author: Hornbeok, J.

text:
    Schmidt, Appellee, v. Hummell, Appellant.
    (No. 3981
    Decided June 6, 1947.)

      Mr. Thomas W. Applegate, for appellee.

      Mr. Isadore L. Margulis, for appellant.
   Hornbeok, J.

This is an appeal on questions of law from a judgment of the Municipal Court of Columbus,' for plaintiff, appellee herein, for $13.33, and costs, for rental, and an order of restitution of premises to the plaintiff.

Four errors are assigned:

1. In overruling defendant’s motion for dismissal and entering judgment in his behalf at the close of plaintiff’s evidence and at the close of all the evidence.

2. The verdict and judgment of the Municipal Court are contrary to law.

' 3. That the verdict was in direct conflict with the defendant’s constitutional rights.

4. That no cause of action existed at the time of the trial on behalf of the plaintiff against the defendant.

The action was for forcible detention of premises owned by the plaintiff and occupied by the defendant as a tenant from month to month. The plaintiff, desiring to secure possession of the premises which he had acquired prior to October 20, 1942, requested authority from the" Office of Price Administration to institute his action in eviction, which authority was granted. Notice, of date October 31, 1946, was given to the defendant by the plaintiff, stating that he desired possession of the premises on and after ten days from October 31, 1946, pursuant to O. P. A. regulations. On the 29th of October, 1946, defendant’s counsel mailed to the plaintiff a money order payable to bim in the sum of $40 and therewith a letter to the effect that the money order was for rent for the month of November 1946. On October 31, 1946, plaintiff’s counsel acknowledged receipt of the money-order and stated that be bad been retained to obtain possession of tbe property occupied by tbe defendant, that tbe plaintiff desired to terminate defendant’s, tenancy, and that the money order “is not accepted as rent by Mr. Schmidt and is being-retained by me as evidence in any future legal action wbicb might be necessary.” Thereafter, on November 12, 1946, plaintiff instituted bis action, in tbe first cause of wbicb he sought restitution of tbe premises and in tbe second cause, money judgment of $13.33, tbe amount of rent that bad accrued from November 1st to tbe '10th of November, 1946.

To tbe petition defendant answered by way of general denial and tbe cause came on for trial on issue thus drawn. Upon tbe record there is little or no dispute in tbe evidence and there is presented tbe question whether plaintiff is entitled to a judgment on either or both causes of action.

Tbe evidence discloses that tbe money order was sent, and received according to tbe respective claims of tbe parties, but it was not proffered at tbe trial nor was it tendered back to tbe defendant.

It is tbe claim of plaintiff that no issue was, or could be, made whether tbe receipt and retention of tbe money order was a payment of rent or affected or extinguished plaintiff’s right to restitution of tbe premises because payment was not pleaded. This contention, no doubt, is correct as to tbe second cause of action for money judgment. It is incorrect as to tbe first cause of action.

Tbe question for tbe determination of the trial court upon tbe first cause of action was whether ’the plaintiff was entitled to tbe possession of tbe premises as of tbe date of tbe notice to leave them. Tbe clearanee of the O. P. A. merely authorized the plaintiff to proceed in his action to eject the defendant and did not relieve him in any particular of the obligation to make full proof of his right to the possession of the premises. The letter from the area rent attorney tb a judge of the Municipal Court clearly states this obligation in this language:

“It should be understood that plaintiff must prove the facts set forth in his notice of eviction before he is entitled to judgment in his favor. ’ ’

Any evidence which would be probative on the issue as to the respective rights of the parties to the possession of the premises was competent and admissible. No answer is required in a forcible detention action but if one be filed it does not necessarily restrict the introduction of any defensive matter. It is stated in the first paragraph of the syllabus in Paducah Home Oil Co. v. Paxton, 222 Ky., 778, 2 S. W. (2d), 650, 56 A. L. R., 797:

“On a plea of not guilty in forcible detainer proceeding, all defenses, both legal and equitable, may be made.”

That statement, in Ohio as to the Municipal Court, should be modified to include “legal defenses only” because that court does not have equitable jurisdiction. See, also, Farmer v. Pitts, 108 Neb., 9, 187 N. W., 95, 24 A. L. R., 719.

Although the basic cause for the plaintiff’s demand for his property was that he had the right to occupy it under O. P. A. regulations, it is manifest that if he received and accepted payment of rent, as such, for the period covered in his action and by his notice to leave the premises, he could not be .heard to say that he was entitled to their possession. The condition under which the money order was sent to him two days before his notice to leave was definitely set out in the letter from defendant’s counsel. The conditions under which the money order was accepted were, in the first instance, set out in the letter from plaintiff’s counsel in which he expressly stated that plaintiff was not accepting the money as rent but for evidential purposes only.

It is difficult to appreciate for what purpose the money order, tendered as it was before the rent was due, could have been admissible on any issue before the court. However, conceding that it may have been held until the trial and there offered as evidence, the purpose of the plaintiff to no longer retain^ it and not to accept the benefits thereof, should have been expressed at the trial. This was not done and at no time has the plaintiff tendered the money order back to the defendant.

Nor has there been, at any time, objection made to the medium of payment. In this situation the. offer ,was equivalent to a tender in lawful money. 40 American Jurisprudence, 761, “Payment,” Section 68; Thompson v. Crains, 294 Ill., 270, 128 N, E., 508, 12 A. L. R., 931; Gaunt v. Alabama Bound Oil & Gas Co., 281 F., 653, 23 A. L. R., 1279, annotation at page 1288; Minsky v. Zieve, 255 Mass., 542, 152 N. E., 41, 51 A. L. R., 391.

The acceptance and retention of the money order by plaintiff has made it impossible for the defendant to recover back the money which was paid to secure it and the plaintiff only can control its disposition. Having retained it at all times, it must be held that it is solely retained as rental covering the period included in the judgment for restitution of the premises. The only logical conclusion to be drawn is that this money was payment for the month of November. This being true, the defendant and not. the plaintiff was entitled to the possession of the premises on November 10, 1946.

“Except where the instrument is shown to be worthless or to have been lost or destroyed, it is a condition to recovery that the creditor surrender to the debtor the instrument taken, so that the debtor may be secure against an action thereon by a bona fide holder, into whose hands the paper may have come.” 40 American Jurisprudence, 762, “Payment,” Section'69.

The specific question raised here has not heretofore been determined in Ohio, or elsewhere, so far as we are able to find, but an analogous principle, even as to payments made after notice, is recognized in an annotation to Barlow v. Hoffman, 103 Colo., 286, 86 P. (2d), 239, in 120 A. L. R., 562. The annotator draws this conclusion:

“The courts are not in accord on the question whether acceptance by the landlord of, or action or distress by him for, rent accruing subsequent to the expiration of the notice to quit, constitutes a revocation or waiver of the notice to quit.

“(1) The great weight of authority holds that it constitutes a waiver.”

Citations are made supporting the note from seven states, the District of Columbia, the United States, England and Canada. Some of the casés hold that payment by the tenant and acceptance by the landlord of rent, even after expiration of a notice by the landlord to quit, and much less during the running of the notice, is not in itself a waiver on the part of the landlord of the’ notice so given, but is merely evidence to be considered in connection with the circumstances of the case. Western Union Telegraph Co. v. Pennsylvania Rd. Co., 120 F., 362; Pillot v. Moss, 72 Ohio App., 492, 53 N. E. (2d), 73.

The last cited case is typical of those wherein the tenant sent a check, or money order, after the notice to quit the premises and where the money order or cheek may be used as evidence as showing payment after default and is in conflict with Wilcke v. Smith, 45 Ohio Law Abs., 555, 68 N. E. (2d), 386. Por a case somewhat like ours, see Hartell v. Blackler, 2 K. B., 161, 10 B. R. C., 478, 123 L. T. N. S., 171, W. N., 95.

• In the instant case, the plaintiff took judgment for the period from November 1st to November 10th, inclusive. The money order tendered before any arrearage, if accepted, paid the rent not only for this period but for all of the month of November. In addition to the judgment covering ten days rent and the money order for the whole month of November, the defendant posted bond, the effect of which was to secure the rent for another period of five months if the judgment was properly entered against him. The retention of the money by the plaintiff under these circumstances can be reconciled only upon the theory that he expects to retain it and this can be done only upon the theory that it is rental for the month of November. •

The judgment on the first cause of action was not supported by the evidence and should have been for the defendant and judgment thereon will be entered in this court for the defendant. • The judgment on the second cause of action will be affirmed.

