author: Wiseman, P. J. Hornbeck, J.,

text:
    Young, Appellee, v. Featherstone Motors, Inc., et al., Appellants.

      (No. 5011
    Decided March 18, 1954.)

      Messrs. Hamilton & Kramer, for appellee.

      Messrs. Wiles & Boucher, for appellants.
   Wiseman, P. J.

This is an appeal on questions of law from a judgment by the Common Pleas Court of Franklin County on a verdict in favor of plaintiff.

Plaintiff alleges he was the owner of an airplane which was stored in a hangar located at the Sullivant Avenue Airport, which is located on the south side of Sullivant Avenue, a short distance beyond the corporate limits of the city of Columbus. Sullivant Avenue is a public street and highway extending in an easterly and westerly direction along the northern boundary of such airport. Plaintiff alleges further that on the afternoon of April 2, 1951, defendants Featherstone Motors, Inc., and Alexander Hendricks owned and operated a motorcycle which was proceeding in a westerly direction on Sullivant Avenue, near the driveway into the airport; that to the rear of said motorcycle one James Maloney was operating a Plymouth automobile, which he owned, in a westerly direction on Sullivant Avenue; that the motorcyle and automobile collided, the motorcycle crashing through the door of the hangar and into the airplane, causing, damage in the amount of $1,000; that plaintiff used the airplane in his business; and that he was deprived of the use of the airplane for 30 days, to his damage in the sum of $600.

Plaintiff alleges further that Featherstone and Hendricks were negligent in the following particulars:

1. They operated a motorcycle which was not equipped with a rear vision mirror, making it impossible for them to have a clear view of the traffic as it proceeded west on Sullivant Avenue.
2. They made a left turn, without giving any signal therefor, directly across the path of the vehicle operated by defendant Maloney.
3. They failed to see the vehicle of Maloney, although the way was clear and there was no obstruction to view.
4. They failed to heed the horn signal sounded by Maloney, but cut sharply across the path of Maloney’s vehicle.
5. They failed to maintain their motorcycle under control.
6. Maloney was negligent in that he failed and neglected to maintain his automobile under control.

Plaintiff alleges further that the negligence of the defendants was the direct and proximate cause of the damage and asks damages in the sum of $1,600 against the defendants and each of them.

In a joint answer by Featherstone and Hendricks, they allege that on said date a motorcycle belonging to Featherstone was being operated in a westerly direction on Sullivant Avenue, and that a collision occurred between the motorcycle and a motor vehicle being operated by Maloney. The answer interposes a general denial and an admission of negligence as alleged against Maloney.

In a separate answer, Maloney alleges that if plaintiff suffered any damage it was not because of Maloney’s negligence, but was caused by the negligence of the other defendants, which allegation was followed by a general denial.

The evidence shows, that Hendricks was proceeding westerly on Sullivant Avenue at a rate of speed of between 35 and 40 miles per hour; that Maloney was driving his automobile at some distance to the rear at about the same rate of speed; that as Hendricks neared the entrance to the airport he signaled that he was about to make a left turn, by extending his left arm; that Maloney accelerated his speed to about 50 miles per hour intending to pass Hendricks on the left; that, as Hendricks turned left to enter the entrance to the airport, Maloney’s automobile and the motorcycle collided; that the collision occurred near the south edge of the highway; that Maloney applied his brakes but did not sound the horn or give any signal of his intention to pass; and that skid marks made by Maloney’s automobile extended about 100 feet east of the point of collision, starting in. the north lane or near the center of said highway, and then diagonally across the south lane of the highway to the point of collision. Hendricks testified that he knew that Maloney’s automobile was following at his rear for a distance of several blocks; that he observed said automobile by turning his head; and that he signaled twice of his intention to make a left turn, by extending his arm. The motorcycle was not equipped with a rear view mirror as required by law.

The evidence shows that, when the collision occurred, Hendricks was thrown off the motorcycle which was a heavy three-wheeled vehicle; that the motorcycle continued on into the airport, crashed through the door of the hangar and collided with the airplane, causing substantial damage. The difference in the reasonable value of the airplane before and after the collision was $1,000. The plaintiff claims damages for loss of use of the airplane in his business, which was that of an automobile salesman. The evidence shows that the airplane was under repair for less than ten days, but plaintiff in his petition claims loss of use for 30 days, and that a reasonable rent charge for a like airplane was $25 per day. The plaintiff did not rent another airplane and did not testify specifically as to the necessity for the use of an airplane during the time his airplane was out of use. Plaintiff’s claim of damages for loss of business use is based on his testimony that he would occasionally fly to other cities over the week ends; that on several occasions he flew auto parts to other cities; and that he would take a friend for a ride in the airplane during the week end with the thought in mind that he would be better able to sell such friend automobiles. The evidence shows further that plaintiff was sales manager, officer and director of Peatherstone.

On the question of loss of use of the airplane for business purposes, the plaintiff on cross-examination testified as follows:

“Q. How did you have any loss of use here if you were working for Peatherstone it would be Feather-stone’s loss, wouldn’t it? A. I actually was working for Peatherstone Motors, of course it was up to me to get as much business as possible. I got a small per cent of the year’s business in commission.
“Q. How much business did you actually pick up on any of those trips to Cleveland or Indianapolis or any place else that you flew your airplane? A. Probably for business, none.
“Q. Just tell us one trip that you made for business of the Peatherstone that you made any money yourself personally? A. That I personally made money on?
“Q. Yes. A. Well, I don’t think you could look at it from that angle, I personally.
“Q. Answer my question. A. I don’t know of any trip. .
• “ Q. Then that is the only business you had working for Featherstone? A. Yes.
“Q. In fact, you were a director and officer of the Featherstone Company, weren’t you? A. Yes.”

The evidence shows that Hendricks was an employee of Featherstone, that Featherstone owned the motorcycle, and that at the time of the collision Hendricks was on a mission to get an automobile at the airport and return it to Featherstone for purpose of repair.

At the close of plaintiff’s case, and at the close of all the evidence, counsel for Featherstone and Hendricks moved for directed verdict, which motion was overruled.

The jury returned a general verdict against all three defendants in the sum of $1,600. Counsel for Feather-stone and Hendricks submitted interrogatories which were answered by the jury as follows:

“Interrogatory No. 1.
“Do you find defendants, Featherstone Motors and Alexander Hendricks, were negligent? Answer: Yes.
“If so, what were their acts of negligence? Answer : Failing to have a rear view mirror.
“Interrogatory No. 2.
“If your answer to interrogatory No. 1 is no, you need not answer this. If your answer was yes, was such negligence the direct and proximate cause of the damage to the plaintiff? Answer: Yes.”

Featherstone and Hendricks filed a motion for judgment notwithstanding the verdict, which was overruled; also a motion for new trial, which was overruled. Featherstone and Hendricks are the only appellants.

Appellants have filed seven assignments of error, as follows:

1. In overruling motion for directed verdict at close of plaintiff’s case.
2. In overruling motion for directed verdict at close of all the evidence.
3. In overruling motion for judgment notwithstanding the verdict.
4. In overruling motion for new trial.
5. In that the verdict is excessive.
6. In that the verdict and judgment are contrary to law and against the manifest weight of the evidence.
7. Other errors apparent on the face of the record.

Counsel for appellants in their brief discuss five propositions raised by the errors assigned.

First. The first, second and fourth assignments of error are discussed by appellants under this heading. The petition alleges joint operation of the motorcycle by Featherstone and Hendricks, and counsel for appellants concede that the petition is not open to motion or demurrer. Davis v. Montei, 38 Ohio Law Abs., 147. Appellants contend that, although joint operation is alleged, the proof does not sustain joint operation, but does show a master and servant relationship. Master and servant cannot be joined in an action for the negligence of the servant if the master’s liability arises solely from the relationship between them, under the doctrine of respondeat superior. 26 Ohio Jurisprudence, 671, Section 661. A motion to require the plaintiff to elect was in order. French, Admr., v. Central Construction Co., 76 Ohio St., 509, 518, 81 N. E., 751, 12 L. R. A. (N. S.), 669; Losito v. Kruse, Jr., 136 Ohio St., 183, 187, 24 N. E. (2d), 705, 126 A. L. R., 1194; 26 Ohio Jurisprudence, 671, Section 662. But the appellants did not make a motion to require plaintiff to elect. Counsel for appellants contend that, upon such petition and proof, their motions for directed verdict should have been sustained. The point made by appellants is that, since the proof showed the relationship of master and servant in an action based on joint operation, the failure to allege agency in the petition was fatal to plaintiff’s case. There are cited White Oak Coal Co. v. Rivoux, Admx., 88 Ohio St., 18, 25, 102 N. E., 302, 46 L. R. A. (N. S.), 1091, Ann. Cas. 1914C, 1082; Pollock v. Russell Harp, Inc., 14 Ohio Law Abs., 667, 668; Krippendorf v. Bonte, Admx., 9 Ohio App., 130, 132; 26 Ohio Jurisprudence, 669, Section 659; for the proposition that, in an action against the master for injuries caused by his servant, where the agency is alleged, the plaintiff must allege in the petition the essential facts which give rise to the application of the doctrine of respondeat superior.

