author: Conn, J.

text:
    McGuire, Appellee, v. Corn, Appellant.
    (No. 4618
    Decided March 3, 1952.)

      Mr. Isadore Kohler and Mr. Joseph G. Gluck, for appellee.

      Messrs. Shumaker, Loop é Kendrick and Mr. Robert B. Gosline, for appellant.
   Conn, J.

The defendant having passed away during the pendency of this action, on motion, the action was revived in the name of the executor. The parties herein will be designated plaintiff and defendant, as they were when the action was instituted.

In the trial court, judgment was entered for plaintiff on the verdict of the jury. Defendant appeals to this court on questions of law.

Plaintiff was a tenant of defendant at the time of the occurrences set forth in the petition. Plaintiff alleges that on April 14, 1948, and for some time prior thereto, she and her husband resided in an apartment owned by defendant; that on such date defendant and his employees attempted to invade the plaintiff’s apartment by force and remove certain furniture therefrom, against the wishes of plaintiff; that plaintiff refused to admit defendant; that defendant then and there, with great force and violence, pushed against the door of the apartment “causing the same to swing inwardly and against said plaintiff’s abdomen and wedging said plaintiff between the said door and the wall of said apartment and thereby causing said plaintiff to sustain an'umbilical hernia and a left inguinal hernia’’: and that plaintiff was obliged to incur hospital and medical expense, loss of earnings, pain and suffering, for which she prays judgment.

Defendant in his answer admitted that plaintiff and her husband were tenants of defendant and denied by special and general denials the remaining allegations in the petition.

At the conclusion of plaintiff’s case, defendant moved for a directed verdict on the ground that plaintiff had failed to prove the cause of action alleged in her petition. Before the court ruled on this motion, defendant moved for an order requiring plaintiff to elect whether to proceed as upon assault and battery or negligence, to which plaintiff objected. Thereupon, over the objection of defendant, plaintiff obtained leave to amend the second paragraph of her petition to conform with the proof. Defendant’s motion requiring plaintiff to elect was then granted and plaintiff elected to base her cause of action on negligence. The motion of defendant for a directed verdict was renewed and overruled.

Defendant assigns the following errors:

1. Error in overruling defendant’s motion for a directed verdict which was renewed at the close of all the evidence, and also renewed “after plaintiff was permitted to change the nature of her action” and at the conclusion of all the evidence.

2. Error in overruling defendant’s motion for a new trial for the reason that the court erred in admitting certain evidence offered by plaintiff and in excluding evidence offered by defendant.

We will consider first the overruling of defendant’s motion for a directed verdict. The record discloses that during the argument on the motion of defendant the question was raised whether on plaintiff’s evidence she should be required to elect as between an action based on assault and battery and one predicated on negligence. As heretofore pointed out, the court, over the objection of plaintiff, granted the motion to elect and thereupon plaintiff asked leave to amend her petition, which was granted, following which plaintiff elected to proceed on the ground of negligence. It is conceded that the amendment did not effect any material change in the facts and circumstances relating to plaintiff’s alleged injury as originally set forth in her petition.

Defendant contends that his motion for a directed verdict should have been granted “because of plaintiff’s failure to prove a cause of action for assault and battery” and, further, “because there is no proximate causal relation- between the claimed negligence of the defendant’s decedent” and the alleged injury and damage.

Plaintiff’s evidence disclosed that the defendant came to the top of the stairs and knocked on the entrance door to plaintiff’s apartment, which operated inwardly; that plaintiff at the time was in the kitchen in the back part of the apartment; that the brother of plaintiff at the time was in the living room; and that plaintiff’s brother reached the door first and started to open it before Ms sister had time to do so. Thereupon, defendant “shoved and lácked the door” open with force, the edge of the door and door knob striking plaintiff in the stomach and knocking her back against the bedroom door jamb, where she fell or started to fall to the floor.

It appears also from plaintiff’s evidence that on the morning of the day the alleged wrongful acts of defendant took place, defendant informed plaintiff’s brother that he objected to his being in the apartment; that he had rented the apartment to two people and “that’s all I want up there.” It appears also that defendant insisted on taking a couch out of the apartment and bringing in a chair, which had been brought to the top of the stairs at the time defendant knocked on the door.

Defendant contends that assault and battery on the one hand and negligence on the other are distinct and separate causes of action and that one may not plead one cause of action and recover on another, and, further, that at the time plaintiff elected to ground her action on negligence, the statutory limitation of two years had run. (Section 11224-1, General Code.)

Plaintiff having been required to elect on the granting of defendant’s motion, and she having elected to base her right of recovery on negligence, it no longer was material whether plaintiff’s evidence failed to establish her case as one for assault and battery, as this form of action was no longer in the case.

Before plaintiff can recover on the ground of negligence, she must produce credible and substantial evidence, including reasonable inferences arising therefrom, that defendant owed her a duty not to invade her security by the commission of a legal wrong which sustained a proximate, causal relationship to the injury of which she complains.

The legal wrong may be characterized by acts of nonfeasance, misfeasance or malfeasance- — the last being an act which defendant had no legal right to do and which is always a wrongful act.

To avoid confusion, it is pertinent to note the distinction between form or right of action and cause of action. These terms are not interchangeable. Under the former, the petition of plaintiff must disclose “a primary legal right in the plaintiff, a primary legal duty connected with such right resting on the defendant, and a breach of such duty by the defendant. ’ ’ On the other hand, a cause of action “embraces the facts which it is necessary to establish in order to sustain a claim for judicial relief.” Tinker v. Sauer, 105 Ohio St., 135, 136 N. E., 854; State, ex rel. Hawley, v. Industrial Commission, 137 Ohio St., 332, 335, 30 N. E. (2d), 332; 41 American Jurisprudence, 345, Section 78; 1 Ohio Jurisprudence, 272, Section 2.

In view of this distinction, modern practice under the Code permits the right of action to be changed by timely amendment, provided the action proceeds on the same state of facts or on the same transaction. In other -words, it is permissible to change the form of an action ex delicto to another form of action ex delicto, provided the cause of action is not changed. By way of illustration, it is permissible to change an action in malicious prosecution to one in false imprisonment, as was held in Spice & Son v. Steinruck, 14 Ohio St., 213. See, also, City of Toledo v. Brown, 130 Ohio St., 513, 200 N. E., 750.

It follows that defendant’s claim that the amendment to plaintiff’s petition and her election to proceed on the ground of negligence changed her cause of action is not well taken.

It is urged further by defendant that if the amended petition “stated a claim for negligence” it introduced a new ground for plaintiff’s claim after the two-year statutory limitation had expired and plaintiff could not maintain her action. The rule is quite generally recognized that an amendment changing the form of action only and not setting up a new cause of action may be made after the period of limitation has expired, as in such case the amendment relates back to the time of the commencement of the action. Seaboard Air Line Ry. v. Renn, 241 U. S., 290, 60 L. Ed., 1006, 36 S. Ct., 567; Douglas, Admx., v. Daniels Bros. Coal Co., 135 Ohio St., 641, 647, 22 N. E. (2d), 195, 123 A. L. R., 761; 25 Ohio Jurisprudence, 588, Section 241; 54 Corpus Juris Secundum, 327, Section 280; 34 American Jurisprudence, 218, Section 266.

It is contended further that defendant did not know or have any notice that plaintiff was behind the door which she claimed struck her, and, being ignorant of her presence there, he owed her no duty. If no duty were owing in legal contemplation, there could be no actionable negligence. The fallacy of this contention arises by reason of the assumption that no duty was owing by defendant under the facts and circumstances which plaintiff’s evidence tended to show.

In the instant case, no claim was made that defendant had reserved a right of entry into plaintiff’s apartment. His acts of attempted intrusion without invitation, as plaintiff’s evidence tended to show, constituted a trespass and were wrongful. 39 Ohio Jurisprudence, 482, Section 35.

Competent evidence relating to plaintiff’s injury under the petition as amended, and her subsequent election, would be the same, broadly speaking, as it would have been under some other theory of liability.

Defendant’s conduct being wrongful, it is immaterial whether it was intentional or merely malfeasant, as he was chargeable at the time with the reasonable and probable consequences of Ms acts. In other words, defendant conld anticipate that his knock on the door would summon plaintiff to answer, and, as the door opened inward, he could foresee the probability of injury to her in event the door were forcibly opened.

There being credible and substantial evidence of injury resulting proximately from the wrongful act of defendant, a jury question was presented in the trial court and the motions of defendant were properly overruled.

Defendant assigns as error the refusal of the court to receive in evidence exhibit 4-d, which had been placed in the medical file of plaintiff’s physicians, Dr. Heath (who had passed away prior to the trial) and Dr. Harrison, who succeeded him. This office file was produced in court by plaintiff, identified as exhibit 4 and received in evidence. However, exhibit 4-d was not included and was not offered by plaintiff.

The secretaries of the physicians were called as witnesses and this office file was identified by these witnesses. Exhibit 4-d was also identified by one of these witnesses, who testified'that this exhibit was apparently prepared by the hospital. Dr. Harrison, on cross-examination, testified that it was prepared at the hospital. However, this exhibit was not identified by any witness from the hospital and no evidence was offered that it was prepared in the hospital’s regular course of business. An inspection of the exhibit shows it contained matter that did not relate to the medical or surgical treatment of plaintiff while in the hospital. It appears that the exclusion of exhibit 4-d was proper and pursuant to the provisions of Section 12102-23, General Code.

Certain evidence offered by plaintiff was received prior to plaintiff’s election, which tended to show a wrongful intention on the part of defendant relative to plaintiff’s occupancy of the apartment. When the form of action was changed to negligence, upon the granting of defendant’s motion requiring plaintiff to elect and before the case was submitted to the jury, the court withdrew this evidence and instructed the jury to disregard it. Defendant contends the admission of the evidence was prejudicial. It is not clear on what basis defendant can complain when the form of action was changed to negligence as a result of defendant’s own motion. Having insisted upon the election, which could be premised only on the theory that the cause of action embraced assault and battery and also negligence, defendant is in no position to complain that the case was submitted to the jury as upon negligence after compelling plaintiff to elect. We conclude the assignment of error is not well taken.

