author: Skeel, P. J.

text:
    Kraus, Appellee, v. City of Cleveland et al., Appellants.
    (No. 22062
    Decided December 18, 1950.)

      Mr. Myron D. Malits and Mr. Wm. J. Kraus, for appellee.

      Mr. Lee C. Rowley, director of law, and Mr. Robert J, Selzer, for appellants.
   Skeel, P. J.

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

The plaintiff in his amended petition alleges that he is a taxpayer of the city of Cleveland and brings this action on behalf of all taxpayers similarly situated, pursuant to Section 4314, General Code, and the applicable provisions of the charter of the city of Cleveland, after the law director, upon due notice, refused in writing to bring such action.

The plaintiff alleges that the city council, on or about February 9, 1944, passed ordinance No. 1316 A 43, which became Sections 2925-11 to 2925-22 of the Municipal Code of the City of Cleveland, commonly known as the “bingo” ordinance, the purpose of which was to license the conduct of games of chance operated for charitable purposes.

The plaintiff alleges further that the commissioner of assessments and licenses of the city, acting under the authority of the bingo ordinance, has licensed about 40 bingo parlors which are now operating within the city of Cleveland.

The amended petition then describes the game of “bingo” or “keno” and concludes with the allegation that such game, as authorized by said ordinance, consists solely of a price or consideration paid by a player for the privilege of the chance of winning a prize, and that such game constitutes gambling through the operation of a lottery.

The amended petition alleges further that the bingo parlors have an annual income in excess of $4,000,000; that less than three per cent of such amount is given for charitable purposes; that the licensing of bingo games is contrary to the laws of the state and in violation of the Constitution of Ohio; that the city is without legal authoi’ity to license and legalize gambling and lotteries; that, in so doing, the commissioner of assessments and licenses has been and is expending tax funds which have been approved and paid by the city treasurer; and that unless enjoined such public expenditures will continue to be made for licensing and supervising bingo parlors.

The plaintiff then prays that the defendants be enjoined from issuing licenses and expending tax funds in carrying out the terms of said bingo ordinance, and that the court declare such ordinance void and the licenses issued thereunder void and of no legal effect.

The defendants filed a joint answer in which they admit all the allegations of plaintiff’s amended petition except those describing the game of bingo and that such game constitutes a lottery and deny the number of licenses issued and the income received in operating such bingo parlors and that the ordinance or licenses issued thereunder are void and of no effect and in violation of the Constitution of the state of Ohio.

The defendants then allege that the bingo ordinance was passed under the home-rule provisions of the Constitution of Ohio and is simply a regulatory ordinance imposing necessary restrictions on those licensed to conduct bingo games for charitable purposes, and that the ordinance is not in conflict with the laws or the Constitution of Ohio.

The plaintiff’s reply denies all the affirmative allegations of the defendants’ answer.

The evidence, supplemented by the facts admitted by the pleadings, establishes that bingo is a lottery and that those who conduct such games are in fact conducting a lottery in that such licensees sell the chance to win a prize for a stipulated consideration. The evidence shows also that about 40 bingo parlors have been issued licenses which purport to authorize the holder to operate a scheme of chance and contain on the face thereof the charitable enterprize for whose benefit the games are to be operated. The evidence of the commissioner of assessments and licenses shows that over $3,000,000 in gross receipts was reported by the 40 licensees during the year 1948, of which less than three per cent was given to charitable beneficiaries.

There is just one question presented and that is whether the city of Cleveland has legal authority to license the conducting of a lottery where some part of the income is set aside for a charitable purpose.

Section 6, Article XV of the Constitution of Ohio, provides:

“Lotteries, and the sale of lottery tickets, for any purpose whatever, shall forever be prohibited in this state.”

Prior to 1943, Section 13064, General Code, was in effect and provided as follows:

“Whoever establishes, opens, sets on foot, carries on, promotes, makes, draws or acts as ‘backer’ or ‘vender,’ for or on account of * * * a lottery * * * or scheme of chance, by whatever name, style, or title denominated * * * shall be fined not less than fifty dollars nor more than five hundred dollars and imprisoned not less than ten days nor more than ninety days. ’ ’

In 1943 this section was amended to read as follows:

“Whoever, for his own profit, establishes, opens, sets on foot, carries on, promotes, makes, draws or acts as ‘backer’ or ‘vendor’ for or on account of a lottery or scheme of chance, by whatever name, styie, or title denominated * * * shall be fined not less than fifty dollars nor more than five hundred dollars and imprisoned not less than ten days nor more than six months. ’ ’

The pertinent sections of the “bingo” ordinance are:

“Section 2925-11. Definitions: ‘Game of chance’ for the purposes of this ordinance shall mean any game, other than policy, constituting a lottery, by whatever name, style or title denoted, participated in by two or more players for any prize, gift or award of thing of value, where a charge is made, or other consideration paid by any player for the right to participate in such game and the dominating factor in determining the result of such game is chance, notwithstanding that such result may be dependent to some extent upon the judgment, intelligence or adroitness of the player.

“ ‘Charitable purpose’ shall include any charitable, benevolent, philanthropic, religious or fraternal purpose.”

Section 2925-12 provides that no one shall conduct such games of chance until a license is granted as provided by the ordinance.

Section 2925-13 provides in part that no license to conduct games of chance shall be issued except for charitable purposes.

Section 2925-15 provides the manner and form in which the application for a license to conduct a game of chance shall be made and the information to be contained in such application.

Section 2925-17, relative to the issuance of licenses, provides:

“After such hearing and upon receipt of the application from the director of public safety with recommendations endorsed thereon approving the same, and following public hearings before the commissioner of assessments and licenses if satisfied that the applicant is of good character, and that the premises and conditions under which the licensee is to operate meet with the sanitary, building and fire regulations, shall issue a license, notwithstanding any other provisions of the Municipal Code to the contrary, specifically Section 2978 to 2985-5, inclusive, and as an exception thereto. Each license shall contain the name of the beneficiary for whom the game is to be conducted as stated in the application, the name of the person to whom issued, the date or dates upon which said game or games is or are to be conducted and the location where conducted, and the date of expiration. The license shall not be transferable and shall be limited to the location specified therein unless otherwise authorized in writing by the commissioner of assessments and licenses for good cause shown.”

Section 2925-19 prescribes the duties of the cornmissioner of assessments and licenses in supervising and enforcing the regulations for the conducting of a game of chance and the obligation of licensees to make reports, which reports shall contain the gross income of the game, the amount charged against such income for expenses, and the amount paid to the charitable beneficiary. The section provides also that games shall not be conducted except between the hours of 1:30 p. m. and 4:30 p. m. and between 7:00 p. m. and 12 p. m.

It is the conclusion of the defendants that Section 6, Article XV of the Constitution, is not self-executing; that Section 13064, General Code, provides a penalty where one “for his own profit” conducts a lottery; and that since the statutes of Ohio do not prohibit or impose a penalty for one conducting a lottery other than for his own profit, the city is empowered to license and regulate lotteries conducted for charitable purposes.

It is contended that the decision of the Supreme Court in the case of State v. Parker, 150 Ohio St., 22, 80 N. E. (2d), 490, fully supports the defendants’ position that Section 6, Article XV of the Constitution of Ohio, is not self-executing and, therefore, cannot affect the validity of the bingo ordinance until legislation is enacted to prohibit and make punishable all lotteries or games of chance.

An examination of that case discloses that such is not the fact. The Parker case involved the sufficiency of the allegations of the indictment in an attempted prosecution of a defendant under Section 13064, General Code, as amended, effective September 21, 1943, which indictment failed to allege that the lotteries conducted by the defendant were conducted “for his own profit.”

In the Parker case the court said:

“An examination of various statutory provisions on the subject discloses a general legislative policy to prohibit and declare void all gambling contracts of every description, but only certain of such transactions are made punishable by fine and imprisonment of those who engage therein. There are many and various inhibitory provisions in the state Constitution for the violations of which no penalties are prescribed: such inhibitory provisions may. be implemented only by appropriate action by the General Assembly.

“It is well settled that before an act of the General Assembly, providing for the exercise of any plenary power, can be held to be unconstitutional the prohibition of such exercise must be found in express terms or be clearly inferable from the language of the Constitution. 8 Ohio Jurisprudence, page 251.

“Section 13064, General Code, is not in conflict but, so far as it goes, is in harmony with the provisions of the Constitution referred to. It does not authorize or ■give validity to any gambling transaction. It does impose a fine and imprisonment upon anyone who, in the capacity stated, engages in any of the transactions enumerated in that section ‘‘for his own profit. ’’ (Emphasis ours.)