Judgment accordingly.

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


source: Caselaw Access Project

author: Conn, J.

license: Public Domain

text:
    The State of Ohio, Appellant, v. Wening et al.,
    (No. 4223
    Decided June 2, 1947.)

      Mr. Joel 8. Rhinefort, prosecuting attorney, Mr. Jerome Jesionowshi and Mr. Louis R. Young, for appellant. ,

      Mr. Charles J. McLaughlin, for appellees.
   Conn, J.

This is an appeal on questions of law from a judgment entered by the Court of Common Pleas reversing the finding and judgment of the Municipal Court of the city of Toledo.

The defendants were charged in the Municipal Court, Criminal Division, with malicious destruction of property and arrested upon a state warrant issued on an affidavit wherein it was alleged that defendants “unlawfully, wilfully and maliciously did injure and destroy certain property, to wit: Porch light, front door glass, screen door, of the value of thirty-five dollars * • V» *

At the conclusion of the evidence in the trial court a motion to discharge defendants was overruled and defendants were found guffty and each sentenced to ten days in the county jail and fined $10 and costs.

On appeal to the Court of Common Pleas the judgment of the Municipal Court was reversed for “error in said proceedings” and the defendants discharged.

The specific ground for reversal of the judgment does not appear in the journal entry of the Court of Common Pleas hut our attention has been called to the opinion of the court, reported in State v. Wening, 46 Ohio Law Abs., 340, 69 N. E. (2d), 785, wherein the court held that as the punishment for malicious destruction of property, as provided in Section 12477, General Code, and upon which this prosecution is predicated, may be imprisonment in the penitentiary, the offense is a felony and the jurisdiction of the Municipal Court of Toledo is limited to preliminary examination, and that court is not authorized to hear the case on its merits and enter judgment.

Crimes are broadly classified by statute as felonies and misdemeanors. Those crimes which are punishable by death or by imprisonment in the penitentiary are felonies and all other offenses are misdemeanors. Section 12372, General Code.

Section 12477, General Code, provides as follows:

“Whoever maliciously destroys or injures property not his own, if the value of the property destroyed, or the injury done is-one hundred dollars or, more, shall be imprisoned in the penitentiary not less than one year nor more than seven years, or, if the value is less than that sum, shall be fined not more than five hundred dollars or imprisoned not more than thirty days, or both.”

■Under the mandatory provisions of this section, the offense of malicious destruction of property is a felony where the value of “the property destroyed, or the injury done is one hundred dollars or more” and “if the value is less than that sum,” the offense is a misdemeanor. This section therefore defines two offenses, and provides punishment for either, to wit, a felony and a misdemeanor. It is not a statute prescribing certain acts as felonious and conferring upon the court authority to punish such acts by imprisonment in the penitentiary or jail, as the court might deem proper.

In the instant ease, the value of the property destroyed is alleged to be less than $100, to wit, $35, and therefore the crime charged is a misdemeanor.

The jurisdiction of the Municipal Court of Toledo in misdemeanor cases is the same as that conferred on justices of the peace and police courts. Sections 1579-286 and 1579-298, General Code.

• It follows that the jurisdiction of the Municipal Court in the instant case was not limited to a preliminary examination of the defendants, but that court had the power to determine the guilt or innocence of the defendants and enter judgment accordingly.

The judgment of the Court of Common Pleas is reversed and the cause is remanded to that court with directions to determine any other assignments of error.

Judgment reversed and cause remanded.

Stuart and Carpenter, JJ., concur.


author: Hornbeck, J.

text:
    The Third National Bank & Trust Co., Exr., Appellant, v. Schaefer et al., Appellees.
    (No. 1932
    Decided April 10, 1947.)

      Mr. Clifford R. Curtner, for appellant.

      Mr. Clarence J. Stoecldein, for appellees.
   Hornbeck, J.

This is an appeal on questions of law from a judgment of the Common Pleas Court dismissing plaintiff’s amended petition, after the sustaining of a general demurrer thereto, plaintiff electing to plead no further.

The suit is to enjoin the defendants from reviving a judgment, taken in 1931 under warrant of attorney in a cognovit note, against Paul M. Banker. In brief, the amended petition is grounded on the claim that the judgment which is sought to be revived is void because taken against Paul M. Banker, without personal service upon him, and solely upon the power granted in the cognovit note which was signed, “P. M. Banker.” Plaintiff cites and relies, in part, upon Mansfield Sav ings Bank v. Post, 12 C. D., 577, 22 C. C., 644, affirmed by Supreme Court without opinion, 54 Ohio St., 629, 47 N. E., 1115.

We have carefully examined that opinion. It includes two cases arising upon attachment proceedings which were based on two promissory notes, the second of which was signed by George E. St. John, Wickham & Co. and H. ,C. Post. The court held that, as to the attachment relating to the latter note, the affidavit to support the attachment was erroneous and it reversed the judgment. In that action a supplemental petition had been filed attacking the validity of the judgment on the note as against Halsey C. Post upon warrant of attorney in the note signed by H. C. Post only. The Common Pleas Court- had held against the claim of the invalidity of that judgment from which order a cross-petition. in error was filed. Upon the question presented the court said, at page 651:

‘ ‘ This judgment that is complained of was rendered simply upon this cognovit note, and, it is supposed, by virtue of an alleged power to confess judgment embodied in the cognovit.”

And at page 653:

“Whether these allegations as to what individuals compose the firm, and as to H. C. Post being in fact Halsey C. Post, are true as a matter of fact or not does not matter. The warrant in the note did not -allow the attorney to confess judgment against these individuals, except as they signed.”

The fourth paragraph of the syllabus to the case, in part, is,

“Cognovit notes should be very strictly construed and undér the warrant of attorney to confess judgment, a judgment can be rendered only against the persons designated.”

And it is held further that the judgment against Halsey C. Post is unauthorized. The court relied on the case of Spence v. Emerine, 46 Ohio St., 433, 21 N. E., 866, 15 Am. St. Rep., 634.

It is thus apparent 'that the reversal of the judgment of the court was grounded on the material holding that the judgment on which the attachment proceedings was instituted could not be supported because of the invalidity of the judgment taken on the cognovit note. The affirmance, then, by the Supreme Court has the full implication that the judgment under review, and the reason therefor which we have been discussing, were sound. That action by the Supreme Court is binding upon this court and upon the one question, as to the validity of the judgment against Paul M.. Banker, is controlling and, if there were no other determinative principles, would require a reversal of the judgment. However, if the sustaining of the demurrer may be supported, even though the reason advanced by the trial judge therefor be not sound, the judgment must be affirmed here.

It is basic that equity will not intervene in any cause wherein there is a full, complete and adequate remedy at law. The petition avers that an action was instituted on August 26, 1946, and was pending at the' time the petition was filed, seeking a conditional order of revivor of judgment against plaintiff as executor of the estate of Paul M. Banker, deceased, and a revivor of that judgment. It appears also that the claim of the invalidity of the judgment against Paul M. Banker is based upon the record of the proceedings wherein the cognovit judgment was taken and the void character of that judgment, if it be void, is found upon the face of the record and does not require extrinsic proof. In McAllister v. Schlemmer & Graber Co., 39 Ohio App., 434, 177 N. E., 841, Judge Sherick writing the opinion, the court had under consideration a petition to vacate a judgment and a motion to strike the petition. In discussing.the question presented, the opinion at page 438 cites with approval 2 Freeman on Judgments (5 Ed.), Section 1100,

“ ‘With respect to the judgment itself the extent and character of the defenses which may be received are obviously the same as in actions at law upon judgments. Any defenses which might be made to such an action may generally be made to a scire facias, but no defense can be urged which existed before, the judgment was entered, and might have been asserted in the original action, since this would violate the principles governing res judicata and collateral attack. In other words, it may be urged that the judgment is void,’ if it appears so of record, ‘but not that it is erroneous or irregular.’ * * * ‘It must be shown either that there is no judgment in contemplation of law, or that for some reason it has ceased to be operative.’ ”

In 15 Ruling Case Law, 659, it is said:

“As a general rule a judgment by confession is not reviewable either by appeal or writ of error, but courts of law exercise equitable supervision over judgments entered upon warrants of attorney, and will, upon motion, stay, modify or vacate them, and award issues for the trial of facts, as the ends of justice may require. Where the objection arises upon -the face of the record, this is the only remedy; but when it is founded upon facts not appearing by the record,, and which must be established by parol or other extrinsic evidence, then a suit in equity may be maintained.” Citing McIndoe v. Hazelton, 19 Wis., 567, 88 Am. Dec., 701.