In Bozzelli v. Industrial Commission, 122 Ohio St., 201, 171 N. E., 108, and Thomas v. Foody, 54 Ohio App., 423, 425, 7 N. E. (2d), 820, it was held that the sufficiency of the petition may be attacked at any time by a motion for a directed verdict. We agree that both these propositions of law are well established, but they have no application here. The petition in .this case states a cause of action; the evidence when given a construction most favorable to plaintiff constitutes a cause of action against each of appellants. It was stated in the Bozzelli case that “where neither the petition nor the facts proven constitute a cause of action in plaintiff’s favor, it becomes the duty of the court to render judgment against the plaintiff. ’ ’ In the instant case the petition states and the proof constitutes a cause of action.

A similar question was presented to this court in Hite v. Andrews, No. 4780, Franklin County, decided October 29,1952, where the petition alleged joint operation and the evidence showed the driver to be the agent of the other defendant, the owner. Agency was not made an issue by the pleadings, but was made an issue by the evidence, as in the instant case. In the Hite ease the plaintiff, on her own motion, dismissed the agent and elected to proceed against the principal. We held that the case was properly submitted to the jury on the petition, which failed to allege agency, and the evidence, which proved agency. This court had a similar question before it in Rodenfels, Exr., v. Great Eastern Stages, Inc., 30 Ohio Law Abs., 42, 52.

It cannot be questioned that the evidence presented a case of misjoinder. The plaintiff could have been required to elect, had the appellants so moved. What is the effect of the failure of the appellants to move to require plaintiff to elect?

In Stevenson v. Hess, 10 Ohio Law Abs., 43, it was held:

“Action being improperly brought against master and servant together, defendants will be deemed to have waived the defect of misjoinder of parties by not objecting thereto.”

In Dow Drug Co. v. Nieman, 57 Ohio App., 190, 13 N. E. (2d), 130, the fourth paragraph of the syllabus is as follows:

“Misjoinder of parties is ground for demurrer when the misjoinder appears on the face of the petition; otherwise the objection should be made by answer. If not made in either way it is waived. ’ ’ '

The court in that case cited Section 11311, General Code (Section 2309.10, Revised Code), which provides that, if the question of misjoinder is not raised by demurrer or answer, “the defendant shall be deemed to have waived it, except * * *.” However, the right of defendant to require the plaintiff to elect is preserved. French, Admr., v. Central Construction Co., supra. In the instant case the appellants did not avail themselves of any such rights.

A motion for a directed verdict is not a substitute for a motion to elect, as it raises a different question. In Sylvania Development Co. v. Start, 25 Ohio App., 411, 413, 414, 158 N. E., 206, the court held;

“When the plaintiff rested its case, the defendants moved the court for a directed verdict, which was granted, and judgment has been rendered thereon. As the bill of exceptions contains evidence tending to show liability of each defendant, the court was in error in granting the motion for a directed verdict. When misjoinder of causes of action or of defendants does not appear upon the face of the petition, the issue may be raised by answer, or, when it first appears by the evidence, by motion to elect, in which case the proper procedure is not to render a directed verdict against the plaintiff if evidence has been introduced tending to show liability of the defendants, but to require an election. French, Adm’r., v. Central Const. Co., 76 Ohio St., 509, 81 N. E., 751, 12 L. R. A. (N. S.), 669; Village of Mineral City v. Gilbow, 81 Ohio St., 263, 273, 90 N. E., 800, 25 L. R. A. (N. S.), 627; Copper River & N. W. Ry. Co. v. Heney (C. C. A.), 211 F., 459.
‘ ‘ In the last case cited the rule is stated by the court, on page 462, as follows :
“ ‘But if it had been true, as contended by the defendants, that misjoinder was disclosed by the plaintiff’s evidence, that fact, it is clear, would not entitle the defendants to a directed verdict in their favor. Their remedy was to move the court at the conclusion of the testimony to require the plaintiff to elect as against which of the defendants he would proceed.’ ”

If the defendants fail to object to the misjoinder by a motion to elect, they will be deemed to have waived the defect. 26 Ohio Jurisprudence, 672, Section 662.

In our opinion the case was properly submitted to the jury on the petition and evidence adduced.

Second. Appellants claim their motion for judgment non obstante veredicto should have been sustained. The third and fourth specifications of negligence were taken from the jury because of lack of proof. The case was submitted on the first, second and fifth specifications, which were: Failure to have the motorcycle equipped with a rear vision mirror; making a left turn without giving a proper signal; and failure to keep the motorcycle under control. In the answer to the interrogatories, the jury found the defendants guilty of only one act of negligence, to wit, “failing to have a rear view mirror.” The failure of the jury to spell out completely the statutory requirement with respect to how and where the mirror should be fastened to the motorcycle is immaterial. The point is made that the failure of the jury to find the existence of any other act of negligence is equivalent to a finding oh such claim of negligence against the party having the burden to establish it. Without question this principle of law has application here. Masters v. New York Central Rd. Co., 147 Ohio St., 293, 70 N. E. (2d), 898. The statutory requirement with respect to rear view mirrors is found in Section 6307-95, General Code (Section 4513.23, Revised Code), which provides as follows:

“Every motor vehicle and trackless trolley shall be equipped with a mirror so located as to reflect to the operator a view of the highway to the rear of such vehicle or trackless trolley. Operators of vehicles, streetcars and trackless trolleys shall have a clear and unobstructed view to the front and to both sides of their vehicles, streetcars or trackless trolleys and shall have a clear view to the rear of their Vehicles, streetcars or trackless trolleys by mirror.”

It will be observed that the act of negligence found by the jury was the failure to have a rear view mirror. The jury did not find that Hendricks did not see or could not see the automobile driven by Maloney to his rear. In fact, the undisputed evidence is that Hendricks knew Maloney was at his rear; that Hendricks knew of the presence of the automobile, while traveling the distance of several blocks; and that he turned his head to make the observation. The jury found that the failure to have the motorcycle equipped with a rear view mirror was the direct and proximate cause of the damage. Counsel for appellants contend that the failure to find the defendants guilty of the other claimed acts of negligence is tantamount to a finding that Hendricks, in making a left turn, gave a proper signal, as Hendricks testified, and that Hendricks maintained proper control of the motorcycle. It is argued by counsel for appellants that in light of these findings, to wit, proper control, proper left turn, and proper signal, together with the fact that Hendricks observed Maloney at his rear and exercised ordinary care in all other respects, and the failure to find that Hendricks was negligent in the operation of the motorcycle, the absence of a rear view mirror could not as a matter of law be the proximate cause of the damage.

We are required to test the general verdict by the answers to the interrogatories. If the special findings are not inconsistent with, or repugnant to, the general verdict, the general verdict should stand and judgment should be rendered on it. 39 Ohio Jurisprudence, 1175, Section 441. It is only when the special finding of facts is inconsistent with the general verdict, that the special finding shall control over the verdict. Section 11420-18, General Code. We find no inconsistency between the special findings and the general verdict. The question raised by counsel for appellants would require the court to examine the evidence. This we cannot do. The trial court, in ruling upon a motion for judgment on special findings, must determine from the pleadings, verdict and special findings, without reference to the evidence, whether the special findings are inconsistent with the general verdict. Fox v. Conway et al., Recrs., 133 Ohio St., 273, 275, 13 N. E. (2d), 124; Board of Commrs. v. Deitsch, 94 Ohio St., 1, 113 N. E., 745; Gearhart v. Columbus Ry., Power & Light Co., 65 Ohio App., 225, 29 N. E. (2d), 621; Hamilton v. City of Cleveland, 93 Ohio App., 93, 104, 110 N. E. (2d), 50. See 39 Ohio Jurisprudence, 1180, Section 443, and cases cited, in which section it is stated:

“In passing a motion for judgment on special findings, the court will consider all the interrogatories and answers thereto together, read them as a whole, and indulge in any reasonable hypothesis in order to reconcile the answers to the special interrogatories with the general verdict.”

In Gearhart v. Columbus Ry., Power & Light Co., supra, in discussing the question, this court, on page 234, said:

“In order for special findings to be inconsistent, it must appear that the findings are irreconcilable with the general verdict and the conflict must be clear. Special findings override the general verdict only when both can not stand, and when the special findings can not by any hypothesis be reconciled with the general verdict. The evidence can not be considered in determining such conflict. The general verdict prevails over the spécial finding if there could have been, under the pleadings, proof of supposable facts not inconsistent with those specially found, sufficient to sustain the verdict. ’ ’

In the instant case, under the pleadings, there could have been proof of supposable facts not inconsistent with those specially found, sufficient to sustain the verdiet. We find the special findings to be consistent with the general verdict, and, therefore, we do not determine whether interrogatory No. 2 is a mixed question of law and fact.

This assignment of error is not well made.

Third. The evidence shows that the plaintiff was the sales manager, an officer and a director of Feather-stone. Appellants contend that if Featherstone was negligent by failing to equip the motorcycle with a rear view mirror, such negligence is chargeable to the officers and directors of Featherstone, and that, therefore, plaintiff, being an officer and director, would be charged with such negligence, which would prevent recovery. A novel situation is presented, which raises an interesting legal question. In our opinion the negligence of Featherstone, if negligence be proved, would not be imputed to a single director or officer, under the circumstances in this case.