That case does not hold that Section 6, Article XV of the Ohio Constitution, is not self-executing. In fact from the full context of the opinion it is clearly indicated that such section is self-executing to the extent that it discloses the public policy of the state to be that “lotteries, and the sale of lottery tickets, for any purpose whatsoever, shall forever be prohibited in this state.” While there can be no criminal prosecution of one who violates the provisions of Section 6, Article XV of the Constitution, with respect to acts that do not come within the provisions of Section 13064, General Code, until the Legislature provides therefor, there being no common-law crimes in Ohio, certainly by the same token neither the Legislature of the state nor the council of a municipal corporation has the power to authorize for any purpose, charitable or otherwise, the right to conduct a lottery or sell lottery tickets in direct conflict with such constitutional provision. Such an act or ordinance would be unconstitutional and void.

The law is clearly set forth in 1 Cooley on Constitutional Limitations (8 Ed.), at page 170, where the author says:

“In determining when a constitutional provision is self-executing, there is a distinction between a declarative limitation of legislative power on a given subject, within which legislation may or should be enacted, and positive constitutional inhibition which no legislative act can relieve or modify; the former might require future legislation; the latter must, from its nature, be self-executing * * * and the mere fact that legislation might supplement and add to or prescribe a penalty for the violation of a self-executing provision does not render such provision ineffective in the absence of such legislation.

And at page 166, note 2, ibid., it is said:

“Any constitutional provision is self-executing to this extent, that everything done in violation of it is void. * * * A provision that ‘the legislature shall have no power to authorize lotteries for any purpose, and shall pass laws to prohibit the sale of lottery tickets in this state’ was held to be of itself a prohibition of lotteries. Bass v. Nashville, Meigs, 421; Yerger v. Rains, 4 Humph., 259.”

, See, also, State, ex rel. Kellogg, Atty. Genl., v. Kansas Mercantile Association, 45 Kan., 351, 25 P., 984, 11 L. R. A., 430; People v. McPhee, 139 Mich., 687, 103 N. W., 174, 69 L. R. A., 505; City of Seattle v. Chin Let, 19 Wash., 38, 52 P., 324.

We conclude, therefore, that the plaintiff is entitled to the relief prayed for. A judgment may be entered as in the Common Pleas Court.

Judgment for plaintiff.

McNamee and Hurd, JJ., concur.


source: Caselaw Access Project

author: Matthews, J.

license: Public Domain

text:
    Mayer, Appellant, v. The Cincinnati Economy Drug Co., Appellee
    (No. 7419
    Decided May 21, 1951.)

      M'essrs. Ginocchio & Ginocchio, for appellant.

      Messrs. Frost & Jacobs and Messrs. Gardner, Fretting <& Overbeclt, for appellee.
   Matthews, J.

This is an appeal on questions of law and fact. The plaintiff, a shareholder, seeks an injunction commanding the defendant, a corporation, to permit him to inspect its list of shareholders for the years 1947,1948,1949, and 1950.

The defendant, by its answer, admits that the plaintiff has been a shareholder of record since January 10, 1948, and that through his counsel, on J anuary 5, 1950, requested permission to inspect the books, list of shareholders and their addresses, or, in the alternative, that defendant furnish the inf r rmation to him in writing, part of which information was furnished him. As to the information not furnished which included the list of shareholders and their addresses, the defendant charged that the request therefor was not made for a reasonable or proper purpose, and on that ground the request was refused.

By reply, the plaintiff alleges that he had purchased 50 shares of defendant’s stock on December 11, 1946, which were carried in the name of the broker through whom he had bought them, and that these 50 shares, together with 12 shares thereafter acquired, constituted the 62 shares which were transferred to his name on the defendant’s books on January 10, 1948. The plaintiff denies that his request for an inspection of the defendant’s books was for an unreasonable or improper purpose.

The evidence developed that there was no substantial conflict as to the facts.

The defendant is a corporation organized under the laws of Ohio, engaged in the wholesale drug business, and with customers scattered over Ohio and Indiana. It sells “package” articles only. Its name does not appear on the package' at any place. Its principal place of business is in the city of Cincinnati, Ohio.

The plaintiff resides in the city of Indianapolis, Indiana. He is and had been for 30 years an officer of the Kiefer-Stewart Company of Indianapolis, which is engaged in the wholesale drug business. It (KieferStewart Company) also owns 50 per cent of the stock of Walding-Kinnan-Marvin Company of Toledo, Ohio, which company engages in the wholesale drug business. Those two companies and the defendant are competitors in the wholesale drug business, but the evidence is not very clear as to the extent and keenness of the competition.

It appears from the plaintiff’s testimony, which is uncontradicted, that he did not know whether, or to what extent, the Kiefer-Stewart Company and the Walding-Kinnan-Marvin Company were in competition with the defendant; that he owned 190 shares of the 3000 shares constituting the issued capital stock of the Kiefer-Stewart Company; and that he had been an inactive and intermittent participant in its business for several years, spending most of his time in Arizona. The evidence leaves the impression that he is a retired business man having only a. nominal connection with the business in which he had been active theretofore.

The KiefeKStewart Company had a .“franchise” from Eli-Lilly Company, and in 1946 the defendant was also granted a similar franchise by Eli-Lilly Company. The defendant tried to show that the granting to it of this right to handle the Eli-Lilly Company products increased the competition between the two companies, and that that fact influenced the plaintiff to purchase stock in defendant corporation. The plaintiff denied that that fact caused him to buy. He said the listing of the stock on “the Cincinnati Stock Exchange” was what influenced him. On cross-examination, he testified that “there isn’t one bit of information that I have requested that would be of any interest to Kiefer’s stockholders, directors, or of fleers,” and as to his purpose he saic. he had no pur pose at all in obtaining a list of the shareholders, and that he wanted the list for his ‘ ‘ private information, ’ ’ for his “own private information,” for his “personal use.”

The defendant, through the testimony of its president, emphasized the extent of the competition between it, the Kiefer-Stewart Company, and the Walding-Kinnan-Marvin Company, and endeavored to prove by statements made by officers of the Eh-Lilly Company that when it granted a “franchise” to the defendant a protest was lodged by the Kiefer-Stewart Company, which evidence the court rejected as hearsay, it was stated in argument, without, however, any supporting evidence, that many of defendant’s customers were also shareholders, and that knowledge of the shareholders would enable plaintiff to identify the defendant’s customers.

There is no daim that the inspection sought by the plaintiff would have interfered in any way with the normal conduct of the defendant’s business. Certainly, a shareholder in an Ohio corporation has a prima facie right to seek any information he may desire by such an inspection. Indeed, it would seem that his inspection may be wholly exploratory.

The question presented by this record is whether, under the circumstances disclosed, a court of equity will assist the plaintiff in asserting his right by commanding the defendant to permit such inspection. The defendant claims that the plaintiff’s disclosed purpose is inequitable and that, therefore, an injunction should not be awarded to him.

It would serve no useful purpose to discuss the right to inspection conferred upon a shareholder by the common law. That such a right was conferred is well settled. Cincinnati Volksblatt Co. v. Hoffmeister, 62 Ohio St., 189, 56 N. E., 1033, 48 L. R. A., 732. Nor need we discuss the circumstances under which a court of equity would, and under what circumstances it would not, lend its remedies to enforce tnat common-law right. There were circumstances under which a court of equity would withhold its remedies. American Mortgage Co. v. Rosenbaum, 114 Ohio St., 231, 151 N, E., 122. In Ohio, the right is conferred by statute.

Section 8623-63, General Code, provides:

“The books of account, lists of shareholders, and their addresses, records of the issuance and transfer of shares, voting trust agreements, if any are filed, and the minutes of meetings of every corporation shall be open to the inspection of every shareholder at all reasonable times save and except for unreasonable or improper purposes.”

It will be noted at once that, although this section confers or declares the right of inspection, it also places limitations upon and exceptions to the right. The corporate books are open for inspection by shareholders at “all reasonable times save and except for unreasonable or improper purposes.” There is no claim here that the time of inspection would be unreasonable, but it is claimed that the purpose is unreasonable and improper.

Now what is an unreasonable or improper purpose?

Section 8623-63, General Code, was under consideration in William Coale Development Co. v. Kennedy, 121 Ohio St., 582, 170 N. E., 434. In sustaining the right of inspection, the court referred to the fundamental principle that it was the shareholders who, in the final analysis, owned the property of every kind that is possessed by a corporation, and then at pages 585 and 586 said: “Can anything be plainer than the fact that the owner of property has a clear right to inspect his own property?”