In 23 Ohio Jurisprudence, 1103, McAllister v. Schlemmer & Graber Co, supra, is cited to support the proposition that in a proceeding to revive a dormant judgment it may be urged defensively that the judgment is void.

Plaintiff having such defense available to it at law precludes a court on the chancery side assuming jurisdiction to grant the relief sought in the injunction proceeding.

The judgment will -be affirmed.

Judgment affirmed. ;

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


author: Ross, J.

text:
    City of Cincinnati, Appellee, v. Levine, Appellant.
    (No. 6792
    Decided June 16, 1947.)

      Mr. John D. Ellis, city solicitor, Mr. Robert J. Paul and Mr. Ralph E. Gors, for appellee.

      Mr. Renjamin S. Schwarts and Mr. Harry M. Wasserman, for appellant.
   Ross, J.

This is an appeal on questions of law from a judgment of the Court of Common Pleas affirming a conviction of the defendant in the Municipal Court of Cincinnati.

The affidavit, presented as a predicate for the prosecution of defendant, contained the following language :

“Benjamin F. Schaefer, being first duly cautioned and sworn, deposeth and saith that one Abe Levine, being a pawnbroker, on or about the 3rd day of July, 1946, at and in the city of Cincinnati, county of Hamilton, and state of Ohio, did unlawfully, wilfully sell to one Fred Davis, a certain firearm, to wit: 25 caliber Walthers automatic pistol, such weapon being a firearm other than a shotgun or rifle manufactured for hunting and sporting purposes, contrary to and in violation of Section 718-8 of the Code of Ordinances of the city of Cincinnati.”

Section 718-8 of the Code of Ordinances of the city of Cincinnati provides:

“Restrictions on Pawnbrokers. If a dealer licensed under the provisions of Section 718-7 carries on the business of pawnbroker or secondhand dealer, it shall be unlawful for him to sell any firearms or dangerous weapons except shotguns and rifles of regulation size manufactured for hunting and sporting purposes only. ” '

The- evidence showed conclusively that the defendant was a licensed pawnbroker, bnt was not a licensed 11 retail dealer in firearms.”

Section 718-7 of tbe Code of Ordinances of tbe city of Cincinnati provides:

“Dealers in Weapons to be Licensed. Every retail dealer in firearms, ammunition for firearms, or dangerous weapons, shall pay a license fee of fifty dollars ($50) per annum, and such license may be granted by the city manager upon written application of any such dealer. Where a dealer deals only in shotguns and rifles of regulation size manufactured for .hunting and sporting purposes only, and the ammunition therefor, the annual license fee shall be the sum of ten dollars ($10). The application shall set forth the place of business of the applicant, the nature of the business, the names of all the partners, if. a partnership, and the names of all officers, if a corporation. The city manager may authorize the city treasurer to issue a license to the applicant, if he is satisfied that the applicant is of good repute in the conduct of such business, and that the conduct of such business will not be detrimental to the public safety and welfare.”

It is argued by the prosecution that the defendant, being á pawnbroker, 'could not sell a small firearm, and that he is guilty of an offense, under Section 718-8 of the Ordinances of the city of Cincinnati, because he did so. The evidence sustains such sale.

However, the ordinance specifically states that the offense only occurs where a “dealer licensed under the provisions of Section 718-7” makes the proscribed sale when he is carrying on also the business of a pawnbroker. The prosecution was bound, therefore, to prove (1) that the defendant was a licensed retail dealer in firearms, (2) that he was a pawnbroker or secondhand dealer, and (3) that he sold a small firearm. It is apparent that the prosecution failed to prove the first element. '

■ In 12 Ohio Jurisprudence, 55, Section 12, it is stated:

“A statute defining a crime or offense cannot be extended, by construction, to persons -or things not within its descriptive terms” though they appear to be within the reason and spirit of the statute. Nor can a penal statute be extended by implication to cases not falling within its terms. Persons cannot be made subject tom statute by implication. Only those transactions are included which are within both its spirit and letter; and all doubts in the interpretation- of a statute are to be resolved in favor of the accused. An act, to be punishable as a crime in Ohio, must be specifically embraced within the terms of some statute.” See, also, City of Cleveland v. Jorski, 142 Ohio St., 529, 53 N. E. (2d), 513.

It may be that the city council intended to cover the instant situation. The outstanding consideration is that the ordinance, used as a predicate for the prosecution, does not cover the facts proved, and there can be no conviction where it is necessary to extend the scope of the ordinance by implication to cases not falling within its terms.

For these reasons, the judgment of the Court of Common Pleas and that of the .Municipal Court are reversed, and judgment is hereby rendered for the defendant.

Judgment reversed.

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


author: Middleton, P. J.

text:
    Diemer, Appellee, v. The Putnam County Farmers Mutual Ins. Co., Appellant.
    (No. 355
    Decided July 15, 1946.)

      Messrs. Unverferth é Unverferth, for appellee.

      Mr. Claud L. Becker, for appellant.
   Middleton, P. J.

This cause comes into this court on appeal on questions of law from the Common Pleas Court of Putnam county.

The plaintiff filed his action against defendant, The Putnam County Farmers Mutual Insurance Company, to recover on a fire insurance policy issued by the defendant, for the loss of certain 'grain claimed to have been destroyed by fire. Judgment was asked in the sum of $1,140.

Answer was. filed by the defendant which admitted its corporate capacity and place of business, as set forth in the petition, and denied all other allegations of the petition.

Thereafter, the court rendered a. decision which states that on “May 23, 1945, this matter was submitted to the court on an agreed statement of facts, for the purpose of having the court construe the policy of insurance involved in this case, and to determine the law governing the facts in this cause. And the court being fully advised in the premises finds that unde,r the law applicable to the facts as stated in the agreed statement of facts, the plaintiff is entitled to recover from .the defendant under the policy of insurance submitted to the court, the loss sustained by the plaintiff on the wheat, rye, clover, straw and alfalfa, as alleged in the petition, the full value of such loss to be determined at some future date by this court, either by jury, or by the court if a jury is properly waived. To all of which judgment and finding, defendant by its counsel accepted,”

Subsequent thereto, a motion for new trial was filed which asked the court “to vacate and set aside the decision of the court herein, for new trial.”

The court overruled the motion, which overruling was journalized on July 25, 1945, as follows:

“This 16th day of July, 1945, this cause came on to be, and was heard on the motion for a new trial and for a rehearing from the decision of the court rendered by it in the construction of the insurance policy involved in this case; and was submitted to the court without argument. The court finds that said motion is not well taken and should be and hereby is overruled.

“It is therefore ordered and considered by the court, that the plaintiff recover from the defendant, The Putnam County Farmers Mutual Insurance Comr pany, of Ottawa, Ohio, the value of the wheat, rye, wheat straw, and rye straw, clover and alfalfa, standing and growing on the .premises described in the petition belonging to plaintiff, said sum recoverable to be ascertained and determined by a jury duly empaneled and sworn, or by the court if and when a jury is waived by all parties interested in this cause.

“To all of which finding and judgment the defendant by its counsel, then and there, here and now except, and the amount of the penalty of the appeal bond, if one is required, is fixed at $200.”

From that order, notice of intention to appeal was filed.

The court must first determine whether, it has jurisdiction to entertain the appeal. It follows that the court does not have jurisdiction unless the order appealed from is a judgment within the meaning of Section 6 of Article IV of the Constitution of Ohio, that is a judgment or final order as defined in Sections 11582 and 12223-2, General Code, which are as follows:

“Section 11582. A judgment Is the final determination of the rights of the parties in action. A direction of a court or judge, made or entered in writing and not included in a judgment, is an order.”

“Section 12223-2. An order affecting a substantial right in an action, when in effect it determines the action and prevents a judgment, or an order affecting a substantial right made in a special proceeding, or upon a summary application in an action after judg-ment, or an order vacating or setting aside a general verdict of a jury and ordering a new trial, is a final order which may be reviewed, affirmed, modified, or reversed, with or without retrial, as provided in this title.”

. It will be observed that no damages were assessed. On the contrary, the court’s order provides that the sum recoverable is to be ascertained and determined by a jury duly impaneled and sworn, or by the court if and when a jury is waived by all parties interested in this cause.