As we find no error prejudicial in the record, the judgment of the trial court is affirmed.

Judgment affirmed.

Fess and Savord, JJ., concur.


source: Caselaw Access Project

author: Savord, J.

license: Public Domain

text:
    Leary, Appellant, v. Macheski et al., Appellees.

      (No. 4568
    Decided December 3, 1951.)

      Mr. Barry Mee, for appellant.

      Mr. Leo P. Franhowshi and Mr. Robert A. Zanville, for appellees.
   Savord, J.

This is an appeal on questions of law from a judgment of the Common Pleas Court, a motion for directed verdict in favor of defendants having been sustained at the close of plaintiff’s case. For convenience, the parties will be designated as they appeared in the trial court.

Three causes of action were set forth in the amended petition of plaintiff. The first cause pleaded an account stated claimed to have arisen by reason of various loans allegedly made on several occasions by plaintiff to defendants, subject to certain credits accruing to defendants by reason of plaintiff having-lived in the home of defendants. The second cause of action alleged that on or about January 31,1948, plaintiff loaned the defendants $2,400, which was to be uséd to pay off an existing mortgage on the home of defendants, the same to be repaid at the rate of $25 per month, and that after allowing credit for certain payments made by the defendants, there remained a balance due upon such loan in the amount of $2,200, with interest from October 1, 1948. In her third cause of action the plaintiff sought to recover $520 claimed to be owed her by reason of her having sold the defendants certain furniture.

By way of answer, the defendants denied the allegations of the first and third causes of action and with respect to the second cause of action, while admitting the loan to them by plaintiff of the amount of $2,400, alleged that the same had been repaid. All allegations of the answer, other than those constituting admissions of the subject matter of the amended petition, were denied by plaintiff’s reply

The record reveals a somewhat unusual factual situation. Plaintiff and defendants had been acquainted for a considerable period of time prior to plaintiff coming to reside with the defendants in September 1947. It is undisputed that during this interval, plaintiff had loaned defendants various amounts of money, though the record is extremely indefinite as to the times of the making of such loans, the amount of the same, and as to just what repayments, if any, were made. Shortly prior to plaintiff taking up her residence with the defendants, she sold a parcel of real estate which she had inherited from her father, receiving as a down payment the sum of $500.

On September 19, 1947, as a result of a visit made by plaintiff and defendant Edna Macheski to the Lucas county bank, a safety deposit box was rented. In all likelihood, because plaintiff’s eyesight was seriously impaired, arrangements were perfected whereby each of the parties was to have access to the box. On the same day, plaintiff withdrew $995.20 from her savings account with The Toledo Trust Company. A few days later she received a check in the amount of $5,467.72, representing the balance of the sales price of the real estate previously sold by her. The undisputed testimony establishes that the money represented by the foregoing items and the $500 down payment theretofore received by plaintiff were placed in the box, making a total of $6,962.92 deposited in the box.

Thereafter, according to the records of .the bank, defendant Edna Maeheski had access to the box on 13 different occasions between October 10,1947, and June 25, 1948; defendant Stanley Maeheski had access on May 22,1948, and plaintiff had access on June 16,1948, June 28, 1948, and June 29, 1948.

Save with respect to several occasions, the record is not clear as to the exact purpose of defendant Edna Maeheski availing herself of access to the box, although she testified “I went several times, put papers in and took papers out, put money in and took money out,” and that upon occasions the plaintiff wanted money and at such times “she [the plaintiff] asked me to get it; sometimes she was with me, sometimes she wasn’t.”

Defendant Edna Maeheski offers definite explanation of the circumstances surrounding three of her visits to the box. One of these occasions was when, with the consent of plaintiff, Mrs. Maeheski removed $900 from the box to be employed in the purchase of an automobile by the defendants, which amount it is admitted was later replaced in the box. Another was when, at the request of the plaintiff, $3,000 was withdrawn to enable the former to purchase certain telephone company stock. A third was the occasion when again, with the consent of plaintiff, $2,400 was withdrawn to pay the mortgage on the home of defendants, an amount which, according to the testimony of defendants, was later restored to the box from the proceeds of a new loan negotiated by the defendants.

In June 1948, partly because of certain remodeling work then in course at the Maeheski residence, the plaintiff was living with a friend. On June 16, 1948, accompanied by the latter and three other women, plaintiff made an examination of the deposit box. She testified that upon that date $400 was missing from the box, the amount found therein being $962. The plaintiff testified further that on June 28, 1948, again accompanied by a friend, she returned to the bank and examination of the box showed that it contained $1,362, the $400 having apparently been returned. On that or the following day, the plaintiff removed the $1,362 from the box, retained $62 for personal purposes and deposited $1,300 in a savings account in the Lucas county bank.

It is the contention of the plaintiff that when the amount originally placed in the box is considered, allowance made for the $3,000 withdrawal made for the purpose of purchasing the telephone company stock, and recognition accorded the fact that but $1,362 was found in the box on the occasion of its examination on June 28, 1948, a reasonable inference at least arises that the $2,400 withdrawn from the box by defendant Edna Machesld in June of 1948 was not replaced in the box, that as a consequence such money has not been repaid to plaintiff, and that the trial court should have submitted the issue thus tendered by the plaintiff’s second cause of action to the jury for its consideration and determination.

A mere statement of the general rule clearly indicates the duty resting upon the trial court with respect-to the motion for a directed verdict in favor of defendants, so far as the second cause of action was concerned.

That rule, along -with ample sustaining authority cited, is stated in 39 Ohio Jurisprudence, 792, Section 179, as follows:

“In either case if, by admitting, for the purposes of the motion, all the facts which the evidence, given a reasonable construction in favor of the plaintiff, tends to support or prove, it appears that each fact indispensable to the right of action and put in issue by the pleadings has been supported by evidence with respect to which ordinary, candid and intelligent men may arrive at different conclusions, or, if undisputed, is such th,at reasonable minds might draw different inferences or reach different conclusions — if, in other words, under all the facts and circumstances in evidence, there is room for sensible men to differ in their conclusions —the motion must be denied and the ease submitted to the jury under proper instructions from the court.”

We recognize that the evidence should be sufficiently substantial to justify a logical mind in drawing therefrom a logical deduction. We just as quickly recognize that a party is not required to support each element of his case by direct proof but rather may rely upon such rational inferences as may be drawn in support of the elements required to be proven.

According to the evidence in this case, construed most favorably to the plaintiff and considering especially the unlimited access to the deposit box enjoyed by the parties together with the difference in the amount of money originally placed therein and the amount found at the time of final examination, we are satisfied that reasonable minds might well have reached different conclusions as to whether or not the $2,400 withdrawal had been replaced, and that plaintiff was entitled to have the issue tendered by her second cause of action submitted to the jury under proper instructions.

The record presented a definite issue with respect to the furniture transaction, the subject matter of plaintiff’s third cause of action; an issue which should have been submitted to the jury for determination. Plaintiff testified that with regard to the furniture: ‘ ‘ They [the defendants] told me that they would give me a whole year’s room and board for the furniture.” While this testimony was denied by defendant Edna Macheski, surely the conflict was one to be resolved by the jury.

No evidence of a substantive nature tending to support an account stated as alleged in her first cause of action was offered by the plaintiff, and it follows that the trial court was correct in sustaining the motion for directed verdict as to such first cause of action.

Because of error in sustaining the motion of defendants for a directed verdict as to the second and third causes of action set forth in plaintiff’s amended petition, the judgment of the court in favor of defendants with respect to such two causes of action must be reversed and this cause remanded for further proceedings.

Judgment accordingly.

Fess and Conn, JJ., concur.


author: Doyle, J.

text:
    Karr, a Minor, Appellee, v. McNeil, a Minor, Appellant.

      (No. 4285
    Decided July 23, 1952.)

      Mr. Raymond J. McGowan, for appellee..

      Mr. James Olds, for appellant.
   Doyle, J.

This is an action in tort to recover compensation for personal injuries sustained at about 8:45 o’clock in the morning of February 6, 1950, by plaintiff, then ten years of age, on a public street in Akron, by reason of collision with an automobile driven by the defendant, also a minor, of the age of nineteen years.

At the conclusion of the trial, a jury’s verdict was returned in favor of the injured child in the amount of $3,000. The judgment entered upon this verdict forms the basis for appeal on questions of law to this court.

The evidence shows that, at the time of the accident, which occurred on the south crosswalk at a street intersection, there was hanging a standard automatic traffic signal in the center of the said intersection; the defendant, while on her way to classes at the University of Akron, where she was a student, drove her ear south on the south-north highway (Portage Path), and, as she approached the intersection with the east-west highway (W. Market St.), the light showed green for the south-bound traffic. A moment or two prior to her arrival at the boundary of the intersection, the light changed to yellow, and she (as stated in her own testimony), being unable to stop before entering the crossing of the streets, continued on through.

At about this time the plaintiff, who was on her way to the Portage Path grade school, was signalled by a traffic officer to leave her position on the southwest corner of the intersection, and to proceed with the green traffic light across the street on the south crosswalk. In obedience to the instructions of the officer, the child stepped from the sidewalk, and, while walking on the crosswalk a few feet from the curb, was struck. She was carried a short distance on the bumper of the car, and then fell to the pavement. Upon later examination in a hospital, she was found to have suffered a fracture of the fibula, a crack of the tibia, and other injuries of a less serious nature.

Attention will be first directed to the claim that the court erred in instructing the jury that the defendant was guilty of negligence as a matter of law, and to answering the following questions raised by the defendant, the appellant herein:

í í g & # #

“(a) Is the operator of a motor vehicle guilty of negligence as a matter of law, in entering an intersection upon the amber or caution light, when circumstances are such that it is impossible for such operator to stop before entering the intersection?