The court then adverted to the fact that the corporation, its officers, and agents are the agents of the shareholders, clothed by them with power to manage their property and then said: “The stockholders elect the board of directors, and when we seek the source of any power exercised by the directors, or any other agent of the corporation, we trace it at once to the stockholders. ’ ’

Following this, the court said:

“The stockholder is not obliged to accept as 100 per cent correct statements prepared by the agents of the corporation. * * * A refusal of permission to inspect at reasonable times may itself justly excite a suspicion of unfaithful or inefficient service on the part of the agent. * * * When the stockholder is asking the right to inspect the corporate books, records, papers, and documents, or the corporate property, such request is attended by a presumption of good faith and honesty of purpose until the contrary is made to appear by-evidence produced by the officers or agents who are seeking to defeat such inspection.”

The right of a shareholder to inspect the corporate books, particularly the list of shareholders, was the issue in the case of Bundy v. Robbins & Myers, 50 Ohio Law Abs., 33, 75 N. E. (2d), 717, decided by the Court of Appeals of the Second Appellate District, and tne right was sustained, notwithstanding the plaintiff desired the list of shareholders to promote his plan for refinancing preferred stock of the corporation from which he might gain some advantage in his business as an investment broker.

Of course, good faith and honesty of purpose must actuate a shareholder in exercising his right to inspect, but a desire to protect and nurture his property and cause it to yield the maximum profit has no taint of bad faith or dishonesty toward anyone. The corporation is organized for profit and that motive is given legal sanction by the law. The sovereign has not hesitated to call it a corporation for profit.

It is true that a shareholder’s property is commingled with that of many others, in this case about 1,000, and, of course, his freedom of action is not as great as that of an absolute owner of the undivided title to property. He owes duties to those who have joined with him in dedicating their property to a common enterprise to accomplish a common purpose, to wit, a profit. These duties are not to use his share of the common property in a capricious, irresponsible, or hostile manner, and, tested and weighed against the background of the purpose of the association, such exercise of his ownership of stock could be justly characterized as an unreasonable or improper purpose within the meaning of Section 8623-63, General Code, particularly in a court to which an appeal is made, as in this case, for equitable relief.

Although it is clear that a request for inspection made for an unreasonable or improper purpose may be denied, the presumption is that the demand is made in good faith and for an honest purpose to protect and nurture property, and for no purpose inimical to the common enterprise. As said in William Coale Development Co. v. Kennedy, supra, at 587, “the burden of proof on this question should not be borne by the stockholder, but should be borne by the agents or officers objecting to the inspection.”

The final question then is whether the defendant has sustained the burden of proving that plaintiff’s demand for an inspection of the list of shareholders is unreasonable or for an improper purpose.

We have set forth the substance of all the evidence having any tendency to disclose the purpose of the plaintiff in seeking an inspection of the list of shareholders and are of the opinion that the defendant has failed to sustain the burden of proving that his demand was for an unreasonable or improper purpose-The plaintiff testified that the information he sought could have no possible benefit to the Kiefer-Stewart Company, and on this record we fail to find any evidence which would lead the court to the conclusion that a competitor could use any of the information and particularly the list of shareholders so as to interfere with the accomplishment of the purpose for which the defendant was organized. The evidence does not prove that the purpose was to use the information in any manner inimical or detrimental tc the accomplishment of the purpose for which the defendant was organized — and that, we believe, is the test by which to determine the reasonableness and propriety of the demand.

For these reasons, the prayer of the petition is granted.

Judgment for plaintiff.

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


author: Wiseman, J.

text:
    Meeker, Appellee, v. Werner, Appellant.
    (No. 4476
    Decided March 5, 1951.)

      Mr. Gollis Gundy Lane and Mr. Richard Hug gar d, for appellee.

      Messrs. Benoy & Sebastian, for appellant.
   Wiseman, J.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Franklin County affirming a judgment of the Municipal Court of Columbus.

The action grew out of an automobile collision which took place between the automobile driven by the plaintiff and the automobile driven by the defendant in the city of Columbus on the 9th day of July 1947.

The plaintiff, appellee herein, Harvey C. Meeker, is a resident of Columbus. The defendant, appellant, Henry W. Werner, was at the time of the automobile collision and at the time of institution of the suit a resident of the city of Newark, Licking county, Ohio.

Upon the action being instituted in the Municipal Court of Columbus, summons was issued to the bailiff of that court and the bailiff mailed the summons to the defendant at his residence in Newark, Ohio. The defendant, reserving his appearance, filed a motion to quash the service of summons and the return thereof. This motion was overruled. The defendant answered, “Not entering, or intending to enter his appearance, and reserving his exceptions to the order of the court, overruling the defendant’s motion for an order setting aside the service of summons,” and for his first defense alleged that “this court has no jurisdiction over the person of the defendant, Henry W. Werner, for the reason that the service was not made in accordance with Section 6308 of the General Code of Ohio and the attempted service is void.” The second defense was on the merits.

The case was tried to the court without the intervention of a jury and judgment was rendered against the defendant in the amount of $725.33.

The defendant claims that the trial court erred in ■overruling his motion to quash the service of summons, and that the trial court did not acquire jurisdiction over the person of the defendant. In support of this contention defendant cites Section 6308, General Code, which provides as follows:

“Actions for injury to a person or property, caused by the negligence of the owner or operator of a motor vehicle, may be brought, by the person injured, against such owner or operator in the county wherein such injury occurs. A summons in such action against any •defendant or defendants shall be issued to the sheriff of any county within this state wherein such defendant or defendants reside and may be served as in other civil actions, notwithstanding any contrary provision of law for the service of summons in civil actions. ’ ’

The summons in this action was not issued to the sheriff of Licking county and defendant contends that the provision of Section 6308, General Code, being mandatory, the court did not acquire jurisdiction over the person of the defendant, and that as a consequence the attempted service of summons and judgment were void.

The ease of Klein v. Lust, 110 Ohio St., 197, 143 N. E., 527, is cited in support of the contention of the defendant. In that case the court, on page 204, said:

“The Legislature having the power to provide for the issuance and service of summons, and the provisions of Section 6308 being clear and definite, it was only necessary in order to obtain jurisdiction over the person of the defendant in this case for the justice of the peace to issue a summons addressed to the sheriff of Franklin county to be served and returned by him. The summons was in fact directed to the bailiff of the Municipal Court of the city of Columbus. The summons was therefore defective, and if a motion had been filed to set aside the service, and the question properly saved, the justice of the peace would have been without jurisdiction over the person of the defendant. In serving process the provisions of the statute should be substantially followed.”

The plaintiff in the instant case contends that the provisions of the Columbus Municipal Court Act permit service to be issued to the bailiff of that court and served by mail on a defendant residing in another county. The substance of the provisions of Section 6308, General Code, is found in Section 1558-51, General Code, which is the jurisdictional section applicable to the Municipal Court of Columbus. Paragraph 9 of the latter section provides as follows:

“Actions for injury to a person or damage to property, caused by the negligence or wilful or wanton misconduct of the owner or operator of a motor vehicle, may be brought by the person injured, or owner of the property damaged, against such owner or operator when such injury or damage occurs within the city of Columbus, and when the amount claimed by the plaintiff does not exceed fifteen hundred dollars. In such cases judgment may be rendered for over fifteen hundred dollars when the excess over fifteen hundred dollars shall consist of interest or damages or costs accrued after the commencement of the action. A summons in such actions against any defendants shall be issued as hereinafter provided by this act■ or shall be issued to the sheriff of any county ivithin this state, wherein such defendant or defendants reside and be served as in other civil actions, notwithstanding any contrary provisions of law for the service of summons in civil actions. In any such actions summons or other process may also be served as provided by Sections 6308-1 to 6308-5, inclusive, of the General Code.” (Emphasis ours.)

This section provides that summons shall be issued “as hereinafter provided by this act” or “shall be issued to the sheriff of any county within this state wherein such defendant or defendants reside.” It is contended by the plaintiff that if there is any inconsistency between Section 1558-51, General Code, and Section 6308, General Code, the provision in the Columbus Municipal Court Act controls inasmuch as it is a later legislative enactment. We find no inconsistency existing between the two sections. The provision of Section 1558-51, General Code, for the issuing of service to the sheriff of any county within the state wherein such defendant resides conforms and is consistent with the provisions of Section 6308, General Code. Section 1558-51, General Code, does provide that ‘ ‘ a summons in such actions against any defendants shall be issued as hereinafter provided by this act.” We must then examine the Columbus Municipal Court Act to determine whether other provisions are contained therein for issuing of service to the bailiff of the Municipal Court of Columbus in such an action where the defendant resides in another county. Section 1558-53, General Code, is cited by the defendant in support of his contention that service must be issued in such actions to the sheriff of the county where a defendant resides. This section reads as follows:

“In any action or proceeding of which the Municipal Court has jurisdiction of the subject matter, when the defendant or some one of the defendants, resides or is served with summons in the city of Columbus, the Municipal Court shall have jurisdiction, and summons, orders of interpleader and all other writs and mesne and final process, including executions, necessary or proper for the complete adjudication of the issues and determination of the action may be issued to the sheriff of any county against one or more of the parties.”