The action was not a special proceeding and the order of the court did not determine the action between the parties or prevent a judgment,' the court did not render any judgment upon which any writ could issue, and the court did not finally determine any matter which would be res judicata in any subsequent proceedings in the case. Further proceedings were necessary before the rights of the parties could be finally determined.

The order of the court made in this cause is nothing more than an interlocutory order from which no appeal lies.

Holding this view, the court does not have jurisdiction to entertain the appeal and the same is dismissed.

Appeal dismissed.

Jackson and Guernsey, JJ., concur.


author: Carpenter, J.

text:
    Bates, Appellant, v. Flath, Appellee.
    (No. 4174
    Decided February 3, 1947.)

      Mr. Clarence P. Ducey and Mr. Joseph C. Gribbin, for appellant.

      Messrs. Welles, Kelsey, F.uller, Cobourn d> Earring-ton, for appellee.
   Carpenter, J.

Plaintiff was a passenger in an automobile which, collided with the automobile of defendant at a highway intersection, and in this action she seeks damages .for personal injuries sustained. The answer admitted the collision, and that plaintiff was an occupant of the automobile.' The verdict and judgment were for the defendant, and this appeal on questions of law followed.

At the outset of the evidence concerning the collision, plaintiff called the defendant for cross-examination. Objections were made and sustained to all questions about what happened or what the defendant did as he approached the intersection. To illustrate, some of the questions were:

“Did your car skid before the collision with the Bates car?”

“When did you realize there was going to be a - •collision between your car and the Bates’ car?”

“How fast were you driving at the time of the collision?”

“Did you see the plaintiff’s car before you collided with it?”

The court justified its action in sustaining objections to those and other such questions by saying:

“It is your own case. You cannot go into it on cross-examination of the adverse party.”

Section 11497, General Code, reads:

“At the instance of the adverse party, a party may be examined as if under cross-examination, either •orally, or by deposition, like any other witness. * * * The party calling for such examination shall not thereby be concluded but may rebut it by counter testimony. ” ■

Thus the plaintiff was given a positive right, and if the admissions of the defendant in any degree contributed to prove plaintiff’s case, she was entitled to such examination and its denial to her was prejudicial error.

Speaking of our practice under this statute, Judge Stephenson, in the opinion in Clark v. Stewart, 126 Ohio St., 263, 270, 185 N. E., 71, said:

“This was cross-examination of a party and it is not error for the trial court to indulge counsel in a liberal scope, under such circumstances, if the testimony sought to be adduced by the questions has even a remote tendency to prove or disprove any issue made by the pleadings. ’ ’

The plaintiff in the instant case gave up further effort to cross-examine the defendant and proceeded with her other witnesses.

Other errors incident to the trial and the charge to the jury are assigned, but in view of the fact that the judgment must be reversed and a new trial had when the record will be different than this one, the court deems it unnecessary to determine such other assigned errors.

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

Judgment reversed.

Stuart and Conn, JJ., concur.


author: Hurd, P. J.

text:
    City of Cleveland, Appellant, v. Village of Cuyahoga Heights et al., Appellees.

      (No. 20692
    Decided June 16, 1947.)

      Mr. Lee C. Howley, director of law, and Mr. James M. McSweeney, for appellant. '

      Messrs. Walter <& Haverfield, for appellees.
   Hurd, P. J.

This is an action for injunction, whereby plaintiff, city of Cleveland, appellant herein, seeks to restrain defendants, village of Cuyahoga Heights et al., appellees herein, from connecting with and discharging sewage into the southerly interceptor sewer constructed and maintained by the city of Cleveland through the village of Cuyahoga Heights. The Court of Common Pleas denied the injunction and dismissed the petition, and the case is now in this court on trial “de novo,” having been submitted by agreement on the record rpade below.

In the interests of brevity, the city of Cleveland and the village of Cuyahoga Heights will hereinafter be designated as the “city” and the “village” respectively.

When the case came to this court on appeal, the village had completed the work of constructing a sewer within its territorial limits, connecting with the southerly intercepting sewer of the city, which latter sewer was located in the village. By stipulation of the parties it was agreed that the village would not attempt to discharge sewage into the city’s interceptor until the determination of the case in this court.

At the conclusion of oral arguments in this case an application was made hy counsel that the court view the premises in a body. That application was granted and the members of the court, together with counsel and the engineers respectively of the city and the village, joined in an inspection of the property in the' village where the sewage disposal plant of the city is located.

While a number of issues were raised and decided in the Common Pleas Court it is conceded now that the sole question to be determined in this- court is the validity of a certain contract by and between the city and the village of Newburgh Heights, dated August 11, 1916, to the rights and liabilities of which contract the village of Cuyahoga Heights succeeded by reason of proceedings in 1919 whereby the territory now comprising the village of Cuyahoga Heights was detached from Newburgh Heights. The provisions of the contract in controversy are as follows:

“First: That the village of Newburgh Heights, hereby grants to the city of Cleveland full permission and authority to construct an intercepting sewer and to convey sewage therein upon and along one of the following routes, as said city of Cleveland may deter-: mine, to wit:

* * * * *

“C. The village of Newburgh Heights is hereby given the right to connect, at its sole cost and expense, any and all of its present or future sanitary sewers with said intercepting sewer, or with any portion of the city’s intercepting sewer now constructed, by means of said manholes and said openings as shown on the said map hereto attached, and to discharge all of its present and future sanitary sewage into said intercepting sewer, subject only to the limitations hereinafter set forth, and said sewage shall be disposed of by said city of Cleveland in like manner as ■other sewage conveyed through said intercepting sewer without cost or expense to the village of New-burgh Heights.

“Third: In the event that the sewage conveyed through said intercepting sewer should be disposed ■of at any future time by the city of Cleveland, at any point within the village of Newburgh Heights in a manner objectionable to the public authorities of said village, and the disposal of said sewage within the said village should be permanently prevented by said village by court proceedings or otherwise, then the future right of the village to discharge any sewage in said intercepting sewer now built as provided in subparagraph ‘C’ shall thereupon cease and determine.”

It is the claim of the city that the contract is void and against public policy, because by its terms the legislative officers of the city surrender for all time its free, legislative authority; because it grants a perpetual property ‘right in the village to have its sewage disposed of through the southerly intercepting sewer free of charge, and as a burden on the taxpayers of the city and is, therefore, ultra vires; and that the contract fails because no measurable consideration moved to the city for the granting of the right claimed by the village.

The record in this case is volnminons and we think it unnecessary to detail at length the conduct of the parties with respect to the contract in question. For the purpose of this opinion we think it is sufficient to state that the record herein discloses that for a period of approximately 30 years from the date of the contract in 1916 to the date of the filing of the original petition herein, on July 23, 1946, the parties have continuously recognized and discharged their mutual obligations under the contract. ,

The city has enjoyed the benefits of the contract (1) by the operation of its southerly interceptor sewer through the, territory of the village and (2) by the construction of its sewage disposal plant within the village in 1926 and by the maintenance, operation and-expansion thereof to take care of sewage in an ever-increasing volume since that date. Also the record shows that all the sludge produced in the city’s easterly sewage disposal plant along Lake Erie is pumped to the southerly disposal plant in Cuyahoga Heights, and is there treated and, disposed of by the city.

It is our opinion that the use of this land for sewage disposal purposes has imposed and continues to impose upon the village and its inhabitants, a substantial continuing burden, even though the land used is owned by the city. The disposal plant installed in the village with its receiving and concentration tanks, sludge digestion and storage tanks, sand-beds for drying the digested sludge and other similar processes constitutes a burden of nuisance proportions which renders the entire area and the land adjacent to it practically worthless for any other useful purposes.

Were it not for the agreement in question and the permits granted by the village in pursuance thereof, in our opinion such a burden could not be successfully imposed upon the village or its inhabitants against their will.

As late as 1938 the city recognized and affirmed its obligations under the contract when it adopted an ordinance fixing rates to be charged to other adjoining municipalities for discharging sewage into its sewerage system.

Section 2 of the ordinance is as follows :

“The provisions of this ordinance shall not impair' the obligation of the city of Cleveland to furnish without charge to the village of Cuyahoga Heights the sewage treatment facilities of the city of Cleveland in accordance with an existing agreement entered into as a part of the consideration for permitting the loOation of the southerly sewage treatment works ivithin the limits of the territory now included in Cuyahoga Heights(Emphasis ours.)

In many other instances, directly and indirectly, the city has recognized its obligations under the contract during the period from 1916 to 1946 until the dispute occurred in the instant case.