In 3 Fletcher, Cyclopedia on Corporations (Perm. Ed.), 711, Section 1137, the controlling rule is stated as follows:

‘ ‘ The general, if not universal, rule is that an officer of a corporation who takes part in the commission of a tort by the corporation is personally liable therefor; but that an officer of a corporation who takes no part in the commission of the tort committed by the corporation is not personally liable to third persons for such a tort, nor for the acts of other agents, officers or employees of the corporation in committing it, unless he specifically directed the particular act to be done, or participated, or co-operated therein.” (Emphasis ours.)

On page 714, Section 1137, ibid., it is stated:

“Officers of a corporation ‘are not held liable for the negligence of the corporation merely because of their official relation to it, but because of some wrongful or negligent act by such officer amounting to a breach of duty which resulted in an injury * * *. To make an officer of a corporation liable for the negligence of the corporation there must have been upon his part such a breach of duty as contributed to, or helped to bring about, the injury; that is to say, he must be a participant in the wrongful act.’ And this is the rule prevailing in most of the jurisdictions.”

In 10 Ohio Jurisprudence, 787, Section 579, the rule is stated:

“Officers and agents of corporations are not liable for corporate acts and debts by reason of their official relation to the corporation; they are merely agents of the corporation, and on principle should no more be held liable therefor than any other agent should be held liable for the acts and debts of his principal. In fact, it is not disputed that officers and agents of corporations are protected from private liability while acting within the scope of the corporate powers.”

Fourth. The court in its general charge instructed the jury on the issue of joint operation. The jury retired for deliberation. Soon thereafter the court excused the jury for the night. On the following morning, when the jury returned and before deliberations began, the court instructed the jury on the question of agency. On the issues made by the evidence, this instruction was proper.

Fifth. The appellants contend that the verdict is excessive. The damage to the airplane was fixed at $1,000. Any damages allowed in excess of this amount would necessarily be allowed for loss of use. In our opinion the evidence presented, which has been set forth in the review of the evidence, is too speculative to go to the jury, and does not afford any proper basis for the allowance of damages to the plaintiff. If there was a loss of use, it was the loss of Featherstone and not that of the plaintiff.

If plaintiff consents to a remittitur, reducing the judgment to $1,000, the judgment will be affirmed, otherwise the judgment will be reversed and cause remanded for a new trial.

Miller, J., concurs.

Hornbeck, J.,

dissenting. I am in agreement with the law as announced in the majority opinion, but, in my judgment, it does not reach the infirmity in the verdict. The verdict cannot be supported by the facts, the law as announced by the majority, the answers to the special interrogatories, and the general charge of the court.

The verdict and judgment are against all three defendants. It is said in the majority opinion that the testimony adduced did not make a case to go to the jury upon the averment of the joint negligence of the defendants.

The language of the general charge, which the jury must have applied to the facts in reaching its verdict against all of the defendants, is:

“If you find that they were all negligent and the negligence combined to produce this damage, then you will find a verdict for the plaintiff against all of the defendants.”

The foregoing language was a part of the general charge first given to the jury. Later the jury was recalled and for the first time instructed upon the theory of liability of Featherstone, upon the principle of respondeat superior, in this language:

“I overlooked instructing you as to anything about the liability of a master for the action of his servant. The law is that the master is liable for any damage caused by the negligence of his servant acting within the scope of his employment. And, in this case, if Hendricks was acting within the scope of his employment for the Featherstone Motors Company and was negligent and that negligence proximately caused damage to the plaintiff, then the Featherstone Motors Company would be liable.”

The answer to interrogatory No. 1 is that Feather-stone and Hendricks were negligent.

It is manifest that the jury was not charged that a joint verdict could be returned against Featherstone as the principal and Hendricks as the agent. The only finding that could have been made on the issues between the plaintiff and Featherstone and Hendricks, on the foregoing charge, if the jury found Hendricks was negligent and was the agent of Featherstone and acting within the scope of his employment, would have been against the company. It did not so find.

It is obvious that the only authority to support the answers to the interrogatories and the verdict against Featherstone, Hendricks and Maloney is the charge upon the negligence of joint tort-feasors combining and concurring to cause the injury to the plaintiff. There is nothing in the record to have carried this issue to the jury.

The fact that Featherstone and Hendricks did not exercise their right to require plaintiff to make an election will not save a verdict which does not respond to the issues and to the correct principle of law as set out in the charge of the court.


source: Caselaw Access Project

author: Guernsey, J.

license: Public Domain

text:
    Vorum, Appellee, v. Gorman, Appellant.
    (No. 1043
    Decided November 3, 1953.)

      Messrs. Meredith & Meredith and Mr. Wm. J. Lowry, for appellee.

      Mr. G. M. Gable, for appellant.
   Guernsey, J.

This is an appeal upon questions of law from a judgment of the Court of Common Pleas of Allen County in an action wherein the appellee, Donald A. Vorum, is plaintiff and the appellant, Thomas Gorman, is defendant.

The action is one for the recovery of damages for injuries alleged to have been sustained by plaintiff through the negligence of defendant in a collision between a Crosley automobile, in which the plaintiff was riding as a business guest of the operator thereof, one Carl Dienstberger, and a Chevrolet automobile owned and operated by the defendant. The collision occurred on Second Street in the city of Delphos on the 5th day of September 1948, when the automobiles in question were both being operated in a generally westerly direction on said street, the Crosley automobile in which the plaintiff was riding at the time of the collision proceeding in front of the automobile operated by defendant and the right front part of defendant’s automobile colliding with the rear left part of the automobile in which plaintiff was riding, causing said automobile to turn over on its side in such a manner as to inflict serious injuries upon the plaintiff.

Upon the trial of the ’cause in the Common Pleas Court, the jury returned a verdict in favor of the plaintiff in the sum of $7,500, and judgment was duly entered thereon. A motion for a new trial was duly filed by the defendant, which the court overruled.

The judgment entered upon the verdict is the judgment from which this appeal is taken.

The parties to this appeal will be hereinafter referred to, respectively, as plaintiff and defendant, the capacities in which they stood in the Common Pleas Court.

The defendant assigns error in the following particulars :

1. The court erred in overruling the motion of defendant for judgment in his favor notwithstanding the verdict.
2. The judgment is not sustained by sufficient evidence and is contrary to law.
3. The verdict is against the weight of the evidence and is not sustained by any evidence.
4. The trial court erred in its general charge to the jury, (a) Error of trial court in charging the jury on the assured-clear-distance-ahead statute, (b) Error of trial court in failing to explain conditions wherein a party charged with violation of the assured-elear-distance-ahead statute may be excused for noncompliance therewith, (c) Error of trial court in charging jury on speed.
5. The court erred in giving'the special request to charge before argument submitted by the plaintiff.
6. Error by the trial court in trying to explain to the jury the special charge before argument after the jury had retired for over two hours, in other words, the trial court attempted to explain what was in the mind of counsel for plaintiff.
7. The court erred in overruling the motion of defendant for a new trial.

In his brief, defendant argues the first, second, and third assignments of error together, and they will be considered together by the court.

The other assignments will be considered in their numerical order, following the consideration of the first three assignments.

Assignments of error 1, 2, and 3.

As to these assignments the defendant makes the following contentions:

1. That the evidence discloses that, immediately preceding the collision between the automobile in which plaintiff was riding as a guest and the automobile operated by defendant, the automobile in which plaintiff was riding was proceeding in a westerly direction in the north half of that portion of Second Stree't lying north of the middle line of the paved portion of said street, the paved portion of the street being approximately 45 feet in width between the curbs.

2. That Carl Dienstberger, the driver of the automobile in which plaintiff was riding, suddenly, without giving any signal whatsoever, turned said automobile to the left in front of defendant’s automobile and across the path of the same which constituted the sole cause of the collision between the two automobiles, resulting in the injuries sustained by plaintiff.

3. That there is no evidence that the defendant was proceeding at an excessive speed, or that he did not have his automobile under control, or that he failed to stop or diminish his speed or divert his course in order to avoid the collision, or that he failed to keep his motor vehicle under control so as to be able to stop within the assured clear distance ahead, or that he operated such vehicle without consideration for the safety of other users of the highway.

A careful reading of the bill of exceptions discloses that there is a conflict in the evidence as to the location of the automobile in which plaintiff was riding prior to the collision and as to whether the driver thereof, without signalling his intention so to do, suddenly turned his automobile into and across the path of defendant’s automobile, the evidence introduced by the defendant tending to prove that at such time the automobile in which plaintiff was riding was in the north half of that portion of Second Street lying north of the center of the pavement on said street and in a lane of traffic north of the lane of traffic in which the defendant was proceeding, and that the driver thereof suddenly and without in any way signalling his intention to do so turned his automobile into and across the lane and path of travel in which defendant’s automobile was proceeding, and the evidence introduced by plaintiff tending to prove that immediately preceding the collision the automobile in which plaintiff was riding was proceeding in a westerly direction along said street near the center line thereof ahead of and in the same lane of traffic in which defendant was operating his automobile, and that the driver of the automobile in which plaintiff was riding gave a hand signal of his intention to turn to the left before turning and made said turn not suddenly but in the ordinary manner and time that such turns are usually made.