This section is not limited in its application to the type of action which we have under consideration Here, although if its provisions are applied to this type of action it would require the service of summons to be issued to the sheriff of Licking county. The plaintiff places reliance upon the provisions of Section 1558-59, General Code, the first paragraph of which reads as follows:

“Civil actions and proceedings in the Municipal Court shall be commenced by filing a petition upon which summons or writ shall be issued by the clerk. The form of summons or writ shall be prescribed by rule of court, except as hereinafter otherwise provided.”

Paragraph four of the same section provides:

“The laws relating to practice and procedure in actions before the Common Pleas Court defining the rights and obligations of parties and prescribing the powers and duties of officers thereof, shall apply to like proceedings in the Municipal Court in so far as consistent with the provisions of this act and with other laws relating to said Municipal Court.”

The plaintiff also points out the following provisions in Section 1558-83, General Code:

“They [bailiffs] shall be governed by all laws pertaining to sheriffs and deputies, and shall serve all process of said court in the manner provided by Sections 1558-46 to 1558-93, both inclusive, of the General Code and the laws relating to sheriffs and the rules of the court.”

We believe it is well to point out here that a distinction must be drawn between the provisions controlling the issuing of service and the provisions applicable to the manner in which summons shall be served and returned. The question for determination here is: To whom must service be issued by the clerk ■of the Municipal Court in this type of action.

Reference is made in several sections of the Columbus Municipal Court Act to rules of court. Ruie 12 of the Columbus Municipal Court provides for service by first-class mail, pursuant to the provisions of Section 11297-1, General Code. However, service by mail is not proper in this type of action if the applicable statutory requirements provide for service to be issued to the sheriff of the county where the defendant resides. Rule 10 of the Columbus Municipal Court provides that service “shall be directed to the bailiff of this court, or the sheriff of the proper county,” etc. Here again we find rule 10 not inconsistent but conforming to the provisions of Section 6308, General Code.

We fail to find any provision in the Columbus Municipal Court Act which specifically provides that summons in this type of action may be issued to the bailiff of that court when the defendant resides in another county. We definitely hold that summons should have been issued to the sheriff of Licking county where the defendant resided.

The trial court committed prejudicial error in overruling defendant’s motion to quash the service of summons. The court did not acquire jurisdiction over the person of the defendant and, therefore, the judgment rendered is void and of no effect.

We find no merit in other errors assigned to the effect that evidence was improperly admitted; that the amount of damages awarded are excessive and not supported by the evidence; and that the judgment is not sustained by sufficient evidence and is contrary to the manifest weight of the evidence.

We do find the judgment of the trial court to be contrary to law as it relates to the question of defective service.

For error prejudicial to the rights of the defendant, the judgment is reversed and the cause remanded for further proceedings according to law.

Judgment reversed.

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


author: Phillips, P. J.

text:
    Meyer et al., Appellees, v. Reed, Appellant.
    (No. 182
    Decided March 23, 1950.)

      Messrs. Loomis, Caris & Jones, for appellees.

      Messrs. Slabaugh, Guinther & Pflueger, for appellant.
   Phillips, P. J.

In this opinion plaintiffs-appellees will be called plaintiffs, and defendant-appellant will be called defendant.

Glenn H. Reed, deceased, during his lifetime owned and developed University Heights Allotment situated in Kent, Portage county, Ohio. Before selling any lots situated in such allotment to others he deeded the entire allotment to Florence DeCapito, subject to all restrictions contained therein. The deed evidencing that conveyance was duly recorded in the deed records of Portage county. Subsequently Florence DeCapito re-conveyed all such lots to Glenn Reed, “subject to all the covenants, restrictions and agreements set forth in a deed from Glenn H. Reed to Florence DeCapito, and recorded in instrument 27270, Portage county records; and which covenants, restrictions and agreements are made a part hereof by reference, as though the same were fully set forth.”

All subsequent deeds to lots in University Heights Allotment provided, inter alia, that “invalidation of any one of these covenants by judgment or court order shall in no wise affect any of the other provisions which shall remain in full force and effect”; and contained the following reservation and restriction:

“A right and easement is herewith reserved perpetually over the rear ten (10) feet of each lot or block and over ten (10) feet of each side of each lot and block for storm and sanitary sewer, water lines and utility installation and maintenance, it being understood that such ten (10) foot reservation is made as to three sides of each lot and block in said allotment either as now constituted or as subsequently resubdivided.

“No building or any part thereof shall be erected on any residential or business building plot nearer to the front, side or rear lot lines than as shown on the recorded plat of said allotment, except that where no such building line is shown on said plat then no building or any part thereof shall be erected nearer to the front lot line than 40 feet, nearer to a side lot line, as platted or owned, than ten (10) feet or nearer to a rear lot line than ten (10) feet.”

All lots in such allotment, including lots 3 and 4 in block D, were restricted and set aside as “residential lots,” except those specifically excepted in paragraph (b) which provides:

“Subject to the zoning ordinances of the city of Kent, blocks A and B are restricted to commercial use and for retail merchandising, and/or apartment houses and the following lots hereinafter described may be used for single-family dwelling, two-familv dwelling, four-family dwelling or apartment house: Lots 1-2-3-4 in block D, lots 1-2-3-4-5 in block E, lots 1-2-3-4 in block F, lots 1-2 in block G.”

Defendant, the widow and heir of Glenn H. Reed and the owner of many unsold lots in University Heights Allotment, sold adjoining lots 3 and 4, situated in residential block D of such allotment, to plaintiffs, through a broker, for construction of an “apartment house.”

That sale was made subject to all “restrictions and reservations of such allotment,” among which are that the lots “may be used for a single-family dwelling, two-family dwelling, four-family dwelling or apartment house”; and “that no building, or any part thereof, shall be erected” on such lots until “the design and location thereof have been approved in writing by Glenn H. Reed, his heirs, and assigns, or by a committee appointed by Glenn H. Reed, his heirs and assigns, ’ ’ except that in event of failure to so approve or disapprove such design and location within 60 days after submission by the builder then such approval shall not be required.

Plaintiffs prepared and submitted to defendant for her approval' in writing plans for a building to house 11 families,- which they proposed to construct in the middle of their lots and nearer than ten feet to the side boundary lines of such lots. Twice defendant refused to approve such plans, which refusal we construe as a disapproval.

Plaintiffs commenced an action in the Court of Common Pleas in which they sought a mandatory injunction compelling defendant to approve in writing their submitted plans.

By cross-petition defendant sought the construction of certain restrictions in plaintiffs’ deed and a judgment declaring the restrictions valid.

The trial judge denied the prayer of plaintiffs’ petition for mandatory injunction compelling defendant to approve plaintiffs’ plans in writing; held that no written approval of such plans was necessary; and in construing some of the restrictions contained in plaintiffs’ deed held that such restrictions would not forbid the construction of the building contemplated by plaintiffs, and entered judgment accordingly.

Defendant appealed to this court on questions of law and fact, and in the trial court moved for an order fixing bond on such appeal. The bond, which the trial judge fixed at $20,000, was not furnished.

Plaintiffs’ motion to dismiss defendant’s appeal on the ground that no bond had been furnished was sustained from the bench. The words, “and fact,” were stricken from defendant’s notice of appeal, and the appeal was retained as one on questions of law.

Plaintiffs’ motion to dismiss defendant’s appeal on questions of law on the ground that defendant had not filed a bill of exceptions or assignments of error within time was overruled. It appearing that a bill of exceptions was filed, the appeal was argued, submitted, and is determined as an appeal on questions of law.

By her sole assignment of error defendant contends that the judgment of the trial court is contrary to law, and urges that the ‘ ‘ extraordinary remedy of mandatory injunction” is not “available to a lot owner to compel an allotment proprietor to approve plans in writing”; that the lot owner has an adequate remedy at law “to determine whether the structure which he plans to erect can be completed by him”; that plaintiffs, who accepted “a conveyance of their lots subject to a reservation of an easement,” can not “require the owner of the easement to approve, in writing, plans.for a structure which, if erected on the lot, will destroy, the easement”; and that plaintiffs may not “construct such building without approval. ” The questions raised by such assignments of error are' the only ones which will be disposed of in this opinion.