The city does not here claim that it was without authority to enter into an agreement with the predecessor in interest of the village for the extension of its sewerage system through the territory of the village but that it was without authority to agree to contract for the disposal of the sewage of the village, free of charge in consideration of the benefits accruing to it from the agreement.

It is well settled that a municipal corporation has the power to make and enter into contracts which are. necessary or proper to enable it to perform its functions.

, See among others, the following authorities: 3 Mc-Quillin, Municipal Corporations (2 Ed., Revised), 1098, Section 1269; Cass v. Dillon, 2 Ohio St., 607, at page 622.

Section 4, Article XVIII, of the Ohio Constitution adopted in Í912, grants the right to municipalities to acquire, construct, own, lease and operate public utilities within or without their corporate limits as follows:

“4. Any municipality may acquire, construct, own, lease and operate within or without its corporate limits, any public utility the product or service of which is or is to be supplied to the municipality or its inhabitants, and may contract with others for any such product or service.”

That section of the Constitution is self-executing and cannot be limited by statute, nor does it need statutory enactment to give it life. Ricketts v. Mansfield, 43 Ohio App., 316, 183 N. E., 181; Priest v. Wapakoneta, 24 Ohio Law Abs., 214, 32 N. E. (2d), 869; Kuertz v. Union Gas & Elec. Co., 27 N. P. (N. S.), 221.

Under the above stated elementary principle of power of municipal corporations to contract, a municipality' clearly has the power and authority to contract with other municipalities on such terms as the parties deem reasonable in order to exercise the powers granted to them by the Constitution of Ohio.

The construction and maintenance of sewers, drains and sewage disposal works are functions expressly conferred upon municipal corporations by the statutes of Ohio. Section 3616, General Code, provides' that all municipal corporations shall have the general powers mentioned in Division II, Chapter I, of the General Code, and among the general powers there enumerated is the power set forth in Section 3647, General Code, as follows:

“To open, construct and keep in repair sewage disposal works, sewers, drains and ditches * * *.”

And Section.3939, General Code, provides in part:

“Each municipal corporation in addition to other powers conferred by law shall have power:

* * * # *

“(10) To construct sewers, sewage disposal works, flushing tunnels, drains and ditches.”

That expressly granted power to construct sewers, drains and sewage disposal works carries, by necessary implication under the principles above set forth, full power to make and enter into contracts necessary' or proper for the exercise of such power, unless such contracts are prohibited by statute or are against public policy. In the exercise of its authorized functions and powers, a municipal corporation may, unless expressly prohibited by statute or charter, acquire or contract for the acquisition of land or rights in land located outside of its corporate limits. See 3 McQuillin, Municipal Corporations (2 Ed., Revised), 978, Section 1210. Thus, ,a general power to construct sewers empowers a municipal corporation to acquire and to contract for the acquisition of sewer outlets or sewer rights outside its corporate limits, even though the statute conferring the power to,construct sewers is silent on the subject of acquiring or contracting for land or rights' therein outside its corporate limits. See among others, the following authorities: 4 McQuillin, Municipal Corporations (2 Ed., Revised), 403, Section 1551; Minnesota & M. Land & Improvement Co. v. City of Billings, 111 F., 972 (C. C. A. 9); McBean v. City of Fresno, 112 Cal., 159, 44 P., 358, 53 Am. St. Rep., 191, 31 L. R. A., 794; Langley v. Augusta, 118 Ga., 590, 45 S. E., 486; Callon v. City of Jacksonville, 147 Ill., 113, 35 N. E., 223; Coldwater v. Tucker, 36 Mich., 474, 24 Am. Rep., 601; City of New Brunswick v. Borough of Milltown, 135 N. J. Eq., 310, 38 A. (2d), 288.

The city has cited many cases in support of its position. Principal reliance is based on the cases of Cleveland v. Edwards, 109 Ohio St., 598, 143 N. E., 181, 37 A. L. R., 1352; City, ex rel. Diehm, v. Lakeview Cemetery Assoc. (Common Pleas Court, Cuyahoga County, unreported); Ericksen v. City of Sioux Falls, 14 N. W. (2d), 89.

We have examined those cases carefully and find that the facts are not analogous to the facts of the instant case. It would lengthen this opinion unduly to discuss in detail those and other cases cited by the %city. A digest of all of those cases discloses in each instance distinguishing features of fact which must necessarily exclude them as authority in our determination of the issues here presented.

In an able opinion filed in this case by McNamee, J., of Common Pleas Court, there is a discussion of the cases of New Brunswick v. Milltown, 135 N. J. Eq., 310, 38 A. (2d), 288; McNemry v. Bellevue Borough, 301 Pa. St., 568, 152 A., 563. In commenting on those cases, Judge McNamee said:

“* * * In New Brunswick v. Milltown, 135 N. J. Eq., 310, 38 A. (2d), 288, the court held that evidence showing an increased annual cost of $1,500 to the city for the disposal of sewage of the village did not warrant the cancellation of the contract by which the city had agreed to dispose of such sewage free of expense to the village. In connection with this the court said:

“ ‘That the agreement as thus entered into now entails greater expense and renders performance of the same more burdensome to the complainant than contemplated at the time it was made is not a sufficient ground for relief by way of cancellation.’ ” (Opinion page 314.)

And again, in answering the complainant’s contention that the contract in the cited cases was invalid, because it was indefinite as to duration, the court said:

“ ‘Complainant’s contention that the agreement is void as against public policy because it is by its terms perpetual and imposes a never ending burden upon complainant is without merit. The power delegated to the contracting municipalities by the statute contains no limitation with respect to the length of time for which such agreement may be made; hence this agreement made pursuant to such statutory authority may not be condemned because its duration is without limitation.’ ” (Ibid. 314.)

In McNemry et ux. v. Bellevue Borough, 301 Pa. St., 568, 152 A., 563, in commenting upon a contract by which the Borough of Bellevue was granted permission to lay sewer pipes in the territory of the adjoining Borough of Avalon in return for the privilege granted to twenty-five property owners of Av'alon to connect and use the sewer belonging to Bellevue, the court said:

“ ‘The Borough of Bellevue had granted permission to twenty-five residents of Avalon to connect with the eighteen-inch sewer. This was the price the former paid to the latter for the privilege of laying the sewer in its territory.’

“In the instant case the right to convey sewage through and dispose of the same within the territorial limits of an adjoining municipality was obtained by the city upon its promise to pay the price of serving' the present and future sewage of the territory of the village without charge. This agreement cannot be held invalid for the reasons now urged by plaintiff. In executing the agreement of 1916, the city of Cleveland exercised its general power to make contract's necessary and proper to the accomplishment of its public functions and it bas not been established that such contract violated any statute or that it contravened any established principle of public policy. It must therefore be upheld.”

While we approve the conclusion of the trial court, we think it should be further emphasized that the continuing use of the right of way granted to the city, together with the continuing operation of the sewage disposal plant within the territorial limits of the village, together impose a duty upon the city to recognize and fulfill its stated contractual obligations.

Further it. is implicit in arguments presented by the city that it would be content to permit the connection of the interceptor provided that it would be paid certain rental charges commensurate with the charges paid by bther municipalities for like services. Considering the specific terms of the contract and the continuing substantial benefits daily accruing to the- city under it, it is our view that the city cannot repudiate its obligations while retaining the benefits. Certainly a court of equity should not grant the injunctive process in aid of such a purpose.

Counsel for the city have stressed the perpetual nature of the obligations imposed under the contract. However, it must he remembered that both parties are equally bound. It may be that some time in the future new conditions may arise; for instance the city may eventually abandon the right of way created under the existing contract and conceivably may cease to use the property now located in the village for sewage disposal purposes. If such or any similar situations should develop the parties may then seek a further determination of the rights and liabilities under such materially changed conditions.

■ For the reasons stated, a decree will be entered for the defendants; the injunction prayed for is denied and the petition dismissed at the costs of plaintiff, appellant.

Decree for defendants.

Morgan, J., and Skeel, J., concur.


author: Wiseman, J.

text:
    Johnson, Appellee, v. Steinhauer et al., Appellants.
    (No. 1895
    Decided December 12, 1946.)

      Mr. Paul J. Gaiser, for appellee.

      Messrs. Scharrer, Scliarrer & Hanaghan, for appellants.
   Wiseman, J.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Montgomery county, affirming the judgment of the Municipal Court of Dayton in favor of the plaintiff.