There was also conflict between the testimony of plaintiff given upon the trial of the cause and testimony previously given by plaintiff by. deposition and the testimony of plaintiff given upon the trial and the allegations of his petition and amended petition in an action instituted by him in the Common Pleas Court of Allen County against Carl Dienstberger, as to the location of the two automobiles before the accident and as to whether the driver of the automobile in which plaintiff was riding, without giving any signal, suddenly turned his automobile to the left and into and across the lane and path of travel in which defendant was proceeding.

Although there was no testimony that the defendant was operating his automobile at a rate of speed in excess of the prima facie speed limit, there was testimony from which the jury could infer that defendant was proceeding at a speed which would not permit him to bring his car to a stop within the assured clear distance ahead, and there is also evidence to the effect that the defendant’s automobile skidded on a dry pavement for a distance of 20 feet after the defendant applied the brakes to bring it to a stop, from which evidence the jury could infer that the defendant was exceeding the prima facie speed limit. There is also evidence of the proximity of defendant’s automobile, at the time of collision, to a railroad crossing, which proximity the jury might consider a condition requiring a speed less than the prima facie speed.

On the whole, and leaving out of consideration the testimony of the plaintiff given upon the trial, there is substantial evidence apparently credible tending to prove every fact essential to support the verdict rendered by the jury in favor of plaintiff. The verdict is neither contrary to law nor against the manifest weight of the evidence and the court did not err in overruling the motion of defendant for judgment in his favor notwithstanding the verdict.

The first three assignments of error are, therefore, without merit. ,

Assignment of error 4.

(A) As we have indicated in our preceding discussion, there is ample evidence tending to prove that the defendant was operating his automobile in a manner which violated the provisions of the assured-clear-distance-ahead statute. Therefore, the court did not err in charging the jury on such statute.

(B) In the absence of a request from defendant to that effect, the court did not err in failing to explain conditions wherein a party charged with the violation of the assured-clear-distance-ahead statute may be excused for noncompliance therewith, as such failure is an error of omission and not an error of commission for which a judgment is subject to reversal.

(C) The basic statutory rule as to speed is set forth in the first paragraph of Section 6307-21, General Code, as follows:

“ (a) No person shall operate a motor vehicle, trackless trolley or streetcar in and upon the streets and highways at a speed greater or less than is reasonable or proper, having due regard to the traffic, surface and width of the street or highway and of any other conditions then existing, and no person shall drive any motor vehicle, trackless trolley or streetcar in and upon any street or highway at a greater speed than will permit him to bring it to a stop within the assured clear distance ahead. ’ ’

The succeeding provisions of Section 6307-21 as to prima facie lawful speeds and prima facie unlawful speeds constitute limitations on the basic rule mentioned in the first paragraph thereof.

Where speed is properly an issue in an action, it is essential that the court instruct the jury as to the provisions contained in the first paragraph of that section so that the jury may understand the limitations upon said provisions contained in the succeeding paragraphs of the section, relating to prima facie lawful speeds and prima facie unlawful speeds.

In the instant case the instruction as to reasonable or proper speed and as to assured clear distance was applicable, under the first paragraph of such section, to the facts in evidence, and the instruction as to prima facie lawful and unlawful speeds was applicable, under the pertinent succeeding provisions of the section, to the facts in evidence tending to prove that the automobile driven by defendant skidded 20 feet on a dry pavement after the application of brakes, from which fact the jury might infer that the automobile was being operated at a speed in excess of the prima facie lawful speed.

This assignment of error is, therefore, without merit.

Assignment of error 5.

The special charge given to the jury before argument at the request of the plaintiff is in the following words:

“If you find that the defendant, Thomas Gorman, was negligent in one or more acts complained of by the plaintiff, and that Carl Dienstberger was also negligent, and the combined negligence of the two directly and proximately brought about the collision, the defendant in this case is liable for such damages as directly and proximately result therefrom.”

That is a correct statement of law applicable to the facts of the case, there being evidence from which the jury might find that the injuries sustained by plaintiff were caused by the concurrent negligence of the defendant and Carl Dienstberger. It did not tend to confuse the jury as contended by defendant but served to clarify the issues in the case. It was a proper instruction notwithstanding the fact that Carl Dienstberger was not a party defendant in the case and the petition does not charge concurrent negligence on the part of the defendant and Carl Dienstberger. The court did not err in submitting this instruction.

Assignment of error 6.

As to this assignment of error, the defendant contends that the court in commenting, in response to a request by the jury made after the jury had been charged and had retired to the jury room for deliberation, upon the special instruction given to the jury before argument at the request of the plaintiff violated the provisions of subdivision 7 of Section 11420-1, General Code, reading as follows:

“7. The court, after the argument is concluded, before proceeding with other business, shall charge the jury: any charge shall be reduced to writing by the court, if either party, before the argument to the jury is commenced, request it; a charge or instruction, when so written and given shall not be orally qualified, modified, or in any manner explained to the jury by the court; and all written charges and instructions shall be taken by the jurors in their retirement, and returned with their verdict into court, and shall remain on file with the papers of the case. ’ ’

Defendant contends further that this action on the part of the court constituted reversible error.

A reading of that provision discloses that it applies only to instructions given by the court after argument and before the submission of the case and has no application to special instructions given at the request of counsel after the close of the evidence and before argument, as prescribed in subdivision 5 of Section 11420-1, General Code. It also has no application to instructions upon matters of law given by the court to the jury at its request after the jury has retired to deliberate and has expressed its desire to the court for further instructions on the law of the case, as prescribed in Section 11420-6, General Code.

The provisions of subdivision 7 of Section 11420-1 (former Section 11447), General Code, were under consideration in the case of Pratt v. Byers, 41 Ohio App., 112, 179 N. E., 747, in which it was held that such provisions relate to a written charge or instruction given after argument and have no application to subdivision 5 of the same section which provides for the giving of written instructions on matters of law, before argument, upon request of either party to the suit.

In the case at bar it was the duty of the court, under the provisions of Section 11420-6, General Code, to comply with the request of the jury for further instructions, and the court did not err in so instructing the jury or in the instructions given it.

When a juror subsequently asked if there was any way the jury could get legal advice “and get this completely clear in our minds as to a certain point,” the court did not err in suggesting that the jury reduce its request to writing, and as the request was not submitted in writing the court did not err in not an- ■ swering the same. See Defibaugh v. Ulmer, 56 Ohio App., 255, 10 N. E. (2d), 447.

Nor did the court err in refusing the various requests or motions of the defendant that it declare a mistrial for the reason that the jurors in submitting the request appeared to be confused.

For the reasons mentioned, this assignment of error is without merit.

Assignment of error 7.

The assignments of error which we have hereinbefore discussed and decided adversely to defendant’s contentions comprehend all the errors upon which defendant based his motion for a new trial, so that it is unnecessary to discuss this seventh assignment of error except to state that it is without merit.

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

Judgment affirmed.

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


author: Hornbeck, J.

text:
    Adkins, Appellant, v. Adkins, Appellee.
    (No. 4971
    Decided February 8, 1954.)

      Mr. L. P. Henderson, for appellant.

      Messrs. Tyack & Gertner, for appellee.
   Hornbeck, J.

This is an appeal on questions of law from a judgment of the Common Pleas Court, refusing to decree partition of certain real property upon the petition of the plaintiff.

The petition alleged that the plaintiff and the defendant were tenants in common of the real estate described in the petition, each seized of one-half interest in fee simple. Defendant, by way of answer, alleged that the interest of plaintiff, if any, in the real estate described in the petition is subject to the prior life estate of Thomas Addison, who is still living.

The cause, was submitted on a stipulation of facts. The facts essential to an appreciation of the question presented are that Norris Adkins is a remainderman of one-half of the real estate sought to be partitioned, and defendant is the owner in fee of the other one-half, and holds by deed the life interest of Thomas Addison, the former life tenant. The question thus presented is whether a quitclaim deed by Thomas Addison, the life tenant, of his interest to the defendant removes any bar to partition which Thomas Addison, the life tenant, could have urged had he retained his life interest.

It is the contention of plaintiff that by the quitclaim deed Thomas Addison conveyed all his right, title and interest in the real estate under consideration to defendant. This is true. But we fail to follow the reasoning that thereby the plaintiff had the right to maintain his suit in partition. By the deed from Thomas Addison, the life tenant, to the defendant, his lesser interest was merged in defendant’s greater interest. However, the defendant had another interest, namely, the life estate in the other one-half of the real estate which was owned by the plaintiff, and, as to the plaintiff, there is still outstanding a life estate. The cases cited by Judge G-essaman in his opinion support his conclusion.

In the situation thus developed by the facts, plaintiff may not maintain his action for partition because there is outstanding against his undivided one-half interest, the life estate in his share which is now owned by the defendant.

The right of possession to plaintiff’s one-half interest in the premises is in the defendant by virtue of her life estate therein. Possession, or immediate right to possession, is essential to a right of partition. 30 Ohio Jurisprudence, 843, Section 11; Rawson v. Brown, 104 Ohio St., 537, 136 N. E., 209.

The judgment is affirmed.

Judgment affirmed.

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


author: Skeel, J.

text:
    Langanau Mfg. Co., Appellant, v. City of Cleveland, Cleveland Transit System, Appellee.
    (No. 22792
    Decided March 2, 1953.)