“(b) Can a minor who is operating a motor vehicle be charged with negligence as a matter of law, for failure to comply with the traffic signal ordinances and statutes?”

Section 6307-13 (b), General Code (Motor Vehicles), read, at the time of this accident:

“Yellow alone or ‘caution’ when shown following the green or ‘go’ signal.

“All traffic facing the signal shall stop provided that any traffic within the intersection shall be permitted to continue cautiously through the intersection.”

An ordinance of the city of Akron was in identical terms.

(The statute has since been amended.)

It has been a law of long standing that the specific requirement of a law or ordinance enacted in the interest of public safety prescribes the standard of care required. Failure to comply therewith is negligence. Claypool v. Mohawk Motor, Inc., 155 Ohio St., 8, 97 N. E. (2d), 32; Schell v. DuBois, Admr., 94 Ohio St., 93, 113 N. E., 664, L. R. A. 1917A, 710; Variety Iron & Steel Works Co. v. Poak, 89 Ohio St., 297, 106 N. E., 24.

Where a violation of a specific requirement created by statute or ordinance is shown to exist, the rule of ordinary care is of no consequence. The violator is guilty of negligence “irrespective of the question as to whether his act is such as is deemed to meet and satisfy the test of ordinary or reasonable care which would be applied in the absence of such * * * imposition of absolute duty * * *.” Swoboda v. Brown, 129 Ohio St., 512, at page 522, 196 N. E., 274.

There is propounded the question by the appellant: “Does Section 6307-13, paragraph (b), require moving traffic approaching the signal to stop before entering the intersection when a yellow or caution light appears, even though that traffic may be so close to the intersection, though traveling at a lawful rate of speed, that it is physically impossible to bring the vehicle to a stop?”

Our answer is that the statute made no exception. It forbade, under the penalty of the law, the entering of an intersection against the warning of a yellow light which has succeeded a green light. It necessarily follows therefrom that a person, on peril of legal negligence, must so drive his automobile that he can stop before entering the barred zone.

We are not called upon and therefore do not say whether a motorist may have the benefit of a legal excuse who, without fault and because of circumstances over which he had no control, was unable to comply with the law. The facts before us do not raise such question. Hangen, a Minor, v. Hadfield, 135 Ohio St., 281, 20 N. E. (2d), 715.

It is the conclusion of this court that, from the defendant’s own admissions in her testimony and the evidence of other witnesses, the defendant beyond peradventure entered the intersection ‘ ‘ against the light, ’ ’ and, in doing so, violated the statute.

We next meet the question whether a 19-year-old college student can be guilty of primary negligence (as distinguished from contributory negligence) as a matter of law for failure to comply with a specific statutory traffic requirement.

In cases involving the claim of contributory negligence of a minor, special consideration is generally given to the child’s age, intelligence and capacity, at least until it has reached the later years of its infancy and may be judged by an adult standard of conduct. It is generally recognized in the case law that when initial capacity for some negligence is established (a child beyond babyhood or early infancy), the standard of care for the child is not to be judged by that of the reasonably prudent man, but by that care which children of the same age, education and experience, of ordinary care and prudence, are accustomed to exercise under similar circumstances. Cleveland, Cincinnati, Chicago & St. Louis Ry. Co. v. Grambo, Sr., Admr., 103 Ohio St., 471, 134 N. E., 648, 20 A. L. R., 1214; Michalsky, a Minor, v. Gaertner, 53 Ohio App., 341, 5 N. E. (2d), 181. See, however, on the question of assumption of risk by a minor, Englehardt, a Minor, v. Philipps, 136 Ohio St., 73, 23 N. E. (2d), 829.

It is interesting to note that most of the cases in tort treating the claims of common-law negligence or statutory violations by infants are cases in which the claim of contributory negligence of the infant is asserted.

‘ * * 'j'jxg mental capacity, the knowledge and experience of the particular child, are * * * taken into consideration # * *. These qualities are individualized —subjective'—but only for the purpose of determining whether or not the child was capable of perceiving the risk of injury to himself and of avoiding the danger. Beyond that, there is an objective standard. In determining whether or not his conduct was proper in view of his intelligence, knowledge and experience, his conduct is to be compared with that of the careful and prudent child of similar qualities. Just as in the case of adults, one of the qualities of the standard ‘reasonable man’ is consistent carefulness or prudence, so in the case of infants, the element of prudence is standardized. ’ ’ The Standard of Care Required of Children, 37 Yale Law Journal, 618, 625.

Our search in the various digests reveals no case involving the primary negligence of an infant growing out of the violation of a specific requirement in a traffic statute (as distinguished from common-law negligence), where a court has made any distinction based upon the minority of the defendant. Nor did the author of the annotation in 174 A. L. R., 1170, 1199, find any cases of this character.

It is not the purpose of this court to present the various theories of text writers in this field of the law, nor to marshal support for a rule applicable to primary negligence by analogy from the various rules pertaining to contributory negligence. In this connection, however, we refer to an exhaustive opinion by the Supreme Court of New Hampshire: Char bonneau, Admr., v. MacRury, 84 N. H., 501, 153 A., 457, 73 A. L. R., 1266. It will be noted, however, that in that case the claimed negligence proximately causing the injury did not ensue from the violation of a statute which created specific requirements for the operation of motor vehicles.

We further refer the lawyer and the student to the many authorities on this general subject, involving both primary negligence and contributory negligence; to the annotation entitled “Child’s violation of statute or ordinance as affecting question of his negligence or contributory negligence” in 174 A. L. R., 1170, et seq.; and to the following language of the opinion in D’Ambrosio, a Minor, v. City of Philadelphia (1946), 354 Pa., 403, 47 A. (2d), 256, 174 A. L. R., 1166, 1168: “In the absence of the statute, the minor plaintiff’s contributory negligence would have been for the jury. But the legislature established a standard of conduct for all persons which neither court nor jury may set aside in a case within its terms.” (The injured boy was 12 years old.) See, to the contrary, Michalsky, a Minor, v. Gaertner, supra (9-year-old boy).

Based upon a study of the conflicting thought on the subject before us, we pronounce the rule for primary negligence-to be applied in the instant case as follows: A college student, 19 years of age, has the same obligations as a noninfant in the observance of specific statutory regulations in the operation of a motor vehicle on the public highways, and a violation thereof by such minor constitutes negligence as a matter of law; and if such negligence proximately causes injury to another, she may be properly held to respond in damages for the tort.

We find no error in the court’s charge on the issue of negligence. Nor do we find error of a prejudicial character in the claim of “misconduct of counsel in voir dire examination and argument.” Dowd-Feder, Inc., v. Truesdell, 130 Ohio St., 530, 200 N. E., 762 (voir dire examination); Petro v. Donner, 137 Ohio St., 168, 28 N. E. (2d), 503. The challenged argument of counsel was in answer to and upon the invitation of opposing counsel. Nor do we find that the verdict is excessive in amount, as claimed.

Finding no error of a prejudicial nature, the judgment must be affirmed. It is so ordered.

Judgment affirmed.

Hunsicker, P. J., and Stevens, J., concur.


author: Thompson, J.

text:
    Martin et al., Appellants, v. The Mansfield Savings & Trust National Bank et al., Appellees.
    (No. 22508
    Decided July 7, 1952.)

      Mr. Sheldon Zoslov and Mr. H. H. Braun, for appellants.

      Messrs. Guarnieri é Secrest, for appellees.
   Thompson, J.

This is an appeal to this court on questions of law from a judgment of the Common Pleas Court of Cuyahoga County, dismissing the petition of plaintiffs in a will contest action as a result of a motion filed by certain of the defendants made parties by the petition. The ground stated in the motion was that more than six months had elapsed since the last will and testament was admitted to probate and that no one during that time had been made a party to the action in a fiduciary capacity as executor or administrator, and no precipe had been filed for service of summons on and no summons issued for, or served on, anyone in a fiduciary capacity. The Common Pleas Court, after hearing, granted the motion of defendants and dismissed the petition at plaintiffs’ costs, for which judgment was rendered. Plaintiffs are appellants in this court.

The cause has been submitted to us on the transcript of the record and briefs. The sole question is whether the trial court properly dismissed the petition.

The record discloses that a petition to contest the will of one Roeliff B. Martin was filed in the Common Pleas Court on November 16, 1951. Plaintiffs, four in number, alleged that Martin died on or about March 26, 1951, and that plaintiffs were his only heirs. Plaintiffs alleged further that on April 8, 1951, a certain paper writing purporting to be the last will and testament of Martin was admitted to probate by the Probate Court of Cuyahoga County, and that letters testamentary “were issued to the defendant, The Mansfield Savings Trust National Bank, as sole executor thereof, which thereupon qualified and is now acting as such executor.” Plaintiffs alleged further that by the terms of such paper writing the defendants Schweitzer, Lingle and Boats were named as sole legatees and devisees of Martin and that the paper writing was not the last will and testament of the deceased.

The caption of the petition named The Mansfield Savings Trust National Bank as a defendant, together with the three other defendants referred to as legatees, but the bank was not described as a corporation or as executor or trustee, being described merely as “The Mansfield Savings Trust National Bank.” Summons was issued for the four defendants, the bank being described in the summons as “The Mansfield Savings Trust National Bank,” and the sheriff’s return stated that, on November 20, the “writ was served on the within named Mansfield Savings Trust National Bank by personally handing to Henry G-. Brunner, president of said bank, a true and certified copy of this writ with all the endorsements thereon.”

On January 22, 1952, a motion to dismiss the petition was filed by two of the defendants named as legatees in the will, on the score that more than six months had elapsed since the last will and testament of Martin was admitted to probate and no one during that period had been made a party in a fiduciary capacity as executor or administrator and no precipe had been filed for service of summons on and no summons issued for or served on anyone in such fiduciary capacity. The trial court after hearing granted the motion to dismiss and on February 27, 1952, the petition was dismissed at plaintiffs’ costs.