The case was tried to the court without the intervention of a jury. The court rendered separate findings of fact and conclusions of law which, together with the transcript of the docket and journal entries, constitute the record in this case.

Briefly stated, the facts are as follows: The plaintiff delivered his automobile to the defendant Steinhauer to finish a repair job which the defendant had begun but had not completed; the defendant, because of other employment and illness, was not able to make the repairs; the defendant upon driving along Home avenue in Dayton, Ohio, had trouble with his own automobile and seeing a place of business where there were automobiles, entered the place of .business and inquired whether there was a mechanic there; upon finding a mechanic at the place of business he engaged him to fix his own automobile, which was promptly done; thereupon, without the knowledge or consent of the plaintiff, the defendant engaged the mechanic at this place of business to repair plaintiff’s automobile; the defendant drove the plaintiff’s automobile to such place of business, left instructions as to the repair work and the return of. plaintiff’s automobile to the defendant’s residence; the day after the plaintiff’s automobile was supposed to be delivered to the defendant, the defendant learned that the plaintiff’s automobile had been stolen by the mechanic at such place of business, driven to Xenia, Ohio, and wrecked; such place of business was not an automobile repair shop but was an automobile wrecking lot and a place where used parts of automobiles were offered for sale.

The trial court found that the defendant Steinhauer was a bailee for hire and had not exercised ordinary care in taking plaintiff’s automobile to the automobile wrecking lot to have it repaired.

As a part of the conclusions of law, the trial court found:

“Therefore, as a conclusion of the facts, the court finds that the defendant, Otto P. Steinhauer, did not under the circumstances exercise that degree of care an ordinary prudent man would use when he left, as bailee, the bailor’s automobile at a place of business that was not an automobile repair shop, and did not hold themselves out as such and as a matter of fact was'an auto wrecking lot and used parts sales lot. ’ ’

The Common Pleas Court, on review, in commenting on that finding of the trial court, said:

“We agree with counsel for defendant that there is reason to question the soundness of the proposition that the delivery of an automobile to an automobile wrecking lot for repair purposes is negligence, but we find no difficulty in agreeing with the finding and judgment of the lower court for a different reason.” The fact that the trial court may have assigned a reason for its conclusion which the Court of Common Pleas and this court cannot approve, does not require reversal. If the judgment is correct, a reviewing court will not reverse merely because erroneous reasons were assigned. In Agricultural Ins. Co. v. Constantine, 144 Ohio St., 275, at page 284, 58 N. E. (2d), 658, the court says:

“If the defendant was entitled to judgment at the conclusion of the plaintiff’s case, the fact that the trial court based its conclusion upon an erroneous reason is unimportant. By repeated decisions of this court it is the definitely established law of this state that'where the judgment is correct, a reviewing court is not authorized to reverse such judgment merely because erroneous reasons were assigned as the basis thereof. ’ ’

The Common Pleas Court found that the defendant Steinhauer in delivering plaintiff’s automobile to the automobile wrecking lot for repair work which he, the defendant, was engaged to perform, breached and violated a contract of bailment, and for any loss which resulted, the defendant should, respond in damages.

The plaintiff’s action was grounded on contract. It is the duty of the bailee under a contract of bailment for hire to exercise due care to prevent loss of or damage to the bailor’s property; if the bailee fails to exercise due care he is liable for any damage resulting by reason of such failure. Where the bailee fails to redeliver the property to the bailor upon demand made therefor, a right of' action accrues in favor of the bailor. While it is true some authorities hold that where the action is founded on contract, the bailor has sustained his burden of proof when he proves the bailee’s failure to return the property, and, thereupon, the burden rests iipon the bailee to establish as an affirmative defense that he exercised due care, nevertheless, the law appears to be fairly well established in Ohio that, whether the action is based on contract or negligence, proof of failure to return the property makes out a prima facie case of liability and the burden to proceed with the evidence shifts to the bailee to explain his failure to redeliver. In North River Ins. Co. v. Ohmer, 63 Ohio App., 346, 26 N. E. (2d), 767, the Court of Appeals for the Second Appellate District had before it a case where an automobile had been stolen from a parking garage. In a well-considered opinion by Judge Hornbeck, this court held:

“ Where the owner of an automobile places it in a garage in which space is rented for the storage of automobiles, the relationship of bailee for hire arises, and if, upon demand by the owner for his automobile, the bailee cannot produce it, a presumption of negligence, on thb part "of the bailee arises and the owner will be entitled to recover for any damage shown unless the bailee produces evidence of sufficient weight to counterbalance the presumption against him.

“In such case, mere proof of theft of the automobile from the premises of the bailee will not, in and of itself, meet such presumption against the bailee. ’ ’

In Agricultural Ins. Co. v. Constantine, supra, an automobile had been stolen from a parking lot. Judge Bell, in a most able opinion, discussed in a rather comprehensive manner the law with reference to bailments, citing authorities in support thereof. We may well rest this case on the two cases just referred to. In the latter case, the second, fourth and sixth paragraphs of the syllabus are as follows:

1 ‘ 2. Where a bailor delivers property to a bailee and such bailee fails to redeliver the bailed property upon legal demand therefor, a cause of action, either ex contractu or ex delicto, accrues in favor of the bailor.”

“4. In an action by a bailor against a bailee based upon a breach of the contract of bailment, where the bailor proves delivery of the bailed property and the failure of the bailee to redeliver upon legal demand therefor, a prima facie case of want of due care is thereby established and the burden of going forward with the evidence shifts to the bailee to explain his failure to redeliver.”

“6. In an action by a bailor for damage by reason of the bailee’s failure to redeliver the bailed property, the burden of proof is upon the bailor to prove that, the bailee was guilty of negligence or want of due care. In determining that question, the presumption of negligence or want of due care arising from bailee’s failure to redeliver, his explanation of the circumstances surrounding such failure and any evidence offered to rebut-such explanation, all should be considered ' and weighed by the trier of the facts. To entitle the bailor to prevail the preponderance of all the evidence must support the conclusion that the bailee was guilty of negligence or want of due care.”

See, also, 5 Ohio Jurisprudence, 124,125, Section 30.

In the case at bar the evidence presented by the defendant Steinhauer in explanation of his failure to redeliver the automobile to the plaintiff is not strong enough to warrant an inference that the defendant had exercised due care; rather, the evidence supports the finding of the Common Pleas Court that the defendant by his own affirmative act breached and violated the contract of bailment by delegating the performance of his undertaking to another; for any such breach resulting in damage, the defendant should respond in damages. See 6 American Jurisprudence, 312, Section 227. The defendant under such a state of facts is liable even though he used due care in the selection of a person to whom he delegated the performance of his undertaking. In 6 American Jurisprudence, 312, Section 228, the text is as follows :■

“The weight of authority supports the rule that if the bailor, without authority, deviates from the contract as to the place of storage or keeping of the property, and a loss occurs which would not have occurred had the property been stored or kept in the place agreed upon, the bailee is liable, even though he is not negligent. This rule regards the bailee as assuming, by his breach of contract, the risk of any injury which would not have resulted had he not committed such breach, even though the place to which he moves the goods is equally safe and proper for the purpose. Where his contract is to keep the property in a particular place, the bailee’s liability is the same notwithstanding he was compelled by force of circumstances to place it elsewhere and in so doing was not guilty of any negligence. In such a case it appears that it is the bailee’s duty to notify the bailor and to obtain his consent to the change if he is to avoid liability. ’ ’

For a group of eases in support of that proposition of law, see 12 A. L. R., 1322.

All the assignments of error urged by counsel for the defendants, appellants herein, hinge on the one legal proposition herein discussed.

The Common Pleas Court found that the defendant Steinhauer had breached his contract of bailment by delegating the performance of his undertaking to another, and we likewise so find.

Finding no prejudicial error in the record, the judgment is affirmed.

Judgment affirmed.

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


text:
    The State, ex rel. Youngs, v. Board of Elections of Lucas County et al.
    (No. 4259
    Decided July 3, 1947.)

      Messrs. Lord, Hayward, Smith & Notnagel, for relatrix.

      Mr. Joel S. Bhinefort, prosecuting attorney, Mr. Jerome J. Jesionowski, Mr. Harry F rib erg and Mr. Lehr Fess, for respondent Board of Elections of Lucas county. \

      Mr. Harold T. Towe, for respondent Board of Trustees of Washington township,- Lucas county.
   Carpenter, J.