While variations of the language used in the deed from Florence DeCapito to Glenn H. Reed, quoted supra, were used in- subsequent deeds, generally and with the exception of 3 out of a total of 69 deeds to lots in the allotment, such deeds were delivered ‘ ‘ subject to all the restrictions and reservations of such allotment” and “in conformity with a-general plan,” which imposed burdens upon plaintiffs -which- they must carry.

Some owners have acquired parts of lots adjacent to lots owned by them in such allotment. With the exception of a two-family dwelling or apartment, situated above a funeral home, in block A of such allotment, only single-family dwellings have been constructed in such allotment. One owner has constucted-his house closer than ten feet to one of the boundary lines thereof, and four owners have -constructed houses across lot lines where they owned, ad joining lots. There is no evidence whether these buildings were erected with or without the approval in writing of defendant, or by and with the consent-of other owners of lots in University Heights Allotment. ■

This action we review was not one seeking to enjoin plaintiffs from proceeding with the construction of their building, but an action in which plaintiffs sought the extraordinary remedy of mandatory injunction to require defendant to approve, in writing, the design and location of their building prior to commencement of construction thereof. We conclude that a mandatory injunction was not available to them, as they had an adequate remedy at law to determine whether the building they proposed to erect could be built upon their lots and comply with the restrictions thereof.

Plaintiffs contend that defendant is “estopped to assert the validity of the restrictions” as to lot lines in her allotment because she violated, or permitted other owners of lots in University Heights Allotment to violate, the restrictions of the deeds to lots situated therein with reference to boundary lines thereof. In the absence of evidence of the conditions surrounding the erection of the buildings being discussed, and the alleged violation of the restrictions of the lots on which they were erected, we can not concur in this contention, nor do we believe that the language of the restrictions is ambiguous.

We have studied and carefully considered the ingenious arguments of counsel for the respective parties concerning the easement to which reference has been made, and conclude that such easement still exists; that the erection of the cdntemplated structure would encroach upon the easement and violate it as well as the restrictions of the allotment; that no approval for the erection thereof was given in writing at any time, as required by the restrictions of the allotment ; and that under these conditions the contemplated 11-family house can not be erected.

We conclude that the trial judge did not err to plaintiffs’ prejudice in declaring that all the restrictions set out in the various lettered paragraphs of the master deed were applicable to plaintiffs’ lots, nor in denying the prayer of plaintiffs’ petition for a mandatory injunction compelling defendant to approve in writing plaintiffs’plans.

However, we conclude the trial judge did err to defendant ’s prejudice in holding that the line restrictions appearing in plaintiffs’ deed did not apply to them since they owned two adjoining lots; that the approval provision of plaintiffs’ deed was not applicable to them, and no written approval of such plans was necessary; that they did not need defendant’s approval to construct their contemplated apartment; that such restrictions did not forbid its construction; and that their lots were not subject to the easement to which reference has been made.

The judgment of the trial court is affirmed in part and reversed in part as indicated herein.

Judgment accordingly.

Nichols and Griffith, JJ., concur.


author: Per Curiam.

text:
    Weber v. Alvis, Warden, et al.

      (No. 4486
    Decided January 19, 1951.)

      Mr. Arthur J. Weber, in propria persona.

      Mr. Herbert 8. Huffy, attorney general, Mr. Alan E. Schwarzwalder, and Mr. Frank J. Battisti, for respondents.
   Per Curiam.

This is an action in habeas corpus, originating in this court, in which the petitioner, a prisoner in the Ohio penitentiary, seeks the writ on , the ground of a void sentence.

Petitioner was committed to the Ohio penitentiary from Cuyahoga county to serve a term of from one to seven years for grand larceny. Sentence began on September 22, 1934, and the maximum sentence would have expired on September 21,1941. On April 4, 1936, the petitioner was paroled. On June 14, 1936, he was declared a parole violator. Subsequently he was indicted, tried, and convicted of rape. On the rape charge the sentence was general, with this statement added: “Sentence in this case is to begin after said defendant has served all time due on previous paroles.” This sentence was pronounced on September 17, 1936. On September 22, 1936, petitioner was returned to the Ohio penitentiary as a parole violator under the first sentence. The parole board ruled that petitioner’s maximum sentence on the first charge would not expire until December 29, 1941, on which date petitioner started serving the sentence on the rape charge.

The petitioner contends that the first sentence expired September 22, 1941, rather than on December 29,1941. Petitioner relies on'Section 2209-20, General Code, which in part provides:

“In the case of an escaped prisoner, or a convict, prisoner or other person who has been declared a violator, the time from the date of his escape or of the declared violation of his pardon or parole to the date of his arrest or return shall not be counted as a part of the time or sentence served.” (Emphasis ours.)

This section has no application since it did not. become effective until May 3, 1939, almost three years after the petitioner was declared a parole violator. The controlling statute applicable to the facts in this case, and in effect in' 1936, was Section 2211-9, General Code (114 Ohio Laws, 589), which in part provided as follows:

“In the case of an escaped prisoner or a prisoner who has been declared a violator, the time from the date of his escape or of his declared violation of parole or pardon to the date of his return shall not be counted as a part of time or sentence served.” (Emphasis ours.)

It will be noted that the date of the arrest of the prisoner was not mentioned in Section 2211-9, General Code. The period of time was calculated from the date the petitioner was declared a parole violator until the date of his return. Under this calculation the sentence of the petitioner would be extended three months and five days. The sentence, therefore, on the first offense would have expired on December 26,1941, rather than on December 29. 1941.

One sentence may commence upon the termination of a former sentence. Anderson, Sheriff, v. Brown, 117 Ohio St., 393, 159 N. E., 372; Williams v. State, 18 Ohio St., 46; Hart v. State, 42 Ohio App., 501, 507, 182 N. E., 534; Hoop v. State, 26 Ohio Law Abs., 598; and State, ex rel. Harley, v. Alvis, Warden, 57 Ohio Law Abs., 1, 93 N. E. (2d), 410.

Early decisions in Ohio, rendered when the statute required the court to fix the duration of the term and before the enactment of Section 2166, General Code, requiring sentences to be general, are neither helpful nor controlling in the determination of the issues here presented.

Assuming, without deciding, that there was a defect in the sentence, either with respect to the time the sentence began on the second offense, or in failure to specifically describe the case on which the first sentence was imposed, as petitioner contends, this defect would at most be an irregularity and would not render the sentence void. A defect in the sentence is not jurisdictional. Where there is a defect in a sentence of a court of competent jurisdiction, habeas corpus does not lie to review it; the proper remedy is by appeal in the original action. State, ex rel. Conners, v. DeMuth, Supt. of Toledo Workhouse, 96 Ohio St., 519, 118 N. E., 98; In re Allen, 91 Ohio St., 315, 325, 110 N. E., 535; Ex parte Van Hagan, 25 Ohio St., 426; Ex parte Shaw, 7 Ohio St., 81, 70 Am. Dec., 55; State, ex rel. Dye, v. Alvis, Warden, 86 Ohio App., 137, 90 N. E. (2d), 416; 20 Ohio Jurisprudence, 425, 445, Sections 6, 23.

Petitioner remanded to custody.

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


author: Lieghley, J.

text:
    The Cleveland Railway Co. v. Hoynes.

      Error — Rejection of evidence not prejudicial, when — Refusal to admit statement — Signed after accident — Not reversible error, when.

    1. A judgment should not be reversed for the rejection of evidence on the ground that the same constitutes prejudicial error unless there is some reason to think that its admission would have or might have resulted in a different verdict.
    2. Where shortly after an accident the injured signed a statement containing details of the accident and at the trial gave testimony which contradicted in some particulars the written statement, the action of the court in refusing to admit the statement in evidence while erroneous did not constitute reversible error, where the contents of such written statement were incorporated piecemeal in questions propounded to plaintiff and other witnesses, and were thus read before the jury.
    (Decided April 1, 1918.)
    Error : Court of Appeals for Cuyahoga county.

      Messrs. Squire, Sanders & Dempsey and Mr. W. C. Boyle, for plaintiff in error.

      Mr. Wm. M. Byrnes, for defendant in error.
   Lieghley, J.

The panties stood in reverse order in the court' below and for convenience will be mentioned herein as they there stood.

Plaintiff, Frances H. Hoynes, filed her petition in the common pleas court praying for damages for injuries which she sustained while a passenger on a street car of the defendant company. The same proceeded to trial with the intervention of a jury and resulted in a verdict .and judgment for plaintiff, from which judgment error is prosecuted to this court to reverse the same.