This court finds that the action by the trial court was properly taken in view of Sections 12080 and 12087, General Code, and upon authority of Bynner v. Jones, 154 Ohio St., 184, 93 N. E. (2d), 687, interpreting those sections.

Numerous courts in Ohio have had for decision similar situations and we believe the case of Bynner v. Jones, supra, now settles the question in Ohio. That case was certified to the Supreme Court of Ohio by the Court of Appeals for Franklin county on the ground of conflict with a judgment of the Court of Appeals for Pickaway county in the case of Bockert v. Bockert, 82 Ohio App., 274, 81 N. E. (2d), 549, and with the judgment of the Court of Appeals for Lucas county in the case of Morisse v. Billau, 70 Ohio App., 215, 45 N. E. (2d), 798.

Section 12080, General Code, provides as follows:

“[Necessary parties.] All the devisees, legatees, and heirs of the testator, and other interested persons, including the executor or administrator, mu§t be made parties to the action.”

It will be noted that under Section 12087, General Code, an action to contest a will shall be brought within six months after the will has been admitted to probate.

In the case of Bynner v. Jones, supra, no one was made a party in the fiduciary capacity of executor and no precipe was filed or summons issued on anyone in that capacity within the statutory period. The defendant Howard M. Jones was named in the caption of the petition and was served in his individual capacity as devisee and legatee only. The body of the petition, however, contained a statement that Jones was appointed executor by the Probate Court, as the body of the petition in the instant case similarly relates that The Mansfield Savings Trust National Bank is executor of the Martin estate.

Our examination of Bynner v. Jones, supra, requires us to hold that the trial court properly dismissed the petition in the instant case. We cannot'find that there is a sufficient differentiation between the two cases in the mere fact that The Mansfield Savings Trust National Bank was not a devisee or legatee as was Jones in the Supreme Court case referred to. In the body of the petition in the instant case, the bank was advised that it was executor of the Martin estate, and Jones, if he read the petition in his case, was advised that he was executor as well as devisee. The important fact in the case of Bynner v. Jones and emphasized by the Supreme Court, is that the executor was not expressly made a party to the action and that Section 12080, General Code, requires the executor to be made a party to the action within the six months specified in Section 12087, General Code.

If this result seems harsh, it is to be pointed out that the right to contest a will is a statutory one and that in order to exercise such right, one must conform strictly to the provisions of the statute. The statute conferring jurisdiction on the court in will contest cases limits the jurisdiction to a six-month period. Furthermore, the six-month limitation, instead of a longer one, was provided by the General Assembly in recognizing that estates of deceased persons should be promptly distributed for the benefit of heirs, creditors and all other persons interested.

We might add that in order to verify the facts in the case of Bynner v. Jones, supra, and to be certain of the application of that case to the present case, we examined the briefs filed in the Supreme Court of Ohio. We find that in that case, which was certified by the Court of Appeals for Franklin County to the Supreme Court on the ground of conflict, the brief of defendants, appellees, declared:

“The first question of law is: Whether, when the plaintiffs, in an action to contest a will, fail to name a necessary executor as a party defendant, in the caption of their petition, an allegation in the body of the petition alleging that an executor was appointed is sufficient to constitute such executor a party defendant in the action.”

In unmistakable terms, the Supreme Court answered the foregoing question in the negative.

A case note in 20 Cincinnati Law Review, 305 (1951), by James A. Beinkemper, discusses the decision of Bynner v. Jones, supra, and points out, with appropriate authorities, that the designation of a party in an action in one capacity does not constitute a description of him in another capacity in which he may be engaged. A person acting in two different capacities is, for all intents and purposes, two separate and distinct entities.

For the reasons stated, the judgment of the trial court dismissing the petition is affirmed.

Judgment affirmed.

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


author: Hurd, J.

text:
    Miesz, Appellant, v. Village of Mayfield Heights et al., Appellees.
    (No. 22388
    Decided June 2, 1952.)

      Mr. Frank Leonetti, for appellant.

      Messrs. Squire, Sanders S Dempsey, for appellees.
   Hurd, J.

This case has significance for other than the immediate parties, because it involves the constitutionality of a zoning ordinance regulating the stripping and removal of loam or topsoil from land within residential and other higher use districts; a question not heretofore considered by Ohio courts. The parties will be designated as plaintiff and defendant, as they appeared in the trial court.

The plaintiff, Miesz, is in the business of general excavating and grading and is also a dealer in topsoil and humus. In May 1950 he purchased 100 acres of land located in the U-l or single residence use district in the defendant village of Mayfield Heights, a suburb of metropolitan Cleveland. Some time after the purchase of this land he commenced operations for the stripping and removal of loam and topsoil for commercial purposes. In the meantime, the council of the village on July 19, 1950, enacted an amendment to its original zoning ordinance No. 398, by the terms of which it prohibited absolutely the stripping, removal and hauling of topsoil from land classified under the higher use areas of the village. • Thereupon, Miesz brought this action in equity in the Common Pleas Court of Cuyahoga County to restrain the village and its officers from interfering with his operations, claiming that the zoning ordinance prohibiting such removal was arbitrary and unreasonable and, therefore, unconstitutional.

Thereafter, while this suit was pending, the village council repealed the ordinance prohibiting the removal of topsoil and adopted in lieu thereof an amendment, under date of December 6, 1950, designed to regulate the removal of loam or topsoil from premises located in the higher use districts designated in the original zoning ordinance. Thereupon, an amended and supplemental petition was filed by plaintiff, praying for an injunction and equitable relief, in which it was alleged that the amended ordinance providing for regulation rather than prohibition was likewise invalid because unconstitutional as applied to his land.

Defendants filed answers to the amended and supplemental petition, and the issue was joined on the validity of the ordinance as amended.

When the case came on for trial in Common Pleas Court, the court made a finding that the ordinance in question was a valid exercise of the police power and was reasonable and necessary for the preservation and promotion of the public health, safety and welfare of the village.

Thereupon, the plaintiff appealed to this court on questions of law and fact. After the case was docketed here, the plaintiff applied to the proper officers of the village for two permits to remove topsoil from his premises, in accordance with the conditions of the newly enacted ordinance. One application, dated August 1, 1951, was for the removal of topsoil from five acres of land for which a performance bond in the sum of $2,500 was posted; the second, dated September 26, 1951, was for the removal of topsoil from a second parcel of five acres for which a performance bond was posted in the sum of $500. The permits were granted, and, thereafter, the plaintiff proceeded to conduct operations in accordance with the provisions of the amended ordinance. In view of this fact, the defendants moved to dismiss this appeal as moot. We overruled the motion on the ground that by compliance the plaintiff did not necessarily waive his right to contest the constitutionality of the ordinance. The cause is now before us for trial de novo upon the record made in the court below.

The preamble to the ordinance sets forth the purposes thereof as follows:

“Whereas, the removal of all topsoil or loam from land involves noise and dust in the removal thereof and results in blighted, unsightly areas unfit for use thereby retarding development as useful districts and creating drainage problems, swamp conditions and similar dangers to public health and safety and,

“Whereas, the removal, stripping and hauling is prohibited by provisions enacted in ordinance No. 1950 and,

“Whereas, the council desires to regulate the removal of said loam or topsoil so as to prevent the unsightly waste and other undesirable results, without, however, depriving the owner of the land of his rightful use thereof.” (End of preamble.)

By the terms of the ordinance, it is provided in substance that it shall be unlawful for any person, firm or corporation to strip and remove any loam or topsoil from the land area located in U-l, single-family dwelling; (2) two-family house; (3) apartment house; or (4) local retail and wholesale use districts in the village, unless in conformance with a permit to do so, issued in pursuance to the provisions of the ordinance. The ordinance provides further that any person, desiring to remove loam or topsoil is obliged to file with the building inspector a written application containing information as to the name and address of the applicant, a description of the land from which topsoil is to be removed, specifying the area involved, the method of stripping and removal to be employed, the time within which the work is to be commenced or completed, the type of reseeding or replanting proposed, the depth of the loam or topsoil on the property, the amount proposed to be used during the operation and after its completion, the topography of the land, the ultimate proposed use of the land, and a statement that applicant will bear the expense of a village inspection during the operation under permit and will furnish a performance bond in the sum of $500 for each acre or fraction thereof included in the permit. The ordinance then provides, in substance, that the building inspector shall investigate the statements contained in the application and shall report the application and his findings thereon to the board of zoning appeals, which shall set a date for hearing upon the application.

It is provided further that if, after a hearing, the board of zoning appeals determines that the granting of the application will not adversely affect the public welfare, health, safety and convenience, it shall grant the application with such conditions relating to the method of stripping and removing, the term of the permit, the amount of topsoil and loam to be left on the land, which shall not be less than three inches, the reseeding or replanting, the drainage or topography, and such other conditions as the board may deem necessary for the protection of the public health, safety and welfare, and that such conditions shall be made a part of the permit and constitute limitations thereon.

The ordinance provides also that in the event the board of zoning appeals denies the application, the applicant may appeal to the council of the village within 30 days and the council by majority vote may act on such application, subject to the limitations set forth in the ordinance. It is then provided that upon granting the application, the building inspector shall be instructed to issue the permit containing the conditions imposed upon it, if any, by the granting body, and that such permit shall be isued to the applicant upon the posting of a bond running to the village, conditioned upon the performance of the permit in accordance with its terms and that the bond shall be signed by the applicant and a surety company or two good and sufficient sureties satisfactory to the mayor of the village in the amount provided by the ordinance. Section two of the amended ordinance specifically repeals ordinance No. 1950, which, by its terms, prohibited the removal of topsoil.

