerson, Hermerding é Ahrens, for appellant.

      Mr. Frank J. Long ano, for defendants-appellees.
   Ross, J.

The parties herein involved are (1) Henry W. Lamb, plaintiff-appellee, a contractual purchaser of certain real estate, (2) Gilbert R. Dutro, defendant-appellant, a real estate broker, who was instrumental in securing a contract of sale between his principal, the seller, and the plaintiff-appellee, the purchaser, (3) Albert and Eleanor Bearman, defendants-appellees, the sellers, and (4) the American State Insurance Company, defendant-appellee and bonding company for the agent Dutro, which company was dismissed from the action, and which is not involved in the appeal here considered.

From the various pleadings filed and the evidence it appears that the purchaser sued to recover a down payment given to the agent. This money was held by the broker in a fiduciary capacity, and upon direction of the sellers should have been returned by the broker to the purchaser upon his demand therefor. Phillip Metropolitan M. E. Church v. Wahn-Evans Co., 153 Ohio St., 335, 91 N. E. (2d), 686, 17 A. L. R. (2d), 1007. The judgment of the trial court was in accordance with such law, and the judgment in that respect is affirmed.

The broker, by a cross-petition, sought to recover his commission covered by a written contract with the sellers, claiming that he had performed such contract in securing a contractual purchaser for the real estate involved. The trial court rendered judgment in favor of the sellers and against the broker on this claim. The broker filed a motion for an instructed verdict at the close of the evidence and for judgment notwithstanding the verdict against him.

A motion for a new trial'was filed by the broker, which was overruled, and from which the appeal on questions of law here considered was taken.

The broker has appealed also from the judgment against him. That judgment, in effect, journalized the adverse action of the court on the broker’s motion for an instructed verdict. There is no appeal by the broker from the adverse action of the court on the motion for judgment non obstante veredicto.

By the appeal from the judgment and motion for new trial, these questions are presented to this court: (1) Was the broker entitled to judgment as a matter of law on the petition of the plaintiff? The answer to this question is “no,” for the reasons heretofore given. (2) Is the'broker entitled to a new trial upon the petition of the plaintiff? The answer to this question is also in the negative, for the reasons heretofore given. (3) Was the broker entitled to judgment as a matter of law on his cross-petition against the sellers? And (4) was the broker entitled to a new trial on his motion therefor against the sellers?

An examination of the record leaves no doubt that there is no substantial evidence upon which reasonable minds could disagree, showing that the broker is not entitled to his commission under his contract with the seller. He produced a buyer who contracted to purchase the real estate, and the seller, by signing the contract of sale, accepted the buyer as financially responsible to carry out his contract. This gave the broker a right to his commission, the amount of which is not in dispute. Carey, Admr., v. Conn, 107 Ohio St., 113, 140 N. E., 643. No valid defense against this right was sustained by any substantial evidence.

Reasonable minds could not disagree upon the inferences to be drawn from the evidence or lack thereof.

The broker was entitled to an instructed verdict in his favor, and the adverse action of the court constituting a final order (Hurt v. Charles J. Rogers Transportation Co., 160 Ohio St., 70, 113 N. E. [2d], 489) having been journalized in the final judgment, from which an appeal was taken by the broker, gives this court the right, on appeal, to render the judgment which the trial court should have rendered in favor of the broker on his motion for an instructed verdict. * The fact that the movanu has also filed a motion for new trial does not deprive such movant of the right to have the Court of Appeals grant him final judgment on his appeal from action of the trial court on his motion for an instructed verdict if he is entitled thereto. Michigan-Ohio-Indiana Coal Assn. v. Nigh, Admx., 131 Ohio St., 405, 3 N. E. (2d), 355; Hurt v. Charles J. Rogers Transportation Co., supra, at page 74.

The third question raised by the motion of the broker for new trial requires no consideration. Hurt v. Charles J. Rogers Transportation Co., supra, at page 76. If such consideration were required by the appeal duly filed herein, a new trial would be ordered by the court on the broker’s cross-petition against the sellers.

Such being the case, the judgment of the trial court is affirmed as to the appeal upon the petition of the plaintiff, and final judgment rendered in favor of the broker against the sellers upon his cross-petition against them.

Judgment accordingly.

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