Seeking to incorporate a village by the procedure outlined in Sections 3526 to 3531, inclusive, General Code, 45 electors, over half of whom were freeholders of Washington township, Lucas county, on June 23, 1947, filed a petition with the township clerk addressed to the township trustees asking them, among other things, to order an election “to obtain the sense of the electors (in the territory described in the petition, which included practically all of that township) upon such incorporation,” to be known as the village of Secor.

On that date, two of the trustees met and by resolution found the petition to be adequate as required by law and directed that an election be held July 7, 1947, and that notices by publication and posting be given all as provided for by statute. A copy of that resolution, certified by the township clerk and signed by the two trustees, was, on June 24, 1947, filed with the respondent Board of Elections of Lucas county, which board is proceeding to conduct such election.

July 1, 1947, the relatrix, Hazel J. Youngs, a taxpayer and elector in the township, having requested the prosecuting attorney of Lucas county to bring an action to prohibit the board of elections from proceeding with such election and having been refused by him, filed the petition herein seeking to prohibit such election.

Two reasons are alleged why the action of the township trustees was illegal and void:

1. That a large part of the territory sought to be incorporated into a village has been laid off into village lots, a plat of which has been recorded. It is now urged that by reason thereof, the only proper procedure for the establishment of the contemplated village is by petition to the board of county commissioners of Lucas county, as provided for in Sections 3517 to 3525, inclusive, and 3532 et seq., Oefieral Code.

2. That (a) the resolution of the trustees was not approved by all the trustees or a majority of them at a regular or special meeting; (b)° that no notice of the calling of any meeting for the passage of the resolution was given; and (c) that the two trustees who signed the resolution “were not authorized to, nor did they act as. a duly elected, qualified and acting board of trustees in their attempt to enact and pass said purported resolution.”

From the agreed statement of facts before the court, it appears that large portions of the territory described have been laid off in village lots, plats of which have been recorded. It appears also that at the time the petition was filed, June 23,-1947, one of the trustees “was absent from the United States” and was not notified of the special meeting held by the two with the clerk at which the resolution'was adopted; that later the same day, after the formal resolution had been typed, it was signed by the two separately and not in the presence of each other.

1. The respondent board of elections demurred to the petition on the ground that the relatrix had an adequate remedy at law, especially as provided in Section 3531, G-eneral Code. Looking to State, ex rel. Stanley, v. Bernon et al., Bd. of Elections, 127 Ohio St., 204, 187 N. E., 733, and State, ex rel. Smith, v. Hummel, Secy., of State, 146 Ohio St., 341, 66 N. E. (2d), 111, it seems that prohibition is an appropriate remedy in Ohio in this type of action, if the record discloses that the action of the trustees was illegal.

2. Did the township trustees of Washington township have jurisdiction to. entertain the petition filed with them and direct the holding of the election?

Looking to the statutes in question and their history, it appears that in 66 Ohio Laws, 150, the procedure for incorporation of villages by petition to the county commissioners was set up. With some amendments, this procedure is still in effect (Sections 3517 to 3525 and 3532 et seq., General Code). Under Section 3517, General Code, this method applies when the territory sought to be incorporated is “laid off into village lots, a plat of which territory has been acknowledged and recorded as is provided with respect to deeds” or “has been laid off into such lots and surveyed and platted by ah engineer or surveyor,” etc.

In 1896 (92 Ohio Laws; 333), what are now Sections 3526 to 3531, General Code, were enacted, expressly supplementing what is now Section 3525, General Code. Section 3526, General Code, provides that “when the inhabitants of any territory or portion thereof desire that such territory shall be incorporated into a village” they may make application to the trustees of the township. This was the procedure followed in the instant case.

The same Legislature that passed this in April, in . February before (92 Ohio Laws, 26), amended what is now Section 3517, to enable inhabitants of an island or islands to incorporate “without such plat having-been first made.”

In 1902, in 95 Ohio Laws, 469, provision was made for the incorporation of territory “surrounding- a summer resort.” Under such situation, an election is held in the territory.

In view of this legislative history and the fact that in 92 Ohio Laws, 333, what are now Sections 3526 to •3531,'General Code, were enacted subsequently to and supplementing the then existing plan of incorporation which applied only to platted territory, it seems obvious that the Legislature meant what it said when it used the language, “any territory or portion thereof,” and thereby created a new procedure td accomplish incorporation cumulative to the one then existing and which it had amended at the same session. This conclusion was reached in Libby v. Paul, County Recorder, 17 N. P. (N. S.), 433, which cites,and quotes from an unreported decision by the Court of Appeals for Cuyahoga county rendered in 1914.

3. It is contended that, because the two trustees were not in session together when they signed the resolution, their action was invalid. The agreed statement of facts shows that the resolution was passed in the afternoon at a formal special session, and in the evening after it had been typed, the trustees were separate when each signed a copy. The official action was what took place in the special session, and the signing of the copy later.was not necessary to give it validity. Ratcliff v. Teters, 27 Ohio St., 66.

4. Was the action of the two trustees taken at a special meeting at which the third trustee was not present and of which he had no notice valid?

Again legislative action gives us some guide. At common law, as to an official body of this kind all members had to be present in order to have a quorum. This was recognized in State, ex rel. Cline, v. Trustees of Wilkesville Township, 20 Ohio St., 288, 293, where the court, speaking in reference to proceedings of townships, said:

“# * * matters of public concern, though it is necessary for all to be present, yet the majority will conclude the minority. In this state, however, the rule of the common law has been abrogated in the case of township trustees. By the 7th section of the act of March 14, 1853 (S. & C., 1567), the number of trustees is fixed at ‘three,’ and by the 14th section it is declared that ‘a majority shall be a quorum to do business at all meetings of the trustees. ’ ’ ’

That case gave effect to the statute, that a majority was a quorum, and was followed in Place v. Taylor, 22 Ohio St., 317, 319.

That statute has since been repealed, anjl now nowhere does the statute define what shall be a board of trustees’ quorum.

The statute so modifying the common law having been repealed' and nothing enacted to take its place, it may well' be inferred that the common law was restored.

Even when that statute was in effect and a majority constituted a quorum, notice to the nonattending members was necessary. The reason for this is well expressed in Slicer v. Elder, 2 W. L. M., 90, 2 Dec. Rep., 218, which was decided’ while the statute was in force, as follows:

“Under this provision as to township trustees, a majority may act at special meetings, as well as at regular meetings, the time and place of which latter is fixed by statute. . .

“But in order to render the acts of two trustees, at a special meeting, obligatory and valid, all must have reasonable notice of it, unless the notice be waived. This is necessary to protect the public against imposition, and for this purpose they have a right to require that all shall know of special meetings, so that their discretion, at least, may be exercised in determining the necessity for attending. The statute, construed in the light of public policy and authority, requires this. Its object was not to prevent the attendance of all the trustees, but to enable a majority to act if all did not attend. The common law required the presence of all at all meetings, and, of course, all were required to have notice. The common law rule has only been changed, so far as to enable a majority to act, if all, do not attend. Where, by law, a corporate body can delegate its powers to one member as agent, he may act; but township trustees have no power to delegate the authority of all to any one.

“As to regular meetings, the time and place of which is fixed by law, no notice is necessary, so far as acts authorized to be done at such meetings are concerned.”

The law contemplates three township trustees acting as a board and the public is entitled to the judgment of three, or at the least, to the opportunity of each to exercise his right of individual expression on the public business.

One trustee having been absent and without notice of this important business at the special meeting, the action of the two is void, and for that reason the peremptory writ will be granted.

Writ allowed.

Stuart and Conn, JJ., concur.


text:
    Parker, Appellant, v. Rose, Appellee.
    (No. 4018
    Decided June 4, 1947.)

      Mr. Isadore L. Margulis, for appellant.

      Messrs. Mayer <& Mayer, for appellee.
   Hornbeck, J.

Plaintiff, appellant herein, recovered a judgment in the Municipal Court of Columbus, against the defendant, appellee-herein, who appealed from the judgment to the Common Pleas Court. The notice of appeal was regular and it and the bill of exceptions were filed within time. Defendant failed to file assignments of error and brief within rule in the Common Pleas Court, and appellee there, appellant here, moved to dismiss the appeal, which motion was overruled. Appellant there, appellee here, moved the court for leave to file the assignment of errors and brief out of rule, which motion was sustained. From this orden of the Common Pleas Court this appeal is taken, and the parties have briefed the question presented. No motion has been filed to dismiss the appeal, but counsel for appellee here argue that there is no final order or judgment from which an appeal may be prosecuted.