Plaintiff in his brief asserts:

“It is therefore the plaintiff’s contention that the ordinance is void and unconstitutional, first, because it places an undue restraint upon the use of plaintiff’s premises; second, that there is no connection between the health, safety and welfare of the community and the ordinance; third, that the ordinance places an onerous burden upon the owner of the premises, — by requiring that he pay for the inspection service and furnish a bond in excess of $50,000, the conditions of which bond no one knows,, and, fourth, that the ordinance is discriminatory in that it prevents the removal of topsoil from plaintiff’s premises while not preventing the removal of houses and other structures that others may have upon their premises and in requiring plaintiff to furnish a bond to guarantee the stripping operation in-accordance with the ordinance, when said village does not require one about to construct a house upon land to furnish a bond that the house will be built in accordance with the plans and specifications submitted for the granting of a permit.”

In considering these contentions, a preliminary question to be determined is whether the regulation of the uses of vacant, lands, including the stripping and removal of topsoil therefrom, falls within the scope of the zoning powers of municipalities under the Ohio Constitution and the laws enacted thereunder.

Any plan or regulation of zoning in Ohio must derive its authority from Section 3, Article XVIII of the Constitution of Ohio, which provides as follows:

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

This provision of the Constitution is implemented by Sections 4366-1 to 4366-12a, both inclusive, General Code.

Inasmuch as the ordinance under discussion involves limitations and regulations of the use of vacant land, we look to the pertinent provisions of Section 4366-8, General Code. In this statute express authority is granted whereby the “council or other legislative body, in the interest of the promotion of the public health, safety, convenience, comfort, prosperity or general welfare, may regulate and restrict the location of buildings and other structures and of premises to be used for trade, industry, residence or other specified uses, and for said purposes divide the municipality into districts of such number, shape and area as may be deemed best suited to carry out the purposes of this section. For each of such districts regulations may be imposed designating the lands or class of trades, industries, residences or other purposes for which buildings or other structures or premises may be permitted to be erected, altered or used subject to special regulations.” (Emphasis added.)

It is clear from a consideration of this section and cognate sections of the Code that the Legislature intended municipalities to have the power and authority to regulate the uses of premises, such as vacant land, within the use areas or districts designated by the council or other legislative body. Pritz v. Messer (1925), 112 Ohio St., 628, 149 N. E., 30.

It follows, therefore, that regulation of the use of vacant land falls within the scope of the zoning powers of municipalities under the Ohio Constitution and laws enacted thereunder, and that such regulation extends to the stripping and removal of topsoil.

We come now to consider whether the amendment to the zoning ordinance of the village of Mayfield Heights is invalid and unconstitutional with regard to the provisions regulating the removal of loam and topsoil from vacant land. This requires consideration of the contentions of plaintiff that there is no connection between the health, safety and welfare of the community and the ordinance, and that the ordinance places an undue and onerous burden upon him as owner of the premises in the respects claimed. In determining these questions it is necessary to consider whether the ordinance is a reasonable regulation of the use of the property in the public interest or an unreasonable interference with the rights of private ownership.

Upon the threshold of these considerations, certain well established legal principles must be conceded. In considering zoning ordinances, the presumption of validity which applies to legislative acts in general applies with equal force to zoning ordinances until the contrary is shown, and if the question is fairly debatable, the legislative judgment must be allowed to control. All zoning laws and regulations must find their justification in some aspect of the public welfare. J3efore a court will declare a zoning ordinance invalid, it must clearly appear that it has no substantial relation to the public health, safety, morals or the general welfare. Conversely, a zoning ordinance will be declared to be invalid where it clearly appears that it has no relation to such considerations. Courts will not substitute their judgment for the will of the legislative body, nor will judicial tribunals attempt to consider the wisdom of such legislation. If the legislation bears a real and substantial relation to the public health, morals, safety or general welfare, it will not be nullified by the judicial process. Whether the power exists to limit or regulate a particular use is to be determined, not by abstract considerations, but by considering it in connection with the facts and circumstances of each particular case.

Village of Euclid v. Ambler Realty Co. (1926), 272 U. S., 365, 71 L. Ed., 303, 47 S. Ct., 114, 54 A. L. R., 1016; Beery v. Houghton, Inspector of Bldgs. (1926), 273 U. S., 671, 71 L. Ed., 832, 47 S. Ct., 474; Zahn v. Board of Public Works (1927), 274 U. S., 325, 71 L. Ed., 1074, 47 S. Ct., 594; Gorieb v. Fox (1927), 274 U. S., 603, 71 L. Ed., 1228, 47 S. Ct., 675, 53 A. L. R., 1210; Nectow v. City of Cambridge (1928), 277 U. S., 183, 72 L. Ed., 842, 48 S. Ct., 447; Pritz v. Messer, supra; City of Youngstown v. Kahn Bros. Building Co. (1925), 112 Ohio St., 654, 148 N. E., 842, 43 A. L. R., 662; State, ex rel. City Ice & Fuel Co., v. Stegner, Dir. (1929), 120 Ohio St., 418, 166 N. E., 226, 64 A. L. R., 916; State, ex rel. Clifton-Highland Co., v. City of Lakewood (1931), 124 Ohio St., 399, 178 N. E., 837 (Certiorari denied, 285 U. S., 549, 76 L. Ed., 940, 52 S. Ct., 406); State, ex rel. Synod of Ohio of United Lutheran Church, v. Joseph (1942), 139 Ohio St., 229, 39 N. E. (2d), 515, 138 A. L. R., 1274; State, ex rel. Cook, v. Turgeon, Bldg. Commr., 84 Ohio App., 287, 77 N. E. (2d), 283; Criterion Service, Inc., v. City of East Cleveland, 55 Ohio Law Abs., 90, 88 N. E. (2d), 300 (Appeal dismissed, 152 Ohio St., 416, 89 N. E. [2d], 475).

Applying these principles of law to the facts of this case, we are of the opinion that the ordinance is a valid and constitutional regulation of the use of plaintiff’s land. In arriving at this conclusion, we are of the opinion that the plaintiff has not clearly established that the provisions of the ordinance as applied to this property are unreasonable, arbitrary or capricious, or that they have no relation to the public health., safety, morals or the general welfare. On the contrary, while there is some conflict in the expert testimony as to the effect of the removal of topsoil from the surface of vacant land, the evidence preponderates in favor of the village. The village produced evidence showing that topsoil supports desirable vegetation, which holds water and prevents erosion by upholding the surface of the ground, and that such topsoil must be present in every area in which desirable vegetation is grown and particularly in residential areas.

The deputy commissioner of health for Cuyahoga county gave credible evidence showing that stripping and removing topsoil to the so-called “hard pan” will alter the drainage pattern of the área in question; and that in level areas such removal normally creates pools of water which become stagnant, producing unhealthy conditions which impose an added burden on the health facilities of the community. In sloping areas, the removal of topsoil does away with protective surface which would otherwise prevent erosion, and this results in “gullying” and a quick runoff of surface water which overtaxes the natural drainage facilities.

The defendant produced evidence showing also, inter alia, that areas without vegetation or upon which weeds and field grass grow will be useless until topsoil is brought in or some effort is made to rehabilitate the stripped areas; that such areas become economically blighted with less chance for development as residential areas; that landscape gardeners who engage in large scale topsoil operations generally do little or nothing to correct the conditions produced by these operations; that they strip the soil and leave the denuded land; that in Mayfield Heights there are approximately 2000 acres subject to stripping and removal ; and that the village is charged by law with alleviating nuisances, providing proper drainage and promoting the public health, safety and welfare.

While plaintiff testified that eventually he intended to allot the land owned by him by constructing streets and installing sewers and in support of this testimony introduced in evidence plats of the proposed allotment, it is obvious that the stripping and removal of the topsoil from the 100 acres is an operation which plaintiff intends shall precede the alloting program. We think it is a reasonable exercise of the police power on the part of the village to regulate such operation by ordinance.

The plaintiff’s contention that the ordinance is unduly burdensome because of the requirement that he furnish bond, as he states, in the sum of $50,000, is not tenable. In our opinion it will not be necessary to place a bond in such a large amount inasmuch as plaintiff will be operating on various parcels at various times. This is indicated by the permits under which plaintiff is now working, the first permit being for five acres under which he posted a bond of $2,500, and the other permit for an additional five acres under which he posted a bond for only $500. Judging by performance, which is the best test, his bond at any time will not be required to be over $3,000. He contends also that the ordinance is burdensome because he is required to pay for inspection services. There is no evidence in the record indicating the cost of such services, and in the absence of such evidence, we cannot hold that an inspection fee per se is unreasonable; particularly when he is not required to pay for a permit in the first instance as required in other jurisdictions. We think the contention that the ordinance is discriminatory in comparison with the provisions for the removal of houses and other structures and in the contention that the village “does not require one about to construct a house upon land to furnish a bond that the house will be built in accordance with plans and specifications” is entirely without merit. We simply dismiss this contention because, at best, it does not set forth any fair basis for comparison.

In our opinion the evidence adduced supports completely the reasons for and the purposes of the ordinance as expressed in the preamble which shows the desire of council to regulate the removal of loam and topsoil in order to prevent unsightly waste and other undesirable results without depriving the owner of the land of his rightful use thereof, and particularly to obviate the dangers to public health and safety.

In view of all the evidence, we think that the ordinance is definitely in the interest of the promotion of the public health, safety, convenience, prosperity and general welfare in a constitutional sense and in accord with the statutory law of the state.

While Ohio has not heretofore considered this subject, other states have upheld the validity of similar legislative enactments. The State of New York has a record of considerable legislation on this subject.

The case of Lizza & Sons v. Town of Hempstead (1946), 69 N. Y. Supp. (2d), 296, is in many respects analogous to the instant case. The facts in that case show that the three towns of Hempstead, North Hemp-stead and Oyster Bay in Nassau county adopted uniform ordinances regulating removal of topsoil in which it was required that applications for permits be accompanied by a plan prepared by a duly licensed engineer or land surveyor setting forth a three dimensional view of the extent of the proposed excavation, the existing conditions of the plot or premises before the work is completed, and the proposed condition of the plot or premises after completion of the work. The ordinances provided further that the applicant file with the clerk a certificate of the commissioner of public works of the county of Nassau showing that such excavation and finished grades of the property as shown on the map will not interfere with the comprehensive draining plan of the town in question ; that six inches of topsoil be left on the surface, from which the topsoil is removed; that an application for certificate of completion shall be accompanied by a map drawn to scale showing a cross-section of the affected property, prepared by a duly licensed engineer or land surveyor after completion of the operations, who shall also certify that there is not less than six inches of topsoil remaining on the ground from which topsoil has been removed; and that the area has been seeded in compliance with the ordinance.