      Messrs. Strangward, Lloyd & Cameron and Mr. F. Butler, for appellant.

      Mr. Robert Mooney and Messrs. Green, Woods, Lausche <& Wilmot, for appellee.
   Skeel, J.

This appeal comes to this court on questions of law and fact from a judgment of the Common Pleas Court of Cuyahoga County, dismissing the plaintiff’s petition wherein an injunction was prayed for to prevent the defendant from trying a condemnation proceeding seeking to take plaintiff’s property as a necessary step in the building of a rapid transit system for public transportation in the city of Cleveland.

The plaintiff is the owner of a manufacturing plant located on the south side of Franklin Avenue at West 84th Street. The property also faces along the north side of the New York, Chicago & St. Louis Railroad Company right of way.

The need for plaintiff’s property comes about under the following circumstances: The line of travel of

the rapid transit system from East Cleveland to somewhere near West 105'th Street and Detroit Avenue follows, and in some places occupies in part, the present right of way of the New York, Chicago & St. Louis Railroad Company. At or near the location of the plaintiff’s property it has been found necessary for the two tracks of the rapid transit to occupy the place where the main tracks of the railroad company are now located. This necessitates relocating the railroad tracks and in order to provide the railroad with the same operating facilities that it now has, four tracks (two main tracks and two passing tracks) must be constructed north of the tracks taken over by the rapid transit system.

To accomplish this purpose, the transit board entered into a contract with the New York, Chicago & St. Louis Railroad Company which, in part, provided that the transit'board will acquire the necessary land and relocate the railroad company’s tracks. The plaintiff’s land is a part of that which is necessary to carryout the terms of the agreement. Two primary questions are presented by this proceeding:

First, it is the claim of plaintiff that subdivision 14 of Section 3677, General Code, is in violation of constitutional provisions in permitting the transit system to take its property without full compensation. This claim is based on the allegation that no compensation, for damage to plaintiff’s business in being compelled to move and the incidents resulting therefrom which it estimates will be in excess of $100,000 over and above the value of the real estate, will be allowed or paid in the condemnation proceeding which this proceeding seeks to enjoin.

The proceeding in condemnation is provided for by the Constitution and statutes of the state of Ohio. Whether the power to take plaintiff’s property exists and whether that power is being legally exercised cannot be challenged in a collateral proceeding. As stated in 21 Ohio Jurisprudence, 1211, Section 138:

“Injunction will not be granted against the maintenance of an action which the statute expressly provides may be prosecuted.”

The case upon which plaintiff places great reliance, P. C. C. & St. L. Ry. Co. v. City of Greenville, 69 Ohio St., 487, 69 N. E., 976, is not in point. The court there had for consideration Section 2233, Revised Statutes (since repealed), which provided that a city could appropriate the right to open and extend a street across the tracks of a railroad, ‘ ‘ * * * where such appropriation will not unnecessarily interfere with the reasonable use of the property so crossed by any such improvements * *

It was rightfully held that the limitation of the right to appropriate a right of way over the plaintiff’s tracks was an issue that could not be tried out in the appropriation proceeding, and the bringing of an action in injunction to try out the question of “unreasonableness ’ ’ was procedurally correct. The right of the city to construct a rapid transit system and to acquire by appropriation the necessary land to accomplish that purpose is here not questioned.

The filing of the appropriation proceeding by the city preceded the filing of this action for injunction in point of time, so that all questions which can be raised in the appropriation case cannot again be presented by a collateral action. Whether the authority granted the city by subdivision 14 of Section 3677, General Code, comes within constitutional limitations is a question which can always be raised in the proceeding in which it is attempted to exercise such power. Until the damages are assessed, the plaintiff cannot determine whether he has suffered any deprivation of his constitutional rights.

Whether the plaintiff has a legal claim for loss of profits, cost of moving, and like expense, and whether the failure to allow damages other than the true value of the real estate, where all the plaintiff’s property is being taken, is a matter of considerable doubt. In 29 Corpus Juris Secundum, 1031, Section 162, in the chapter on eminent domain, the author says:

“Generally injury to business or good will or loss of profits are not elements of damages.”

If there be any just legal claims for damages not included in the value of the real property, a court of law will afford a plaintiff a complete remedy.

Rhodes v. City of Cleveland, 10 Ohio, 159, 36 Am. Dec., 82; Town Council of Akron v. McComb, 18 Ohio, 229, 51 Am. Dec., 453; Lake Shore & Michigan Southern Ry. Co. v. Cincinnati, Sandusky & Cleveland Ry. Co., 30 Ohio St., 604; Cohen v. Cleveland, 43 Ohio St., 190, 1 N. E., 589; Grant v. Village of Hyde Park, 67 Ohio St., 166, 65 N. E., 891; Schimmelmann v. Lake Shore & Michigan Southern Ry. Co., 83 Ohio St., 356, 94 N. E., 840, 36 L. R. A. (N. S.), 1164; Smith v. Erie Rd. Co., 134 Ohio St., 135, 16 N. E. (2d), 310; State, ex rel. McKay, Exr., v. Kauer, Dir. of Highways, 156 Ohio St., 347, 102 N. E. (2d), 703.

In 15 Ohio Jurisprudence, 1052, Section 392, it is said:

“An injunction against the construction of an improvement may be refused where recovery of damages is an adequate remedy, and where the improvement is of great importance to the public. Where the defendant has an ultimate right to do the act sought to be enjoined, upon certain conditions, and the means of complying with such conditions are not at his command, the courts will endeavor to adjust their orders so as, on the one hand, to give to the complainant the substantial benefit of such conditions, while, on the other, not restraining the defendant from the exercise of his ultimate rights.”

The second question here presented is the right of the city to take plaintiff’s property for the purpose of reconstructing and relocating the New York, Chicago & St. Louis Railroad Company tracks thereon, to enable the rapid transit system to build their tracks on the present right of way of the railroad. This is the plan that has been adopted, and there is nothing in the case which tends to show that such plan is unreasonable or that any other plan is available to the rapid transit board.

The contract (which was of record long before this condemnation proceeding was filed) between the transit board and the railroad company requires that the transit board relocate the railroad tracks and provide the railroad company with facilities sufficient to enable it to render the same services it is now able to give with its present facilities. This is all made necessary because of the need of the transit board to build its tracks where the main-line tracks of .the railroad company are now located. The acquiring of plaintiff’s property is necessary for this purpose and such need is clearly incidental to providing rapid transit service for the public convenience and necessity.

There can be no doubt that the rapid transit board would have no right to take the railroad right of way, if such action in effect would prevent the railroad company, in whole or in part, from carrying on its business or service to the public as a common carrier. For the transit board to build tracks through this location it is absolutely necessary that additional property be acquired to accomplish such purpose.

There is considerable doubt as to the right of the railroad company to dispose of its facilities which are wholly adequate to its needs and then seek to exercise the right of eminent domain to acquire a new right of way to enable it to give the same service that it was able to give before disposing of its original right of way. Under the facts of this case, the public authority in need of acquiring property to build a rapid transit system for the convenience of the people of Cleveland is that of the transit board, not the New York, Chicago & St. Louis Railroad Company.

The board’s resolution declaring the necessity of appropriating plaintiff’s property for its purposes reads in part as follows:

“That it is deemed necessary, and it is hereby declared to be the intention of this transit board, to appropriate the fee simple interest in and to the premises hereinafter described for use for urban transportation facilities.”

Such resolution is fully sufficient upon which to take the plaintiff’s property under the stipulation of facts here agreed upon, and in part as above set forth.

Decree is rendered for defendant as was rendered in the Common Pleas Court.

Decree for defendant.

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


author: Phillips, J.

text:
    City of Youngstown, Appellant, v. Thomas et al., Appellees.
    (No. 1285
    Decided September 16, 1953.)

      Mr. H. Herschel Hunt, director of law, Mr. 1. Freeman and Mr. P. Richard Schumann, for appellant.

      Messrs. Sieman, Sieman & Sieman, for appellees.
   Phillips, J.

Plaintiff, a municipal corporation, appealed to this court on questions of law from a judgment of the Court of Common Pleas entered upon a jury verdict of $1,094 for the defendants in an action to appropriate 5.47 acres of defendants’ land for the purpose of removing trees therefrom, which plaintiff claims are a flying hazard at plaintiff’s municipal airport situated in Vienna, Trumbull County, Ohio.

Plaintiff contends by assignments of error that the verdict of the jury “was influenced by incompetent evidence as to enhanced value by reason of the probable need of the land for airport purposes”; that the “verdict of the jury is grossly excessive and not warranted by the evidence, and was influenced by passion and prejudice”; that the verdict of the jury is “against the manifest weight of the evidence” and “contrary to law”; and that the trial judge erred “in refusing to set aside said verdict and grant plaintiff a new trial.”

Plaintiff’s evidence is that the land appropriated comprised the rear portion of defendants’ farm situated on route 90 and containing in all about 13% acres, only eight acres of which are tillable or cultivatable; and that the portion appropriated consists of underbrush and second growth timber of no market value.