The error assigned and relied upon by the defendant to obtain a reversal of this judgment is the rejection of evidence offered by the defendant. The plaintiff offered herself and a witness, Mrs. Smith, and others, to sustain her claims. Both plaintiff and Mrs. Smith testified orally at the trial below. It is claimed by the defendant that both made written statements a few days after the date of the injuries sustained by plaintiff. It is claimed1 that each statement contains contradictions of the testimony given by each at the trial. The alleged contradictions relate principally to the location and the size and kind of a seat upon which the plaintiff was seated, and from which she fell and injured herself by reason of the careless -and negligent handling of said street car by the employes of the defendant company.

Mrs. Smith gave her testimony in chief, and on cross-examination was confronted with a written Statement claimed to have been prepared by one Williams, an investigator for the company, and signed by her a few days after the accident. She claimed not to remember having signed if. The contents of the paper writing were then incorporated piecemeal in questions by the cross-examiner t'o the witness, and inquiry made of her whether she did not- so state to the investigator. The contents of the paper writing were thus read in .the presence of the jury. The paper had not yet been" identified, but 'was offered and rejected. The investigator, Williams, was called by the defense after the plaintiff had rested, who testified that the paper writing correctly recited the statements of this witness made to him at the time, and that it was signed by her in his presence. It was again offered and rejected. Again, the entire contents of this paper writing were recited in' questions to this. witness, and inquiry made whether Mrs. Smith had so stated to him at the time of his investigation, to which questions the witness answered in all instances in the affirmative. Thus the contents of this paper were again recited in the presence of the jury.

The plaintiff took the stand in 'her' own behalf and was examined in chief and cross-examined by the defendant. On rebuttal she was recalled for further cross-examination by the defendant, and inquiry made of her in reference to a certain written statement claimed by the defendant to have been made by her a few -days after the' accident. She was confronted with the written statement and asked whether she signed it, and her position was such that, identification thereof became necessary to make it competent in proof. The entire contents of the written paper were then incorporated in various questions by the cross-examiner, and the plaintiff was asked whether she had made those statements to the investigator, some of which she answered in the affirmative and some in the negative. The contents of this paper 'were thus read before the jury and in its presence. In surrebuttal one Peltrash, an investigator for the 'company, was called hy the defendant, who testified that he prepared the written statement for the plaintiff and ■that the same contained a true recital of her statement's to him and that she signed the same. This written statement of the plaintiff was offered and rejected by the trial court.

These written statements do contain some matters contradictory and inconsistent with statements made by the witnesses at the trial. As stated, the contradictions relate to the location of the seat which the plaintiff occupied at the time of the accident, and its size and bind and direction with reference to the length of the car. Assuming that the statements were properly and sufficiently identified as olaithed by the defendant, the same should have been admitted.

Was their exclusion prejudicial error? It is claimed in the briefs that the contradictions relate only to the location of the seat occupied by the plaintiff and her manner of occupying the same. The jury had before it the statements of these witnesses made in chief. It also had before it the contents of the written papers by incorporation in questions by the cross-examiner, and What the witness had to say about those written statements. It thereby had before it the alleged contradictions and inconsistencies. It did not have 'before it, and as exhibits to be taken with it to the jury room, the written statements themselves.

In this respect the facts of this case present a very much different situation than is presented in a number of Ohio authorities bearing upon this subject. In these authorities the jury was not acquainted with the contents of the paper writings or the character of the proof excluded'. Shriedley v. State, 23 Ohio St., 130, and Dilcher v. State, 39 Ohio St., 130.

We think the greater weight of the authority is to the effect that a judgment should not be reversed for the rejection of evidence on the ground that the same constitutes prejudicial error unless there is some reason to think that its admission would have or might have resulted in a different verdict. In view of the subject-matter of the alleged contradictions and inconsistencies in the testimony of the plaintiff and Mrs. Smith given at the trial and their written statements made a few days after the accident, and in view of the further fact that the contents of these statements were before the jury one or more times by reason of the manner of the cross-examination, and .that the jury had before it the conduct of these -witnesses in respect to these statement's and what they had to say about them, we are unable to conjure up any hypothesis upon which it may be said the jury might have arrived at a different verdict if those written statements had been admitted and the jurors had had an opportunity to actually -examine their contents. We do not think that err'or has intervened in the trial of this case prejudicial to the rights of the defendant. Jones on Evidence, • Section 896.

•The judgment of the court below is affirmed.

Judgment affirmed.

Grant and Dunlap, JJ., concur.


author: Jones, Oliver B., J.

text:
    Norfolk & Western Railway Co. v. Cramer, Admx., et al.

      Contributory negligence — Railroad employe — Failure to look and listen — When alighting from engine — After .warning of approaching train.

    An employe of one railroad, who is familiar with the tracks and passage of other trains and who steps off the running board of an engine upon which he is riding, immediately in front of an approaching train, of another road on an adjoining track, without first looking to see whether he is safe in so doing, and after a warning of the approaching train has been given by both the . engineer of the engine’ upon which he was riding and of the other train, is guilty of contributory negligence.
    (Decided January 29, 1917.)
    Error : Court of Appeals for Hamilton county.

      Messrs. Hollister & Hollister, for plaintiff in error.

      Mr. Fred J. Oeltmann; Messrs. Littleford, James, Ballard & Frost and Messrs. Maxwell '& Ramsey, for defendants in' error;
   Jones, Oliver B., J.

The defendant in error Louise Cramer, .administratrix, as plaintiff below, recovered a verdict and judgment against the plaintiff in error, which was one of the defendants in the case below. The action was for the benefit of the next of kin of Robert F. Cramer because of an accident which, resulted in his death.

Robert F. C-ramer was in the employ of The Pittsburgh, Cincinnati,. Chicago & St. Louis Railway Company, and had been in such employ for at least six years. On the particular morning of the accident he was engaged in switching and making up a train of freight cars west of Beechmont avenue. In that locality the railroad has four main tracks, the two outside being for passenger trains and the two middle tracks being for freight trains. The Norfolk & Western Railway Company had a trackage agreement vyith The P., C, C. & St. L. Ry. Company under which it had the use of the tracks of the latter road. The two south tracks 'carried east-bound trains and the two north tracks carried west-bound trains. To the west of the switch near which "Cramer met his death the south -tracks curve outwardly in such a way as to admit of a number of spur tracks, which were used for separating freight cars and making up freight trains. The time of the accident was in the neighborhood of nine o’clock on the morning of December 11, 1913, a bright, cold day.

Plaintiff’s intestate was engaged, with' others of his crew, in making up a freight train, and the engine, just before the accident, having shunted some cars upon the west-bound freight track, was by him switched over on to the east-bound freight track to go forward and pass around such' cars and be switched back upon the west-bound freight track. After throwing the west switch Cramer stepped upon the running board or step in front of the pilot of the engine with which he was working, for the purpose of riding up on it to throw the east switch in order to enable that engine to pass over to the west-bound freight track. He stood upon this step or running board until the engine was about at the location of the switch, looking forward to the northwest across the track. While his engine was so proceeding the Norfolk & Western mail train came along the east-bound passenger track on its regular run, at a speed much greater than that of the engine -on which Cramer was riding. This speed has been estimated by different witnesses at from twenty to fifty miles per hour, the engineer and conductor on the passenger train fixing it from twenty-five to thirty miles an hour. Just as the freight engine reached the eastern switch, Cramer, without looking backward, stepped off the engine upon which he had been riding, and was immediately struck by the pilot of the passenger engine on the track alongside and was thrown in the space between the two tracks and picked up dead.

The allegation of negligence in plaintiff’s petition is stated in the following terms:

“The defendant, the Norfolk & Western Railway Company through its agents and servants failed to sound a bell, whistle or warning, as it rounded the curve and approached decedent, and the fireman on said engine failed to keep a proper lookout at all at this particular point and time, and left his post and failed to ring his bell or give warning or signal of the approach of his train, although the engineer, on account of the length of the engine, could not see the point near the track where decedent was; that said train was late and was proceeding at a high and dangerous rate of speed, towit, 'forty miles an hour, and could not be stopped until it 'had gone eight hundred feet beyond the point where decedent was struck.”