The Hempstead, North Hempstead and Oyster Bay ordinances provided further for a fee of approximately $365 for a permit to strip a four-acre plot, whereas a previous ordinance had provided for a fee of only $96 for a permit for a six-acre parcel. The ordinance further limited a permit to a four-acre parcel whereas an earlier ordinance had permitted the stripping of a six-acre parcel.

We think the ordinances of the three towns are in many respects more stringent than the ordinance here under consideration. The court held that the ordinances in question constituted a reasonable exercise of police power and that they were therefore constitutional. The judgments for defendants were affirmed on appeal. Lizza & Sons v. Town of Hempstead (1947), 272 App. Div., 921, 71 N. Y. Supp. (2d), 14.

To the same effect are the cases of Burroughs Landscape Construction Co., Inc., v. Town of Oyster Bay (1946), 186 Misc., 930, 61 N. Y. Supp. (2d), 123; and Schreiber v. Town of Cheektowaga (1949), 195 Misc., 748, 91 N. Y. Supp. (2d), 403.

These cases are the latest pronouncement in the state of New York and represent the modern view in respect of the exercise of police powers of municipalities in regulating uses of property under zoning laws and ordinances, modifying and in some respects overruling earlier cases in that state.

In Massachusetts, we find the case of Town of Burlington v. Dunn (1945), 318 Mass., 216, 61 N. E. (2d), 243, 168 A. L. R., 1181 (Certiorari denied, 326 U. S., 739, 90 L. Ed., 441, 66 S. Ct., 51), which, while it involved the proposition of an absolute prohibition of the stripping and carrying away of loam and topsoil of the land in a residence district, is cogent in reasoning as applied to an ordinance which provides for regulation only. The court there held that a provision of the zoning bylaw of Burlington, a small residential town near the city of Boston, forbidding the use of land in a residential district for the purpose of stripping and carrying away the topsoil was not unreasonable or unconstitutional as applied to two tracts of land in the residential district aggregating about 45 acres and within one-half mile of a number of residences.

At page 221, the court, speaking through Qua, J., says:

“In our opinion the bylaw is a valid constitutional regulation of the defendants’ use of their land. We may take judicial notice of the fact that Burlington' is a small town, generally residential in character, located within commuting distance of Boston. There are approximately fifty residences within a radius of half a mile from the premises. The defendants have commenced to remove the soil by scraping it into piles with a ‘bulldozer’ and taking it away by means of a steam shovel and trucks. The stripping of the top soil from a tract of land is not only likely to produce disagreeable dust and noise during the process, which may be prolonged, but, more important, after it is completed it leaves a desert area in which for a long period of time little or nothing will grow except weeds and brush. It permanently destroys the soil for agricultural use and commonly leaves the land almost valueless for any purpose. The effect of such an unsightly waste in a residential community can hardly be otherwise than permanently to depress values of other lands in the neighborhood and to render them less desirable for homes. If this process should be repeated upon tract after tract of suburban land the cumulative effect might well become disastrous to certain localities. The town' must continue to maintain roads and public services past such blighted areas in spite of the fact that taxable values are destroyed and development retarded. All this concerns the public welfare in the constitutional sense. Wilbur v. Newton, 302 Mass., 38, 42-43. It is natural that a town of the character and situation of Burlington should endeavor to protect itself against such consequences.”

It is interesting to note that the Massachusetts court took judicial notice of some matters which are in evidence in this case.

The plaintiff, in support of his contentions, has cited the cases of People v. Hawley (1929), 207 Cal., 395, 279 P., 136; Village of Terrace Park v. Errett (C. C. A., 6, 1926), 12 F. (2d), 240 (Certiorari denied, 273 U. S., 710, 71 L. Ed., 852, 47 S. Ct., 100); City of Pittsfield v. Oleksak (1943), 313 Mass., 553, 47 N. E. (2d), 930; Bartsch v. Ragonetti (1924), 123 Misc., 903, 207 N. Y. Supp., 142 (Affirmed without opinion, 214 App. Div., 799, 210 N. Y. Supp., 825); Town of Harrison v. Sunny Ridge Builders, Inc., 169 Misc., 471, 7 N. Y. Supp. (2d), 521; People v. Calvar Corporation (1941), 286 N. Y, 419, 36 N. E. (2d), 644, 136 A. L. R, 1376; People v. Linabury (1924), 209 N. Y. Supp., 126; Lizza & Sons, Inc., v. Town of Hempstead (1940), 175 Misc., 383, 23 N. Y. Supp. (2d), 811; Mercer Lumber Companies v. Village of Glencoe, 390 Ill., 138, 60 N. E. (2d), 913; De Felice v. Zoning Board of Appeals of East Haven, 130 Conn, 156, 32 A. (2d), 635, 147 A. L. R., 161.

We have examined these cases and find that in most instances the questions of absolute prohibition are presented in respect of the removal of valuable materials from land such as rock, sand, gravel, timber, etc., rather than questions of regulation. The early cases which declared invalid bylaws and ordinances concerning the removal of topsoil and other materials whether by prohibition or regulation have since been rendered of little or no effect by reason of later legislative enactments or by judicial decisions overruling or modifying the earlier pronouncements.

It would serve no good purpose to extend this opinion further with a discussion of cases which have little or no analogy to the issues of the instant case, or are so early m point of time as to be neither authoritative nor persuasive in relation to Ohio law.

We conclude, therefore, that the ordinance in question is a valid and constitutional exercise of the police power, having a reasonable relation to the health, safety, convenience, prosperity and welfare of the village, and that a decree should accordingly be entered for the defendants.

Judgment for defendants.

Skeel, P. J., and Thompson, J., concur.


author: Matthews, J.

text:
    Kimball, Appellee, v. City of Cincinnati, Appellant.
    (No. 7482
    Decided October 29, 1951.)

      Messrs. Lindhorst & Dreidame, for appellee.

      Mr. Henry M. Bruestle, city solicitor, Mr. J. B. Grause, Jr., and Mr. Wm. C. McClain, for appellant.
   Matthews, J.

"While walking on the sidewalk on Race street, near 9th street in the city of Cincinnati, the plaintiff stumbled and fell, whereby she received certain physical injuries. This incident occurred on a bright, sunshiny day in April, between one and two o’clock in the afternoon. The sidewalk was dry. At that point there was an offset, varying from one-half inch to one inch, extending in a crooked line across the sidewalk. The offset was caused by the difference in level of two adjoining slabs of cement composing the sidewalk. The irregularity was caused by the chipping off of the edge of one or both the slabs. There was no one with or near the plaintiff when she fell. She was carrying a handbag of standard size, and there was nothing diverting her attention or interfering with her view of the sidewalk. Nevertheless, when she stepped on this uneven space with one foot her other foot struck this offset and she fell.

In this action, the plaintiff seeks damages from the defendant on the theory that it defaulted in its duty to keep the street in repair and free from nuisance, as required by Section 3714, General Code. The defendant denied that it had been negligent in its care of the street and alleged affirmatively that the plaintiff had been negligent.

The issues of fact were submitted to a jury, which returned a verdict for the plaintiff. Judgment was rendered on the verdict, and it is from that judgment that this appeal was taken by the defendant.

At the close of the plaintiff’s evidence and at the close of all the evidence the defendant moved for an instructed verdict. These motions were overruled. The same question was raised by motions after the verdict and judgment. And that question — that the evidence as a matter of law is insufficient to carry the case to the jury — is the point to which the defendant has devoted most of its time and attention on this appeal. i

In a lengthy brief and an earnest argument, defendant presses upon us the inconsistency of holding a municipality liable under the circumstances of this case when in other categories of the law under similar circumstances, courts have not hesitated to hold that no liability is shown and have entered final judgment for the defendant. Counsel urge that the defendant has violated no duty, that the sidewalk can in no true sense be said to have been out of repair, and that the plaintiff’s injuries were caused by her own negligence or by a mere accident attributable to no one’s negligence.

On the subject of the plaintiff’s conduct, they cite the “step in darkness” cases, the “should have seen” eases applicable in cases of collisions between pedestrians and moving vehicles, the “railroad crossing” cases, and perhaps others, as analogous cases in which no liability exists.

There is no doubt that there is a great similarity between those cases and the case at bar. Logic and symmetry would dictate that they be governed by the same fundamental principle, but they are in different categories and have different histories. It has been said that the law owes its present status as much to history as to logic. So we do not feel at liberty to use cases in those different categories as guides in this case, especially as there is a wealth of precedents in cases of this same class.

Basing our conclusion on the authority of sidewalk cases, we do not believe we would be justified in holding as a matter of law that the defendant had discharged its duty under Section 3714, General Code, to keep its street in repair and free from nuisance.

This is, however, a borderline case, both on the issue of the defendant’s alleged dereliction of duty and also on the issue of contributory negligence. Certainly, defendant is not under an obligation to keep its streets in a perfect condition. Something more than a defect must appear to fasten liability upon the municipality. If its street is reasonably safe for travel in the ordinary mode, it has discharged its full duty to the public under the statute. This was the rule announced in City of Dayton v. Glaser, 76 Ohio St., 471, 81 N. E., 991, 12 L. R. A. (N. S.), 916, and the rule has been approved time and again, notwithstanding the disapproval of the decision in that case. Gibbs v. Village of Girard, 88 Ohio St., 34, 102 N. E., 299.