There is evidence that the appropriated land is situated three-quarters of a mile north of the center of Vienna, Ohio, eight miles from Sharon, Pennsylvania, fourteen miles from Youngstown, Ohio, and about twelve miles from Warren, Ohio, and when cleared will enable aircraft to come 780 feet closer to the defendants’ dwelling and building situated on the unappropriated portion of their farm without the flying hazard that now exists; that one and one-half acres of the farm as constituted before appropriation were used to house defendants’ dwelling and building, two acres for planting corn, one acre for general gardening and seed corn, and an additional three and one-half acres for general planting; that the appropriated part contains two and one-half acres of pasture land, two and one-half acres of timber, and the remaining part is suitable for planting and tilling; that the useable land of the farm has been depreciated forty per cent; that the cutting of the trees will increase the workable land within the appropriated area; and that after appropriation defendants’ land is too small to be suitable for suburban farming and too large for residential purposes, rendering it difficult to dispose of.

One of' plaintiff’s appraiser witnesses appraised the fair market value of defendants’ appropriated land, including buildings, before appropriation at $7,320, and thereafter at $6,992.

Another of plaintiff’s appraiser witnesses fixed the value of defendants’ land and buildings before appropriation at $8,299, and thereafter at $8,026.50.

Plaintiff’s third appraiser witness valued the land appropriated at $150 an acre if considered as pasture land but treated it as unmarketable no-value. timber land in that it would not pay to haul the timber to the saw mill, and testified that the timber is useable only for fence posts or firewood.

One of defendants’ appraiser witnesses testified that the rear 400 feet, if sold separately, will have to be sold for “whatever you can get for it”; that the only value he could find arises from the fact that the “property is being bought.by the airport and the price of a piece of property depends a great deal on the demand for property in that area”; that it is hemmed in by the farm in the front and the airport in the rear, without ingress or egress if severed; and that the value of the appropriated land is $100 per acre.

Defendants’ second appraiser witness appraised such farm before appropriation at $9,000 and $6,800 thereafter, and fixed the actual value of the acreage taken at $450 per acre, without consideration of the damage done to the residue.

Another of defendants’ appraiser witnesses testified that the reasonable market value of defendants’ farm before appropriation was $9,500 and thereafter was $6,900, and appraised the appropriated land at $300 per acre.

The trial judge instructed the jury that it could determine the amount of compensation it would allow to defendants upon the basis of the fair market value of the land taken and the damage, if any, to the residue; or the difference in the value of the land appropriated before and after the severance from the rest of the land, in which event it need not consider any damage to the residue.

Plaintiff contends that, when it appropriated defendants’ land for municipal purposes, defendants could recover compensation only for the value at the time it was assessed in the proceeding and for damages to the residue, if any; that the jury was not permitted to consider increased value of the appropriated lands by the proposal or construction of the work for which it was appropriated; and that “the owner of a tract of land in a condemnation proceeding is not entitled to an increased value which may result from the improvement, where its appropriation is a condition precedent to the existence of the improvement. Nichols v. Cleveland, 104 Ohio St., 19.”

Plaintiff contends further that “a preponderance of the evidence, including the testimony of the defendants’ witness Vasu, permits no allowance exceeding $100 per acre for the land taken,” and asks this court to order a remittitur, “where the verdict appears excessive * * #, a rule adopted not only by the courts of Ohio but also by the federal courts and other jurisdictions.”

It is the duty of the jury to determine where the truth in the evidence lies and where the probabilities lie, and to award defendants a fair sum for the land appropriated.

“Where only a part of a tract is taken in the exercise of the power of eminent domain, it is generally recognized that the owner is entitled to recover damages not only for the part taken but also for the injuries to the residue, the measure of damages, according to some authorities, being the difference between the market value of the entire tract before the taking and the market value of what is left after the taking. ’ ’ 29 Corpus Juris Secundum, 976, Section 139.

“The tribunal whose duty it is to determine the value of land taken by eminent domain is not limited to the value of the land for the purposes for which it is actually used, but may consider all uses to which it is adapted and might be put, and will award compensation upon the basis of its most advantageous and valuable use, having regard to the existing business or wants of the community, or such as may be reasonably expected in the immediate future.” 18 American Jurisprudence, -879, Section 244.

‘ ‘ The usual rule is that the risk of injury to persons or property by reason of the improvement in question cannot be considered as a distinct element of damages, although such risk may be considered on the question of market value and depreciation.” 29 Corpus Juris Secundum, 1039, Section 169.

Defendants “may recover both compensation and damages” for the value of the land and the damages to the residue. 15 Ohio Jurisprudence, 1074, Section 412; Cincinnati, L. & N. Ry. Co. v. City of Cincinnati, 16 N. P. (N. S.), 587.

“In ascertaining the amount which should be allowed in an appropriation proceeding, the jury should take into account not only the purposes for which the land is or has been applied, but any other beneficial purpose to which it may be applied.” In re Appropriation by Supt. of Public Works, 155 Ohio St., 454, 458, 99 N. E. (2d), 313.

It was the jury’s duty under proper instructions of the trial judge to consider the testimony of defendants’ appraiser witness that “the price of the piece of property depends a great deal on the demand for the property in that area,” and there is nothing to indicate to us that in such consideration the jury was influenced by passion or prejudice “as to the enhanced value by reason of the probable need of the land for airport purposes.”

In our opinion the verdict of the jury is not grossly excessive.

“When part of a parcel of land is taken by eminent domain, the owner is not restricted to compensation for the land actually taken; he is also entitled to recover for the damage to his remaining land. In other words, he is entitled to full compensation for the taking of his land and ail its consequences.” 18 American Jurisprudence, 905, Section 265.

We cannot conclude that the verdict of the jury is against the manifest weight of the evidence which we have considered carefully, together with the law applicable thereto; that the trial court erred “in refusing to set aside said verdict and grant plaintiff a new trial”; or that the verdict of the jury is “contrary to law.”

The judgment of the Court of Common Pleas is affirmed.

Judgment affirmed.

Griffith, P. J., concurs.

Nichols, J., concurs in the judgment.


author: Per Curiam.

text:
    In re Estate of Sarver: Conrad, Appellant, v. Sarver, Appellee.
    (No. 5028
    Decided March 2, 1954.)

      Messrs. Rowe, Dunkle <& Davis, for appellant.

      Messrs. McFadyen & Swisher, for appellee.
   Per Curiam.

This is an appeal on questions of law from a judgment of the Probate Court, dismissing the second amended petition of plaintiff after the sustaining of a demurrer thereto, plaintiff electing not to plead further. There are two grounds for the demurrer, first, that the second amended petition does not state a cause of action, and, second, that several causes of action are improperly joined.

The court sustained the demurrer on both grounds. In the second amended petition, the ’ plaintiff avers that the final account of the executrix of decedent’s estate was approved and confirmed on October 2, 1950, and that she was the owner and holder of notes payable to her and signed by decedent in his lifetime under dates of November 20, 1937, for $5,000, November 9, 1938, for $1,500, April 22,1939, for $1,500, and November 22, 1939, for $1,500, all past due and unpaid at the time of the death of Sarver. Plaintiff alleges also:

“That in the spring of 1937, she had a nervous breakdown which the deceased knew about at all times hereinafter set forth; that from then on and for years thereafter this applicant was unable, either mentally or physically, to handle her affairs which deceased knew about; that the deceased, knowing of her condition persuaded and induced this applicant to loan bim the sums as appearing in the notes above described.”

She alleges further:

“That because of her condition she was unable to protect her interest in the within estate and that her inability continued during the time said estate was being administered and so continued until approximately six months prior to the filing of the original petition herein.”

She alleges further that the executrix did not make disclosure to the court of the obligations owing by the deceased at the time of his death, of which the executrix knew before she made final distribution of the assets of the estate and before she filed her final account, and that her conduct was a fraud upon the court and an irregularity on her part in obtaining a final judgment approving her final account.

Plaintiff prays that the final order of the court approving and confirming the final account of the executrix be reopened, that the executrix be ordered either to recognize and allow the claim of plaintiff as presented to her, or in the alternative to disallow the claim and to notify plaintiff of such disallowance in writing and her reason for so doing and for all other relief to which plaintiff is entitled, either in law or in equity, in the premises.

We give particular» attention to the first branch of the demurrer, which questions the sufficiency of the allegations of the second amended petition to state a cause of action. A sustaining of the second ground of the demurrer would not affect the merits of the cause. Hizar, an Infant, v. Cowan, 51 Ohio App., 1, 199 N. E., 196.

The briefs of the parties take a wide range and discuss many aspects of the case. Numerous cases are cited by counsel for plaintiff, particularly affecting Sections 10509-118 and 10506-40, General Code, which cases were decided before the present sections were enacted. The last amendment to Section 10506-40, General Code, was effective' September 29, 1945, and the last amendment to Section 10509-118, General Code, became effective August 22, 1941.

The claim of the plaintiff is that she was under legal disability at all times from a period prior to the execution of the notes which she claimed were unpaid until about six mouths prior to the filing of her petition; that decedent, with knowledge of her incapacity, prevailed upon her to loan the money for which the notes were given; that this act was at all times known to the executrix; that at all times up to and including the date when her final account was approved and settled, defendant-executrix had knowledge of the existence of the indebtedness to plaintiff; that, notwithstanding, she closed her account and distributed the assets of the estate; and that this conduct on the part of the defendant, as executrix, constituted fraud.