The defendant Norfolk & Western Railway Company in its amended answer states its defense and allegations of negligence against the plaintiff’s decedent in the following language:'

“That plaintiff’s decedent placed himself in a dangerous position by alighting from an'engine of the defendant, The Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company upon or so near the track upon which the defendant Norfolk & Western Railway Company was operating its train as to be struck by the same, and before thus placing himself in a dangerous position he failed to look and listen to ascertain if a train of the said defendant Norfolk & Western Railway Company were approaching; that before alighting from said engine, he did not heed the danger signals warning him of the approach of a train of said defendant Norfolk & Western Railway Company, which signals were given by the blowing of the engine whistle by the engineer of the defendant, The Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company, upon which engine decedent was riding; that the decedent alighted from the said engine next to the track upon which the train of the said defendant Norfolk & Western Railway Company was approaching, when, in the reasonable and proper performance of his duties, he should and could have alighted from the other side of said engine; that decedent failed to heed the warning of the -bell which was being rung by the fireman of the engine of the said defendant Norfolk & Western Railway Company.”

The evidence shows that as Cramer leaned out preparing to step off, the engineer of the freight engine noticing the approach of the passenger train gave what is known as a danger signal with his whistle, 'being a succession of -short sharp blasts, for the purpose of warning Cramer of his danger, but that Cramer apparently paid no attention to the warning, and did not look around or realize the approach of the passenger train. This passenger train ran -daily along that track, at the same hour every morning, and on this occasion it was a few minutes late. The deceased had worked in that locality for some little time and was undoubtedly familiar with these facts.

While one of the allegations of negligence of the ' defendant company was that the fireman failed to keep a proper lookout, the evidence shows that he had not been negligent in that respect, and had kept a continuous lookout, except when, the engineer having shut off the steam from the passenger engine because of a green light shown at a signal station just before they reached the point of the accident, his duty required him -to reach down and open the fire door and a blower valve in order to kill the smoke of the engine, which required but a few seconds.

The testimony also shows that the engineer of the passenger train gave the usual crossing whistle for Beechmont avenue at the regular point some little distance west of the accident, and that the bell of his engine was constantly 'ringing up to the time of the accident. There were witnesses, 'however, who testified that they did not .remember whether or not the bell was rung, and that they had not heard it.

It is not necessary to determine whether or not a case of negligence was made out against the defendant; because the evidence clearly shows that plaintiff’s intestate was guilty of negligence in stepping from the running board as he did immediately in front of the approaching passenger .train without first looking to see whether he was safe in so doing. A proper course, which could easily have been pursued by him, was to have moved across the running board of his engine and to have stepped off from its left side, upon the freight track, where there could have been no possibility of being struck, and where he would have been nearer to the switch he was about to throw.

The trial court, in its opinion overruling motion for a new trial, after discussing the evidence as to the negligence of plaintiff’s intestate, arrived at this conclusion:

“It seems to the court that there can be but one inference from these circumstances, namely, that the deceased was guilty of a want of ordinary care — negligence—in alighting as he did from his engine.”

But notwithstanding this conclusion of the trial court he ■ sustained the verdict in favor of the plaintiff, and entered judgment thereon under what is known as the doctrine of “last chance,” as laid down in the cases of Railroad Co. v. Kassen, 49 Ohio St., 230, and L. S. & M. S. Rd. Co. v. Schade, Admr., 15 C. C., 424, and in 2 Thompson on Negligence, Section 1629, as quoted in Drown v. Northern Ohio Traction Co., 76 Ohio. St., 234, at page 247.

We think that the court below was in error in resting its decision upon this doctrine of last chance, in which he felt sustained by the cases of Steubenville & Wheeling Traction Co. v. Brandon, 87 Ohio St., 187; West, Recr., v. Gillette, 22 C. C., N. S., 369, and Greve v. Cincinnati Traction Co., 2 Ohio App., 486. These three cases related to street traffic, and did not involve the doctrine of last' chance, and can not control the case at bar.

It was conceded by all of the witnesses that after plaintiff’s intestate had left the place of safety on the running board of his own engine, and put himself in a place of danger in front of the approaching passenger engine, it was impossible for the engineer or brakeman on the passenger train to have done anything to avoid the injury. The engine already had the steam off for 'the purpose of slowing up to be under control for the block signal which they expected at Rendcomb Junction, and yet was running-at such a rate that it' was impossible to stop or in any way signal Cramer to prevent the accident. He had received the signal from his own engine whistle and had failed to observe it. There can be no question but that his own negligence caused his unfortunate death. Wabash Rd. Co. v. Skiles, 64 Ohio St., 458, and Bejac v. C., P. & E. Ry. Co., 23 C. C., N. S., 475, are cases which involve the same principle of law.

The verdict of the jury is clearly against the manifest weight of the evidence, and the motion for a new trial should have been granted by the court below.

Judgment reversed and the cause remanded for a new trial.

Judgment reversed, and cause remanded.

Jones, E. H., P. J., and Gorman, J., concur.


author: Hamilton, J.

text:
    Heidotting, Exr., v. Heidotting.

      Contracts —Compensation for services — Daughter-in-law to father-in-law— Degree -and sufficiency of proof to establish express contract.

    1. A daughter-in-law can not recover compensation for services rendered to her father-in-law while residing in his home with her family, in the absence of an express contract established by clear and .convincing proof.
    2. In such case expressions of gratitude by the father-in-law towards his daughter-in-law for her care and kindness, and some expressions of an intention to remember her in his will, are not sufficient proof of an express contract to pay for the services.
    (Decided February 26, 1917.)
    Error: Court of Appeals for Hamilton county.

      Messrs. Moulinier, Bettman & Hunt, for plaintiff in error.

      Mr. Geo. H. Kattenhorn, for, defendant in error.
   Hamilton, J.

The plaintiff below, Charlotte Heidotting, recovered a judgment against the plaintiff in error on a claim for personal services rendered Johan Albert Heidotting during the’ last years of his life.

The suit was brought against the executor of the estate of Johan Albert Heidotting, the said plaintiff declaring upon a contract both express and implied, and no election as to the kind of contract was requested or required.

The plaintiff below, the defendant in error herein, was the wife of said executor, defendant below, who was the son of Johan Albert Heidotting.

For about two and one-half years prior to his death the said Johan Albert Heidotting was in failing health and afflicted with a cancer of the face; He was the owner of the residence wherein he resided, and upon the death of his wife he desired one of his sons, of whom there were two, with his family, to move in with him. One son, Joseph Heidotting, refused to move in with his father unless his father would first deed to him the said residence property. This the father did not do.- Thereupon the son Henry Heidotting, and his wife, the plaintiff below, and their children, then moved in with the father and lived in his residence until his death two and a half years, later, during which time the plaintiff below rendered services of the character alleged in her petition. The said father occupied a room on-the'second floor of- his residence, staying therein a part of the time, and receiving his meals there a part of the time, delivered to him by his daughter-in-law, and a part of the time taking his meals with the family. No restrictions were placed by either party upon the use of the whole or any part of the premises ‘by either the father or the son Henry and his family. No rent' was charged Henry by his father, and no board was charged his father by Henry. The father devised the said residence property to his ' said son Henry, who is now in possession of said premises.

The question is: -Did the ■ family relation exist between these parties? The evidence discloses that,the family relation existed, and brings the- case clearly within the rule laid down in the case of Hinkle et al., Exrs., v. Sage, 67 Ohio St., 256, and as modified in Merrick v. Ditzler, 91 Ohio St., 256, requiring “clear and convincing” .proof of an express contract.

It therefore follows that to- enable the plaintiff to recover she must produce evidence to show a contract by “clear and convincing” proof. This we think the evidence fails to do. The only evidence, tending to show a contract is contained in expressions on the part of the father of gratitude towards his daughter-in-law for her care and kindness to him, and some expressions of an.intention to remember her in his will. This falls far short of being clear and convincing proof of an express contract to pay for the services as claimed.

The judgment of the common pleas court is reversed and the case remanded for a néw trial.

Judgment reversed, and cause remanded.

Jones, P. J., and Gorman, J., concur.


author: Richards, J.

text:
    Moon et al. v. Conley.

      Negligence — Hotel and bar — Care required toward patron — Liability — Assault and battery — By another patron or by employe.

    The proprietors of a hotel, and bar operated in connection therewith, owe to a patron the duty to exercise ordinary care to protect him from an assault and battery by another patron or by an employe, and are liable for the damages resulting from the assault and battery, if, by the exercise of ordinary care, they could have prevented the same.
    (Decided January 21, 1918.)
    Error: Court of Appeals for Lucas county.

      Mr. P. J. Phelan, for plaintiffs in error.

      Mr. M. D. Merrick, for defendant in error.
   Richards, J.