While it would seem that a jury with an appreciation of the meaning of the rule of reasonable and ordinary care would hesitate to hold the aggregate body of citizens — the municipality — to a liability for so slight a departure from a perfect sidewalk, it is nevertheless an issue within their province, and not one for the court. How extensive a defect must be to warrant the submission of the issue to the jury has perplexed the courts as is made manifest by the collection of eases in the annotation to the case of Ray v. Salt Lake City (92 Utah, 412, 69 P. [2d], 256), in 119 A. L. R., 153.

Where, however, the defect approaches the insignificant, the issue should be submitted to the jury with the utmost clarity, and in such a case the issue of the plaintiff’s duty should be presented with equal clarity and accuracy.

In this case, it is our opinion, that error intervened in the submission of the issue of contributory negligence, in that the court erred in refusing to give a special charge requested by the defendant. This charge (No. 10) is:

“If you find from the evidence that the plaintiff, in broad daylight, with nothing to obstruct her view, went over the portion of the sidewalk in question; that the condition of the sidewalk was then obvious, apparent and visible, and that she could have avoided falling by the exercise of ordinary and reasonable care, then your verdict should be for the defendant, the city of Cincinnati. ’ ’

This charge correctly states the law and should have been given.

Defendant also requested this special charge (No. 9), which was refused:

“If you find from the evidence that the plaintiff was guilty of negligence [in failing to look where she walked in broad daylight] and if you find that such negligence was a proximate cause of and directly contributed in the slightest degree to the accident, you must bring a verdict for the defendant, the city of Cincinnati, even though you find that the defendant was guilty of a violation of its statutory duty.”

In the opinion of the writer, this charge should have been given. The only possible objection to either of these charges is that they assume that it was broad daylight, but that was not in dispute. The plaintiff so testified.

We are unanimously of the opinion that the prejudice resulting from the refusal to give special charge No. 10 was emphasized by contradictory statements in the general charge on the subject of the conditions under which the jury would be justified in finding a verdict for the plaintiff. In the early part of the charge, the court correctly stated that the plaintiff could recover only in the event it found both issues, that is, the issue of defendant’s .negligence and contributory negligence, in plaintiff’s favor. However, just before turning to the subject of the measure of damages the court instructed the jury that if the cause of plaintiff’s injury “was the negligence of the city of Cincinnati in not keeping its sidewalk open, in repair, and free from nuisance, then your verdict would be for the plaintiff.” (Emphasis ours.) The court failed to add the qualifying statement that it must also find the plaintiff free from contributory negligence before she would be entitled to a verdict. This was error. 39 Ohio Jurisprudence, 928 et seq.

As already stated, we are unable to follow the defendant in its contention that this court should find as a matter of law that the record shows no cause of action. That was what the Common Pleas Court did in the case of Stoffel v. City of Cincinnati, 87 Ohio App., 235, 93 N. E. (2d), 303, which this court reversed and remanded for a new trial, so that the issues could be submitted to the trier of the facts. We do not recede from that position. However, in the case at bar, the issues have been submitted to the jury. The entirely different question is presented as to whether its findings are supported by sufficient evidence. After giving this matter careful consideration, we have reached the conclusion that upon both issues the verdict is manifestly against the weight of the evidence, and that the judgment must be reversed on that ground as well as on the other grounds set forth.

We find no other error in the record.

For these reasons, the judgment is reversed and the cause remanded for a new trial.

Judgment reversed.

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


author:
      Per Curiam.

      Ross, J.,

text:
    Griffin, Appellee, v. City of Cincinnati, Appellant.
    (No. 7540
    Decided April 28, 1952.)

      Mr. Leo J. Brumleve, Jr., for appellee.

      Mr. Henry M. Bruestle, city solicitor, Mr. Maurice W. Jacobs and Mr. J. B. Grause, Jr., for appellant.
   Per Curiam.

On March 3,1949, at about 7 p. m., the plaintiff, a man 37 years of age and in good health, approached the intersection of Sycamore and Eighth streets in the city of Cincinnati, going eastwardly on the north sidewalk of Eighth street. He was walking ata“ normal pace, ’ ’ and, as he neared the intersection, he did not glance down at the sidewalk, but constantly looked straight ahead. He intended to turn northwardly on the sidewalk on Sycamore street. It was twilight and an electric light on a stanchion located on the sidewalk near the curb on Sycamore street on the projected line of the north edge of the Eighth street sidewalk was lighted. There was some illumination of the intersection by other street lights. The sidewalk was constructed of concrete blocks and on a line with the north building line of Eighth street and about the middle of the Sycamore street sidewalk an offset of about one and one-half inches existed and a small section of one of the blocks was missing, making a shallow depression of undetermined depth. The plaintiff did not see either the offset or the depression before he fell while in the act of turning to go north on Sycamore street. It was either the offset or the depression, or both, that caused him to fall. His foot caught on this defect in the sidewalk.

The court overruled the defendant’s motion for an' instructed verdict. The jury found for the plaintiff. The court overruled the defendant’s motion for judgment notwithstanding the verdict, and entered judgment on the verdict. This appeal is from that judgment. Various errors are assigned.

(1) It is urged that the court should have found for the defendant as a matter of law. It is urged that in no true sense can it be said that the defendant failed to perform its statutory duty imposed by Section 3714, General Code, to keep its streets open, in repair, and free from nuisance. To the same conclusion, it is contended that no cause of action arises in favor of one who exposes himself to an open, visible danger, even though, he does uot know of its existence, as he is required to take notice of such plainly apparent hazards.

In this case the plaintiff was not familiar with this sidewalk. It was at a time when both natural and artificial lights were most uncertain and deceptive. And, undoubtedly, the plaintiff’s attention was more dispersed while turning than it would have been while walking in a straight line with his view unobstructed in any way by the abutting building.

At any rate, the plaintiff did not see the offset and the depression until after he had stepped upon one or the other. It seems to us that that fact places this case in the class with Kimball v. City of Cincinnati, ante, 487, recently decided by this court with, perhaps, greater reason for holding that the evidence presents a case for the determination by a jury of the issues of negligence and contributory negligence. As stated in Kimball v. City of Cincinnati, supra, we regard that as a borderline case. That is also our view of the case at bar. It would serve no purpose to restate our position in detail. We refer to the opinion in that case.

The case at bar differs from the case of Friedman v. City of Cincinnati, ante, 160, more recently decided by this court, in that the plaintiff testified that before and at the time he stepped upon the tilted slab which caused him to slip and fall, there was no hidden or unknown condition. Friedman was aware of all the hazards. That cannot be said of the case at bar.

We find no error in overruling the defendant’s motions for judgment and submitting the issues of fact to the jury.

It is urged also that the court erred in the giving and refusal of certain special charges.

The court refused to give this special charge, requested by defendant:

' “If you find from the evidence that the plaintiff was guilty of negligence in failing to look where he walked at the time and place as alleged in the petition filed herein, and if you find that such negligence was a proximate cause of and directly contributed in the slightest degree to the accident, you must bring a verdict for the defendant, the city of Cincinnati, even though you find that the defendant was guilty of a violation of its statutory duty.”

It is urged in support of this refusal that the special charge assumed that the plaintiff failed to look where he was walking. Authorities are cited to sustain this position holding that a charge which assumes a controverted fact is an invasion of the province of the jury and is erroneous. There is no doubt about that rule. Its inapplicability here results from the fact that the fact assumed was not controverted. The plaintiff testified that he did not look. He, of course, was bound by his own testimony. The only issuable fact left, therefore, was whether such failure constituted negligence, and that issue was left to the jury. We hold that the special charge was a correct statement of the law applicable to, the controverted facts and that the court erred in refusing to give it.

But it is urged that no prejudice resulted because of the giving of other special charges at defendant’s request. We have examined the special charges relating to the duty of the plaintiff and find that none of them submitted to the jury the specific issue of whether the admitted failure to devote at least some of his sense of vision to the sidewalk upon which he was walking was a failure to exercise reasonable care — whether it was negligence.

We, therefore, conclude that the failure to give the special charge was prejudicial.

At the plaintiff’s request, the court gave this special charge:

“The court charges you that, if you find that the sidewalk in question was not in a state of repair at the time plaintiff fell and that this condition existed for a time sufficient to have given the city of Cincinnati constructive notice of its condition, then it was the duty of the city to notify the abutting property owner to repair it and if said property owner failed to do so within a reasonable time it was the duty of the city to make the repairs and to recover the costs thereof from such property owner. ’ ’

The defendant excepted to the giving of this charge, and now assigns this as error.

The duty of the abutting property owner was entirely irrelevant to the issues in this case between a pedestrian on the sidewalk and the municipality. Whether it was the duty of the municipality to notify the property owner was immaterial. This irrelevant and immaterial issue was coupled with a positive vice in the charge that gave the municipality more than a reasonable time to repair the sidewalk. It permitted the municipality to notify the property owner to repair and then wait a reasonable time for him to repair the defect before proceeding to perform its duty. This gave the municipality more than a reasonable time after notice of the existence of the defect. While part of the charge was favorable to defendant and part unfavorable, we are of the opinion it was prejudicial error to give this charge.

We find no other prejudicial error in the record.

For these reasons the judgment is reversed and the cause remanded for further proceedings according to law.

Judgment reversed.

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

Ross, J.,

dissenting. I cannot agree that the court committed error in refusing the special instruction, requested by the defendant, quoted in the opinion of the majority.

Here is a cleverly designed pitfall for the jury. It is true that the trained legal mind is able to dissect the language employed and arrive at the conclusion that the jury is not told that failure to look is negligence as a matter of law, but the average layman would so construe such instruction and the court properly refused it. It is more than apparent that the attention of the jury was intended to be directed to the words, “guilty of negligence in failing to look where he walked. ’ ’

Technically, and from a pure academic standpoint, the words, “if you find from the evidence,” may be said to stabilize the charge as correct. In this particular case, where as stated in the opinion of the majority “the plaintiff’s attention was more dispersed while turning than it would have been while walking in a straight line with his view unobstructed in any way by the abutting building,” the jury should be presented an instruction which in no way may be construed to state that failure to look directly at a defect in the sidewalk is negligence, and that is exactly what a jury of laymen would infer from the charge refused, although that is not what is actually stated.