There is some difference between counsel for the parties as to whether the equitable jurisdiction of the Probate Court is broad enough to accord any relief to the plaintiff, if her second amended petition states a cause of action. It is recognized that the equitable jurisdiction of the Probate Court is to dispose of any matter properly before the court, unless the power is otherwise limited or denied by statute. Section 10501-53, General Code. We are satisfied that if the petition states a cause of action the Probate Court had sufficient equitable jurisdiction to grant part, if not all, of the relief sought.

The basis for the vacation of the order settling the final account of the executrix is found in Section 10o06-40, General Code, which, in part, provides:

“The order of the court upon the settlement of an account shall have the force and effect of a judgment. Such order may be vacated only as follows:
“ (a) Such order may be vacated for fraud, upon motion of any person affected thereby * * * if such motion is filed * * * within one year after discovery of the existence of the fraud. Any person who is subject to any legal disability may file such motion at any time within one year after the removal of such disability * * * or his guardian or a successor guardian may do so during the period of such disability.”

Two questions are immediately projected by the application of this section to the facts pleaded:

(1) Was the plaintiff under legal disability?
(2) Do the facts pleaded constitute fraud?

Legal disability is defined as follows in Section 10512-2, General Code:

“The term ‘legal disability’ as used in this act shall include the following: (a) persons under the age of twenty-one years; (b) persons of unsound mind; (c) persons in captivity; (d) persons under guardianship of the person and estate or either.”

Manifestly, the test here is whether the second amended petition charges that the plaintiff, during the material period involved, was a person of unsound mind. The specific language of her petition is that “this applicant was unable, either mentally or physically, to handle her affairs. ’ ’

We held’ as follows in the case of In re Estate of Price, 87 Ohio App., 23, 93 N. E. (2d), 769, in the first paragraph of the syllabus:

“The term ‘legal disability,’ as used in Section 10509-134, General Code, is defined in Section 10512-2, General Code, and applies to ‘persons of unsound mind. ’ The words, ‘ of unsound mind, ’ under the provisions of Section 10213, General Code, include every species of mental deficiency or derangement.”

Judge Wiseman in writing the opinion in that case relied upon Lowe, Gdn., v. Union Trust Co., 124 Ohio St., 302, 178 N. E., 255, wherein the court construed the phrase, “of unsound mind,” as found in Section 10213, General Code. The court in In re Estate of Price said:

“* * * that the term, ‘of unsound mind,’ used in Section 12270, General, Code, has a broader and more inclusive meaning than the word, ‘insane.’ * * * it was proper to consider whether the litigant ‘was suffering from some species of mental deficiency or derangement so as to be unable to look into her affairs, properly consult with counsel, prepare and present her case, and assert and protect her rights in a court of justice. ’ ’ ’

It is the contention of plaintiff that the executrix, knowing of the legal disability of the plaintiff and that she had claims against the estate due and unpaid, committed a fraud upon plaintiff and upon the court in failing to inform the court of the claims and in filing her final account and causing it to be settled and allowed.

The sole statutory obligation of an executor relating to the listing of debts against the estate which he is administering is found in Section 10509-118, General Code, which enjoins upop the fiduciary the obligation, within the time therein fixed, to verify and return to the Probate Court a schedule of claims against the estate he represents which have been then presented to him. This section of the Code was effective on September 22, 1941, and differs from the former section of the same number, in that, in the earlier section the executor was required to list in the schedule of debts, “all known claims, debts and liabilities against the estate, including any which may be known to the executor or administrator but not presented.” (Emphasis ours.)

It thus appears clearly that the executrix was under no legal obligation to list plaintiff’s claim in the schedule of debts. The facts of which defendant-executrix had knowledge are alleged in the petition and her failure to divulge them to the court did not constitute fraud as contemplated by the controlling statute. As she was under no'legal obligation whatever to list this claim, a failure to do so was not fraud. Nondisclosure, in order to constitute fraud, must be of facts which the one who is charged with fraud is under an obligation to disclose. Hadley v. Clinton County Importing Co., 13 Ohio St., 502, 82 Am. Dec., 454.

The general rule is stated in.37 Corpus Juris Secundum, 244:

“Where the particular circumstances impose on a person a duty to speak and he deliberately remains silent, his silence is equivalent to a false representation. ’ ’

. Here, there was no duty enjoined upon the defendant to speak.

The cases cited by plaintiff wherein fraud has been found or where it was determined that it had been alleged are not analogous to the situation here presented. In Duhme, Admr., v. Mehner, Admr., 10 C. C., 107, 6 C. D., 126, there was an allegation of overt fraud to which the defendant was a party, practiced upon a daughter of defendant who was an heir of decedent and toward whom the administratrix owed a duty and sustained a confidential relationship. The averment was that a scheme had been effectuated resulting in the denial to plaintiffs of their distributive share of decedent’s estate. In Carpenter v. Dich, 41 Ohio St., 295, wherein was tested the right of a creditor of an assignor to force collection of a' dividend on a claim, which claim had not been presented until 10 months succeeding the appointment of the assignee, no non-claim statute was involved. The other cases cited relate to powers of courts of general equity jurisdiction, whose judgments were not controlled by specific statutory provisions defining and limiting the duties of the persons whom it is alleged had committed the fraudulent acts. Ormsby, Jr., v. Longworth, 11 Ohio St., 653; Darst v. Phillips, 41 Ohio St., 514; Seeds v. Seeds, 116 Ohio St., 144, 156 N. E., 193, 52 A. L. R., 761.

This, then, brings us to consideration of the next question, namely, the right of the plaintiff to have her claim presented to the executrix, if the final account was reopened; it appearing that she was under legal disability at all times from the appointment of the executrix until her discharge and until six months prior to the filing of plaintiff’s petition.

Section 10509-112, General Code, effective August 22, 1941, provides, among other things:

“All claims shall be presented within four months after the date of the appointment of the executor or administrator. ’ ’

This is a statute of limitation or nonclaim statute. Beach, Recr., v. Mizner, Exr., 131 Ohio St., 481, 3 N. E. (2d), 417.

The exceptions to the application of the foregoing section are found in Section 10509-134, General Code, which, so far as applicable, provides:

“A claimant who has failed to present his claim to the executor * * * within the time prescribed by law may file a petition in the Probate Court for authority to present his claim after the expiration of such time. Such petition forthwith shall be assigned for hearing, and at least five days before the date of the hearing, the claimant shall give written notice thereof to the executor * * * and to such other parties, if any, as the court may designate. If upon hearing the court finds * * # (c) that the claimant was subject to any legal disability during such period or any part thereof, then the court may authorize such claimant to present his claim to the executor * * * after the expiration of such period; provided, however, that-a claim which is not presented within nine months from the appointment of the executor * * * shall be forever barred as to all parties * * * and no payment shall be made nor any action maintained thereon, except as otherwise provided in this chapter with reference to contingent claims.

By the proviso in this section, the plaintiff is met with the insuperable obstacle of the requirement that she present her claim within nine months from the appointment of the executor or administrator or be forever barred. In Breen, Admx., v. Conn et al., Exrs., 64 Ohio App., 325, 28 N. E. (2d), 684, the court held that a suit brought by a minor on a claim against an administrator could not be maintained without the allegation of a presentation of her claim. It appeared there that even an infant who is specifically defined as being under legal disability by Section 10512-2, General Code, was not relieved from the positive requirement of Section 10509-112, General Code, as to the time for filing of claims. The court cited Beach, Recr., v. Mizner, Exr., supra, for the proposition that where one is required to do an act as a prerequisite to accrual of a cause of action, all persons, whether under disability or not, are bound thereby unless excepted from the operation of the statute by a saving clause.

Our attention has been drawn to the fact that the plaintiff does not seek an order granting authority to present a claim hut prays that the executrix be required to consider and either allow or disallow the claim.

We must pass upon the averments of the petition in the most favorable light to the pleader and, if the facts pleaded justify an order of the court granting leave to present a claim to the administrator, such relief could be granted even though not specifically prayed for.

We are satisfied that, notwithstanding the harshness which apparently attends the judgment under review, there is no cause of action stated hy the plaintiff in her second amended petition and that the first ground of the demurrer was properly sustained. This is sufficient to require an affirmance of the judgment.

The second ground of the demurrer would only have application if the petition stated a good cause of action. No cause of action being stated, either as to the right to have the final account of the executrix opened, or, if done, to present her claim, or to have it allowed or- disallowed, there can be no misjoinder of causes of action. The second ground of the demurrer is immaterial and need not be considered.

Judgment affirmed.

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


author: Middleton, J.

text:
    McCauley, Appellant, v. Ash et al., Appellees.

      (No. 1042
    Decided January 11, 1954.)

      Messrs. Light & Siferd, for appellant.

      Messrs. Meredith & Meredith, for appellees.
   Middleton, J.

This cause is here on appeal on questions of law and fact from a judgment of the Court of Common Pleas of Allen County.

The plaintiff seeks an injunction enjoining the Building Inspector of Lima, Ohio, from issuing a permit to the defendants, Laverne Kelly, Helen Kelly and Margaret Kelly, authorizing certain structural extensions to their property, and enjoining said defendants from making the structural changes as set forth in the petition.