The plaintiffs in error, Harry H. Moon and Charles W. Boisoneau, were partners operating a hotel, and 'bar in connection therewith, on Huron street in the city of Toledo. One of their employes was a man named Charles Brown. The original action, out of which this proceeding in error grows, was brought in the court of common pleas by Ernest O. Conley for the purpose of recovering damages for'an assault and battery claimed to have been ” committed on him by Charles Brown, while an employe of Moon and Boisoneau, and in their place of business. The trial resulted in a verdict and judgment in favor of Conley against the defendants Moon and Boisoneau in the sum of two hundred ($200.00) dollars. The plaintiff claimed that he was a guest and patron of the hotel and bar, that the assault and battery was committed by Brown while a servant of the other defendants, and that this took place in the presence of the defendant Moon. The episode occurred on November 24, 1916, in the bar-room attached to the hotel operated by the defendants Moon and Boisoneau. Conley and Brown had been playing a game of cards, known as “rum.” After playing one game peaceably a quarrel arose between them, and in that quarrel Conley was struck in or near the eye, and seriously injured. 'He contends that the defendants Moon and Boisoneau violated their duty to exercise ordinary care for his protection as a guest and patron in their place of business. The testimony, as is usual in cases of this character, is directly in conflict.

An examination of the charge to the jury discloses no error to the prejudice of the defendants below. In the course of the charge to the jury, the trial judge used the following language:

“Now, gentlemen, consider the evidence in the case, and if you find from the evidence that Brown assaulted Conley, that is, wrongfully struck him, ' and did this in the presence of the defendant Moon in the bar of the hotel, and the defendant Moon by the exercise of reasonable precautions upon his part could have prevented the alleged assault and injury, and did not do so, the plaintiff, Conley, is entitled to recover the damage he suffered thereby.”

This, we think, is a fair statement of the law on the issues between the parties. It is substantially in accordance with the rule laid down in 14 Ruling Case Law, 506, 508, on the latter page of which we find this language:

“A proprietor of any public house of entertainment may be answerable for the act of one of his patrons as well as of his servant. He owes a duty to those that come to his place to protect them from insult and other annoyances or dangers. But by the great preponderance of authority, this duty is not absolute but is limited to the exercise of reasonable care, and the proprietor is liable only when he is negligent.”

We take this to be a fair statement of the measure of duty resting on Moon and Boisoneau on the occasion under investigation. And while the evidence as to whether that degree of care was exercised is in serious conflict, yet' we can not see that the finding of the jury is so manifestly against the weight of the evidence as to justify a reversal of the judgment. The evidence tends to 'show that', although Brown was an employe of the other defendants, he was not on duty that evening, but that he and the plaintiff, Conley, were both at the time patrons of the bar, which was being attended by the defendant Moon. Moon claims, in his testimony, that he did what he could to prevent the parties entering into the quarrel and to separate them, but this is in direct conflict with the testimony of the plaintiff, whose testimony is to the effect that he was assaulted by Brown in the presence of Moon, and that he, at numerous times, ■called on Moon for protection from Brown. The issues of fact between the parties were fairly submitted to the jury, and, finding no prejudicial error, the judgment will be affirmed.

Judgment affirmed.

Chittenden and Kinkade, JJT., concur.


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    Curlis v. Brown.

      Street crossings — Rights of automobile and street car — Collision ' —Passenger of street car injured — Automobile owner not liable, when — Charge to jury — Province of special charges.

    1. Where an automobile arrives at a street crossing in advance ,of a street car, the driver of the automobile has the prior right to cross and in so doing such driver can assume that the street car will approach the crossing in a careful and prudent manner and that it will be under proper control.
    2. Where a passenger on a street car is injured .in a collision between the street car and an automobile, the owner of the automobile can not be held liable unless such injury was caused by the negligence of the owner of the machine or his driver.
    ’3. Error can not be predicated upon the failure of a special charge to contain all the law of a case, since it is not contemplated that any one special charge should cover every branch of a case.
    (Decided February 5, 1917.)
    Error : Court of Appeals for Hamilton county.

      Messrs. Kinkead '■& Rogers, for plaintiff in error.

      Messrs. DeCamp & Sutphin; Mr. L. J. Brumleve and Mr. Gregor B. Moorman, for defendant in error.
   Jones, Oliver B., J.

This action was brought as the result of a collision between a street car, on which plaintiff was riding, and an automobile, belonging to the defendant, in which she was riding. The facts are unusual in that an occupant of the street car rather than of the automobile was injured.

This collision occurred about noon on May 16, 1914, on McMillan street, at its intersection with Alms Place. The street car was an open, summer car, with a step or running board along its right-hand side, on the front end of which plaintiff was standing. The street car was running westwardly on the north track, and the automobile came east along the south side of McMillan street from Park avenue and turned north across the tracks toward Alms Place, slowing down before passing over the tracks and proceeding into Alms Place, in order to permit two automobiles to pas's, one following the other rapidly westward along the north side of McMillan street. The running board of the street car came in contact with the rear part of the automobile, and a- portion of the running board, six or seven feet in length, on which plaintiff was standing, was ripped -off and he fell to the street and received severe injuries. The rear fender or mudguard of the automobile was struck and bent or smashed, and a dent was made' in the wooden body, and the automobile was pushed or shunted ten feet or so toward -the west -curb of Alms Place.

The evidence clearly shows that the automobile arrived at the crossing first and that it was under the -control of its driver.and had almost stopped before it was started up to cross the north track. It appears that plaintiff, who was an inspector of The Cincinnati Traction Company, and Mr. Wickersham, who was a division superintendent for the same company and at the time -of the accident was sitting on the brake wheel on the front platform of the same car, with the motorma-n, were both on their way -to the -scene of a fire in the city, that the street car, just prior to the collision, was running as fast if not faster than usual, and that the motorman did not slacken the car as he approached Alms Place until he was so near -that' he saw the collision was unavoidable, when he reversed the car and it stopped; but it was not until after the collision and it had- passed beyond the west line of Alms Place.

The trial resulted in a verdict and judgment for defendant. Plaintiff in error seeks to secure a reversal of that judgment.

The errors relied upon by plaintiff in error relate to the charge of the court. It is contended that ■in the general charge the court misstated the issue, in practically stating that the issue was whether the plaintiff was injured through the negligence of the defendant by means of the automobile or through the negligence of the m-otorman in operating the car on which ¡plaintiff was then riding. This, of course, was not the direct issue, for as .a matter of law he might have been injured by the negligence of neither, or as the result of his own negligence. . But -any error found in this respect is not to the -prejudice of plaintiff, but rather to that of defendant. Generally speaking, when two vehicles collide at a street intersection, as in this instance, it is usually the fault of one or the other, possibly of both, of the drivers. Defendant could not be held liable unless 'the injury was caused by her negligence or that of her driver.

Plaintiff in error also complains that the special charges which the trial court gave to the jury at defendant’s request contained undue repetitions of the same -legal propositions, in such a manner as to give them improper emphasis, and that the giving of such charges therefore constituted reversible error. ■ These special charges were given to the jury before argument, as authorized under the fifth clause of Section 11447, General Code. They were ten in number, and while in stating necessary facts there was some repetition, yet none of them is unnecessarily long or involved, and each seems to have been directed to specific propositions. Counsel might possibly have reduced the number of these charges and still have covered all ■the ground., Unnecessary repetitions with little variation are reprehensible and not allowable, but we can not say that the rule laid down in American Steel Packing Co. v. Conkle, 86 Ohio St., 117, has been violated, or that defendants right to special charges was unreasonably exercised; or that the court abused its discretion in giving them. It is not contemplated that any one special charge should cover every branch of a case. Swing, Trustee, v. Rose et al., 75 Ohio St., 355, 369.

The giving of defendant’s special charge 2 is claimed as error. It is in the following words:

“The court instructs you that ' if you find that the automobile of the defendant arrived at the crossing at Alms Place and McMillan street in advance of the street car on which the plaintiff was riding, then the driver of said automobile of defendant had the prior right to cross and in so doing the said driver could assume that the street car would approach the crossing in a careful and prudent manner and that it was under proper control.”

The law stated in this charge is supported by Mansfield Ry., L. & P. Co. v. Kiner, Admx., 2 Ohio App., 82; West, Recr., v. Gillette, 22 C. C., N. S., 369, and Steubenville & Wheeling Trac. Co. v. Brandon, 87 Ohio St., 187.

This charge does not pretend to be determinative of the ease, or.to state all of the law involved, but only as to one of the issues. Error can not be predicated upon its failure to contain all of the law of the case. Cincinnati Interurban Co. v. Haines, 8 C. C., N. S., 77.

We find no error in the record to the prejudice of the plaintiff in error.

Judgment affirmed.

Jones, E. H., P. J., and Gorman, J., concur.