I think that this special instruction should receive the definite disapproval of the court, and that in no case should it be given. It contains a correct statement of law which will always mislead the jury into a misapprehension of what is the applicable rule.

It falls within the category of those special instructions which furnish the basis upon which counsei rest their claim to astuteness in the law, and the layman’s charge that the law is designed to confuse not to clarify.

Now as to the special instruction given by the court, quoted in the majority opinion, requested by the plaintiff, and objected to by the defendant: The “vice” in this instruction mentioned in the majority opinion is one of which the plaintiff might have complained, but certainly the city may not complain, because the period of justifiable inaction is erroneously extended in the instruction. The charge was erroneous, but not prejudicially so, toward the city, which complained because it was given.

The instruction did deal with matters extraneous to the issues involved. But was the jury misled to the prejudice of the defendant? In the argument of the case something was said about the jury being in doubt about respective liabilities of the abutting owner and the city. I fail to see any serious injury to the city’s case, because the jury is told that the city is responsibile for its negligence, and plaintiff has a right of recoupment. I do not think the giving of the charge amounted to error warranting the setting aside of the verdict for the plaintiff.

I think the judgment should be affirmed.


text:
    Taylor, Appellant, v. Monroe, Treas., et al., Appellees.
    (No. 22341
    Decided January 28, 1951.)

      Mr. James C. Maher, for appellant.

      Mr. Frank T. Cullitan, prosecuting attorney, and Mr. A. M. Braun, for appellees.
   Thompson, J.

This case involves an appeal by plaintiff, on questions of law, from a judgment of the Common Pleas Court sustaining a demurrer to plaintiff’s petition, and, on plaintiff desiring to plead no further, dismissing plaintiff’s petition and entering judgment for defendants for their costs.

Plaintiff’s petition alleged that, in 1938, he acquired two sublots in the city of Cleveland, which he owned until June 13, 1950, when a decree of the Common Pleas Court in a land court case divested him of title because of delinquent taxes upon the premises. Plaintiff further alleged that in February 1950, on application of the Board of Revision of Cuyahoga County, the Common Pleas Court had entered an order forfeiting the two parcels aforesaid for unpaid taxes, assessments, penalties and interest; that these parcels were offered for sale at county auditor’s sale and sold on April 24, 1950, for $2,100. Plaintiff’s petition alleged further that the premises in question constituted property registered under the Torrens law (Section 8572-1 et seq., General Code); that at various dates previous to the sale, the city of Cleveland and the county of Cuyahoga had levied special assessments against the parcels, at a time while Section 8572-56, General Code, was still in force and effect; and that no notices of such assessments were ever filed with the county recorder as required by the last mentioned section of the Ohio Torrens Law.

Plaintiff therefore alleged • that the special assessments were void, invalid, uncollectible and unenforceable insofar as they attempted to affect the property of plaintiff and that the assessments were not subject to collection by the defendant county auditor or the defendant county treasurer.

Plaintiff alleged further that, despite such facts, the special assessments were placed on the tax duplicate and certified to the county treasurer for collection and that, when the two parcels of plaintiff were offered for sale at the forfeited land sale, these delinquent assessments were included in the total tax delinquency which appeared in the advertising of such premises for sale.

Plaintiff alleged further that on September 28, 1950, subsequent to the forfeited land sale, he presented himself to the county auditor to collect the amount representing the difference between the sum of the general taxes, interest, and penalties, which he admitted were properly due and owing to the county, and the sum of $2,100 for which the premises were in fact sold. Plaintiff averred that the defendant county treasurer owed him this difference, thereby urging, in effect, that the treasurer was not entitled to withhold any amounts based upon uncollectible special assessments. In his prayer for relief, plaintiff asked that the defendant county auditor bring in his records and that the defendant county treasurer pay to him the difference requested. In addition to the county treasurer and county auditor, plaintiff named as defendants the board of county commissioners and the city of Cleveland.

The city of Cleveland filed no pleadings, but the other defendants filed a joint demurrer on the ground that the petition failed to state facts setting forth a cause of action. The trial court sustained the demurrer, not on the ground urged by the defendants, but for the following reasons stated in the entry:

“Demurrer sustained for a misjoinder of all parties except county treasurer. Plaintiff may have leave to amend as against county treasurer, if recovery against him is sought for amount being held to plaintiff’s credit under statute. If plaintiff desires not to plead further in accordance with this entry, judgment for costs to be entered.”

Error of the trial court in sustaining the demurrer and in entering final judgment for defendants is urged by plaintiff, appellant in this court.

The foregoing recitation of the allegations of the petition, admitted by the demurrer, reveals that an original question is presented by the pleadings. The petition was filed on October 13, 1950, less than six months after the tax sale and about two weeks after plaintiff had presented himself to the appropriate county officials to obtain the “excess” owed and payable to the former owner under Section 5757, G-eneral Code. That section provides as follows:

“If any of such forfeited lands are sold for a greater sum than the amount of such tax, assessment, interest, penalty, and costs of sale, the county auditor shall charge the county treasurer separately in each case, in the name of the supposed owner, with the excess above such amount. The treasurer shall retain such excess in the treasury for the proper owner of the forfeited lands, and upon demand by such owner, within six years from the day of sale, shall pay the excess to him. ’ ’

The question apparently raised for the first time in this case is with respect to the “excess” in the hands of the county treasurer, as a result of the auditor’s sale. Plaintiff is insisting that the auditor and treasurer shall not deduct for the delinquent special assessments charged against the property, and admitted by the demurrer to be invalid, in an approximate total of $1,188, and that he be paid the difference between the sale price ($2,100) and the delinquent taxes, interest, and penalties, exclusive of special assessments, in a total of approximately $716. In other words, plaintiff is claiming that the excess in the hands of the county treasurer to which he is entitled represents approximately $1,383 and not the $194 offered to him by the county treasurer.

There appears to be no dispute as to the foregoing amounts referred to in the briefs of counsel. The only question is whether plaintiff in the instant case is entitled to litigate the question of the amount of excess owed to him or whether he is barred by the previous court actions referred to in his petition or otherwise. We find no such bar.

Under Section 5757, General Code, a delinquent land owner seasonably makes his request for the excess to which he may be entitled at any time within six years after a forfeited land sale. That section would therefore seem to be controlling and would permit plaintiff to litigate the question of the amount of excess at this time unless the sum may have been previously litigated and determined, or unless there should be some other applicable statute under which the question should have been previously disposed of, so that plaintiff is tardy in asserting his rights.

To determine this latter question, we are required to examine the two earlier court actions referred to in the petition, while keeping in mind that the demurrer of the defendants has admitted that notice of the special assessments was never filed with the county recorder as required by Section 8572-56, General Code (115 Ohio Laws, 446), and that said assessments, so far as Torrens parcels were concerned, are therefore invalid and so admitted by the demurrer.

Plaintiff refers in his petition to the fact that he was divested of title to the two parcels in land court case No. 3577 in the Common Pleas Court. This allegation calls for the examination of Section 8572-58, General Code, then, and at the present time, in effect. That section declares that a purchaser of Torrens property at tax sale shall, within sixty days after date of the tax deed, file a petition in court in which all persons interested shall be made parties. The section provides further as follows:

“Any person interested in the land may show, as cause why such certificate of title shall not issue, any fact that might be shown at law or in equity on his behalf to set aside such tax deed; and the party named in the tax deed shall be required to show affirmatively that all of the requirements of the statute to entitle him to a deed have.been strictly complied with; and in such suit the court may decree such deed and tax sale under which the same was issued to be invalid for the purposes of entitling the purchaser or grantee to a transfer of the title to said land and order the same to be cancelled upon the payment by any party in interest to said purchaser or grantee of the amount so paid by him on such tax sale and subsequently as taxes on the property, together with interest on all such sums.”

We find that the foregoing provisions of Section 8572-58, General Code, admittedly followed by the purchaser in this case, were for the purpose of perfecting title in the purchaser and although plaintiff, as former owner, was properly made a party to such proceeding, it was not incumbent upon him in such action to raise the question of the validity or nonvalidity of any special assessments. Since taxes were admittedly delinquent during the requisite period, the property was properly sold, and there was no occasion or reason, in such proceeding brought for the benefit of the purchaser, for the former owner to raise the question of the actual amount of the delinquencies. If plaintiff desired to attack the validity of the proceedings involving the forfeiture of his title to the premises he, of course, had earlier opportunity to do so under the provisions of Section 5718-lc, General Code. His petition admitted the forfeiture proceedings and court action under Section 5718-lc, General Code. It must be pointed out, however, that under that section, applicable to the forfeiture of land for nonpayment of taxes, only four objections may be made to the action of the county board of revision taken under Section 5718-1, General Code. The four objections enumerated in Section 5718-lc, General Code, on the part of the owner of delinquent lands, properly able to be urged against the forfeiture proceedings, are the following:

“1. That the taxes or assessments, penalties and interest have been paid.

‘ ‘ 2. That the lands or lots are not properly listed.

“3. That the proceedings to omit such lands or lots from the foreclosure list have been irregular.

“4. That the lists provided for in Sections 5704 and 5718-1& of the General Code have not been published according to law.”

We believe it obvious from examination of the four objections authorized that the proceeding under Section 5718-lc, General Code, gives no opportunity to the delinquent land owner to raise the question of the illegality of special assessments or to contest the amount of the delinquent taxes.

Since the petition shows on its face no other court action taken by the plaintiff, and since none is alleged by the defendants, and since the latter have chosen to demur rather than to raise an affirmative defense, it is our belief that the plaintiff, in raising in the court below the question of the amount of excess to which he was entitled under Section 5757, General Code, in fact set forth a cause of action. To deny plaintiff a hearing under such circumstances, as to questions not previously litigated, is to deny him his day in court.

The judgment is reversed and the cause is remanded to the trial court with instructions to overrule the demurrer and for further proceedings according to law.

Judgment reversed.

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