The plaintiff states in her petition that Charles W. Ash is the duly appointed, qualified and acting inspector of buildings under the zoning ordinance of the city of Lima; that plaintiff is the owner of certain described property in the city of Lima, which is improved by the erection thereon of a residential structure consisting of four units or apartments; that the defendants Kellys are the owners of real estate which is improved by a residential structure; and that such property is adjacent to and immediately east of the property of the plaintiff.

The petition sets forth that at all times mentioned in the petition there was in .full force and effect in the city of Lima, a zoning ordinance regulating and restricting the location of buildings and other structures; that the property described in the petition is located in a section of said city which is described .by the ordinance as Class 2 Residential or Multiple Family Housing District; and that section 17 of such ordinance reads as follows:

“The least dimension of a side yard shall not be less than five feet, provided that in the case of any building more than two and one-half stories in height, such least dimension shall not be less than one-sixth of the height of the building. Provided that a dwelling house existing on June 6, 1949, and having side yards that do not comply with the provisions of this section may be extended along such existing side yard lines.”

Plaintiff avers that the defendants Kellys are in the process of adding an addition to the residence owned by them on the property described in the petition, and as a part of said structure, an extension westward to within approximately 11 inches of the east line of the premises of the plaintiff, in violation of the zoning ordinance; and that these defendants will complete such extension and the defendant Charles W. Ash, as building inspector, will issue a permit for the extension unless restrained by the court.

Plaintiff avers that the proposed structure will withdraw from plaintiff’s apartment building light and air and substantially reduce its market value.

To this petition the defendants Kellys filed an answer in which they interpose five defenses, the pertinent parts of which may be briefly stated as follows:

The first defense admits the ownership of the properties of the plaintiff and defendants; admits the described property is located in the zoning district stated in the petition; admits the existence of the zoning ordinance, as alleged; and denies all allegations of the petition not specifically admitted.

The second defense describes the structures erected on both plaintiff’s and defendants’ property, and avers that early in 1951 the defendants began to remodel their residence and that plaintiff knew of defendants’ plan; that after completion of the remodeling in the rear of defendants’ property in June of 1951 the defendants applied for a permit from the inspector of buildings to erect a stairway along the west side of their frame house; and that plans for the same were submitted and on July 2, 1951, said building inspector issued to the defendants a remodelling permit authorizing the erection of said stairway.

In said defense it is averred that the zoning ordinance of the city of Lima creates a board of adjustment consisting of five citizens whose authority and power is to vary the provisions relating to buildings and location in cases where a literal enforcement of the provisions of the ordinance relative to zoning will work a hardship.

The defendants filed with the board of adjustment a petition for modification of the rules relative to side yards as relating to the property of the defendants Kellys, and after hearing upon the application before the board, the defendants were granted the right and authority to finish the stairway as contemplated and as originally planned.

By way of a third defense the defendants aver that plaintiff is estopped from claiming the relief prayed for; that defendants have expended many hundreds of dollars in the construction of the stairway; and that the same was substantially completed before plaintiff took any steps for injunctive relief.

By way of a fourth defense, defendants say that the dwelling house and apartment house mentioned in plaintiff’s petition were both constructed prior to June 6, 1949; that in view of the fact that plaintiff or her predecessor in title built up to or near the line or over the line existing between the property of the plaintiff and that of the defendants, the ordinance allows defendants to do the same thing; that if it should be held that the ordinance does not allow these defendants to do the same thing as plaintiff or her predecessors in title, the ordinance is unreasonable, violates the Constitution and deprives the defendants of property rights; and that such ordinance in such event is unconstitutional.

In their fifth defense, defendants state that the plaintiff has an adequate remedy at law and that she is not entitled to the remedy of injunction.

To this answer the plaintiff filed an amended reply in which she denies all allegations of the answer other than the admissions therein, and says further that the board of adjustment had no power or authority to grant the defendants the right to violate the zoning ordinance, and if any such power and authority was vested in said board, it abused its discretion in exercising the same.

From the evidence presented at the hearing of this cause, the court finds the following facts established:

Charles W. Ash is the duly qualified and acting inspector of buildings under the zoning ordinance of the city of Lima. Plaintiff is the owner of the property described in the petition and the property is improved, as therein set out. The defendants, Laverne Kelly, Helen Kelly and Margaret Kelly, are the owners of the property stated in the petition, and that property is improved as therein set ont. At all times mentioned in the petition there was and still is in full force and effect in the city of Lima, a zoning ordinance regulating and restricting the location of buildings and other structures. The property in question is located in what is defined by said ordinance as Class 2 Eesidential or Multiple Family Housing District. Section 17 of the ordinance, applicable to structures in class 2 district, reads as follows:

“The least dimension of a side yard shall not be less than five feet, provided that in the case of any building more than two and one-half stories in height, such least dimension shall not be less than one-sixth of the height of the building. Provided that a dwelling house existing on June 6, 1949, and having side yards that do not comply with the provisions of this section may be extended along such existing side yard lines.”

The defendants Kellys are in the process of adding an addition to the residence owned by them on lot 4523, and, as a part of such structure, an extension westward to within approximately 11 inches of the east line of the premises of the plaintiff, in violation of the provisions of said ordinance.

The defendants Kellys, prior to the remodeling complained of, applied for a permit from the inspector of buildings to erect the stairway in question along the west side of defendants’ property. Plans for the improvement were submitted to the building inspector and said building inspector issued to the defendants a permit authorizing the erection of such outside stairway.

Subsequent thereto, the building inspector ordered construction on the stairway to cease, and caused the arrest of the defendant Margaret Kelly, charging her with the violation of the city building code by the erection of said stairway. Defendant Margaret Kelly was acquitted of said charge, and, thereafter, the defendants Kellys filed with the board of adjustment a petition for modification of the rule relative to side yards, as relating to the property of the defendants.

The city ordinance of the city of Lima provides for a board of adjustment whose authority and power is to vary the provisions relating to buildings, locations, and the like, in cases where a literal enforcement of the provisions of the ordinance relative to zoning will work a hardship.

A hearing was had upon such application before the board of adjustment, at which hearing both the plaintiff and the defendants appeared in person and by counsel. The board of adjustment, upon hearing, approved defendants’ application for modification, and authorized the defendants to complete the stairway.

The evidence offered at the hearing before the board of adjustment, upon which it based itá order approving the Kellys’ application for modification, does not appear in the record submitted in this court.

The plaintiff denies the authority of the board of adjustment to vary the provisions of the zoning ordinance applying to side yards, but claims if such authority does exist, the board of adjustment abused its discretion in the instant case in approving the application of the defendants for modification.

The jurisdiction and powers of the board of adjustment are found in section 26 of the zoning ordinance of the city of Lima,, and are, in part, as follows:

“The board as herein specified shall have power on application in a specific case where owing to special conditions a literal enforcement of the provisions of this ordinance will result in unnecessary hardship to so vary the application of such provisions in harmony with the public interest and with the spirit of this ordinance that substantial justice shall be done * *

The case of L. & M. Investment Co. v. Cutler, 125 Ohio St., 12, 180 N. E., 379, 86 A. L. R., 707, is directly in point and is decisive of the question raised in the instant case. Paragraph two of the syllabus of that case is as follows:

“Under the provisions of a Cleveland zoning ordinance a board of appeals was created with power to hear and decide all questions brought before it by appeal from the refusal or granting of permits by the commissioner of buildings, with power also to reverse, affirm or modify any decision appealed from, and to make such order, requirement or decision as in its opinion ought to be made under the circumstances. Under Section 1281-23 (b) of the same ordinance it is provided ‘where there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of the provisions of this subdivision, the board of appeals shall have power in a specific case to vary the application of any such provision in harmony with the general purpose and intent of the subdivision so that the public health, safety, morals and general welfare may be secured and substantial justice done.’ Held:
“Such zoning ordinance, by conferring upon said board as an administrative agency and as a fact-finding body the power of determining whether, in specific cases, practical difficulties or unnecessary hardships would result to the owner’s zoned property,- and, if so determined, the power to vary the strict application of the provisions of the zoning ordinance thereto, does not constitute a delegation of legislative power within the purview of the constitution. The board, upon finding that such difficulties or hardships would ensue in applying the strict letter of the ordinance provisions, may vary the application in accordance with the provisions of snch snb-section, and may especially do so if it finds and assigns specific and adequate reasons therefor.”

As the record in the instant case fails fo disclose the evidence submitted before the board of adjustment, it must be presumed that the board of adjustment had before it sufficient and appropriate evidence to support its finding.

“The general rule that in the absence of evidence to the contrary, public officers will be presumed to have properly performed their duties and not to have acted illegally, but regularly and in a lawful manner, is usually applied when regulations, decisions, or orders of administrative officers are challenged in court. Under this rule, decisions of zoning boards of appeals, review, or adjustment as to exceptions of variations in the application of zoning regulations are regarded as presumptively fair, reasonable, and correct, so that the burden is upon one complaining thereof to show that the board acted improperly.” 58 American Jurisprudence, 1074, 1075, Zoning, Section 256.

It is the opinion of the court that the board of adjustment, under the zoning ordinance, had authority to vary the provisions of the zoning ordinance applying to side yards, and that it did not abuse its discretion in approving the application of the defendants for a modification thereof.

The court finds that the plaintiff is not entitled to the relief prayed for.

Judgment accordingly.

Younger, P. J., and Guernsey, J., concur.