That claim is -well made. Manifestly, the order made was not a judgment which is pending determination on the appeal in the Common Pleas Court, nor is it a final order, because it does not determine the action or prevent a judgment. Section 12223-2, General Code. See, also, 2 Ohio Jurisprudence, 135; Longworth v. Mullaly, 2 Handy, 131, 12 Dec. Rep., 366; Knollwood Cemetery Co. v. Cuyahoga County, 137 Ohio St., 388, 30, N. E. (2d), 687; Bankers Life Co. v. Waters, 39 Ohio App., 343, 177 N. E., 530.

Inasmuch as appeals may be prosecuted to judgments bf final orders only, and we have neither here, we cannot entertain this appeal and it will be dismissed.

Appeal dismissed.

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


author: By the Court.

text:
    In re Estate of Decker: Sherwood, Appellant, v. Betts, Exr., Appellee.
    (No. 477
    Decided January 25, 1946.)

      Mr. W. 8. Snook, for appellant.

      Mr. Marcus C. Downing, for appellee.
   By the Court.

This is an appeal, on questions of law .from a judgment of the Probate Court of Hancock county, striking from the files and dismissing certain exceptions filed by the appellant, Florence L. Sherwood, to the inventory of the estate filed by Jackson E. Betts, executor thereof.

Omitting the caption and signature, the exceptions are in the words and figures following, to wit:

“Now comes Florence L. Sherwood and represents to the court that she is interested in the inventory of said estate filed in this court on the 14th day of July, 1945, and-that she takes exceptions to said inventory, and does here now except to the same for the reason that said inventory contains money which rightfully belongs to her and not to the estate bf George H. Decker and should not have been included therein.”

To these exceptions, Jackson E. Betts as „such executor, filed a pleading which he designated “Motion,” which, omitting caption and signature, is in the words and figures following, to wit:

“Now comes Jackson E. Betts, executor of the estate of George H. Decker, deceased, and moves the .court for an order striking from the file and dismissing' the exceptions filed by Florence Sherwood to the inventory filed herein by said executor for the following reasons:

“1. By virtue of Section 10509-59 of" the General Code of Ohio the. said Florence Sherwood, or exceptor is neither a person interested in the estate nor an heir at law of said decedent.

“2. That the matter raised by said ■ exceptions has been adjudicated herein before said exceptions were filed and therefore is ‘res judicata”

Upon the hearing of such exceptions and the pleading designated a motion, filed by the executor thereto, the exceptor, Florence L. Sherwood, was called as a witness on cross-examination by counsel on behalf of the executor, and testified as follows:

That the money referred to in the exceptions she claims rightfully belongs to her and not to the estate of George H. Decker is the identical funds which the Probate Court of Hancock county, in a' proceeding duly pending before it, under date of. February 18, 1944, found belonged to the estate; that she was guilty of having concealed the same, and the court ordered her to deliver the same immediately to Jackson E. Betts, executor of the. estate of George H. Decker, deceased, to be by him administered under the direction of the court; that such order had been duly affirmed by the Court of Appeals, and the Supreme Court had overruled her motion to certify the record in the appellate court to it; that pursuant to such order she had, prior to the filing of the exceptions, paid and delivered the funds in question to the 1 executor; and that she was not an heir-at-law of the decedent or any relation whatever to him.

The appellant assigns error in the hearing of the cause in the Probate Court, in the following particulars :

1. In overruling the exceptor’s objection to calling the exceptor for cross-examination for the purpose of the motion to dismiss the exceptions.

2. Various errors in the ruling of the court as revealed by the record on the hearing of the motion and shown by the bill of exceptions.

3. The court erred in sustaining the motion of the executor to dismiss the exceptions to the inventory filed by the appellant, Florence L. Sherwood.

Assignment number two will not be considered as it is not argued in appellant’s brief. Assignment number one will be first considered and assignment number three will be next considered.

1. The facts to which exceptor testified in this proceeding all occurred subsequent to the death of the exceptor’s decedent and her testimony as to such facts was admissible under the provision of subdivision 1 of Section 11495, General Code. As she was an adverse party the executor properly called her to testify as upon cross-examination. Consequently there is no merit as to the first assignment of error.

3. While the pleading filed by the executor of the estate to the exceptions is designated a motion, it was, in legal effect, an answer as it attacked the merits- of exceptor’s claim.

While the defense of res judicata is inartfully pleaded, no request was made to the court that it be made more definite and certain, and in the absence of such request it was sufficient to raise such defense, and the testimony of Florence L. Sherwood conclusively sustains such defense.

The hearing on the exceptions and the so-called motion thereto constituted a hearing on the merits of the case.

While the order of the court striking the exceptions from the files was erroneous, it was not prejudicial to the appellant, Florence L. Sherwood, as her own testimony disclosed that any right she may have claimed in the money shown by the inventory had been adjudicated against her prior to the filing of the exceptions, and that such adjudication was in full force and effect. The dismissal of the exceptions was the proper remedy. That was properly ordered by the court.

There being no error in any of the respects specified in appellant’s brief, the judgment of the Probate Court is affirmed.

Judgment affirmed. .

Middleton, P. J., Jackson and Guernsey, JJ., concur. *■ !


author: Doyle, J.

text:
    Price, Appellee, v. The Cleveland Trust Co., Exr., Appellant.
    (No. 20404
    Decided December 8, 1947.)

      Messrs. Harrison, Thomas, Spangenberg & Hull, for appellee.

      Messrs. Miller, Daus & Schwenger, for appellant.
   Doyle, J.

Newman S. Price recovered a judgment in the sum of $9,000 against The Cleveland Trust Company as executor of the estate of James S. Jordan, deceased. The recovery was for legal fees, all allegedly rendered to the trust company’s decedent, Jordan, by the plaintiff’s assignors, John H. Price, Sr., and John H. Price, Jr. The action was based upon an implied contract to pay the reasonable value of the services rendered.

The appeal to this court is on questions of law from the heretofore-noted judgment, entered in the Court of Common Pleas of Cuyahoga county.

1. Attention will be first directed to the third assignment of error, which is presented in the following terms: “In re testimony of John H. Price, Sr., under dead man statute (G. 0. 11495), and presentment of claim against decedent’s estate (G. C. 10509-112).”

It appears that the plaintiff, Newman S. Price, presented a claim to the executor of the estate of Jordan for the amount of $27,661, plus interest, which he claimed to own by assignment from John H. Price, Sr., and John H. Price, Jr., his father and brother, respectively. The claim was seemingly filed within the time limitation provided in Section 10509-112, General Code.

Upon the trial of the case it was necessary for the plaintiff-assignee to prove the assignment, and this he attempted to do by offering in evidence a written assignment purportedly executed and dated October 27, 1940, a day several months subsequent to the day of the presentment of his claim to the representative of the estate. The court properly rejected this evidence.

The plaintiff then attempted to prove an oral assignment of the claim on a date prior to the death of the defendant’s decedent. The court properly rejected this evidence.

Thereupon the following appears of record, which is the only evidence of the assignment of the claim of John H. Price, Sr., to the son Newman S. Price, the plaintiff herein; the testimony being by the said John H. Price, Sr.:

“Q. (by Mr. Harrison): I will put the question further. At the time and immediately after Mr. Jordan ’s death was there in force and 'effect as of that time an assignment of this interest from you to your son Newman?

“Objection;-overruled; exception.

“A. There was.”

The appellant vigorously asserts that this question and answer was erroneously permitted to stand, and without it there is no evidence of the assignment of the claim. Specifically,' appellant says:

“This is error manifest. Price testified directly to an alleged assignment made in 1937 while Jordan was alive and the "answer was stricken. Then the witness was permitted to testify to exactly the same thing under a different form of question. '

“The existence of the alleged assignment at and after Jordan’s death depends upon the fact of the assignment prior to Jordan’s death. It is universally recognized that the statute cannot be evaded by inquiries ostensibly directed to facts after death but really directed to facts pridr to death.”

Section 11495, General Code, expressly makes a party incompetent to testify in an action where the adverse party is" the legal representative of a deceased person, except under certain circumstances therein set forth. The disqualification does not apply to a party who testifies to .“facts which occurred * # * after the time the'decedent * * * died.” (Italics ours.) Another Ohio statute (Section 11494, General Code) in this connection also provides that “4. A person who assigns his claim or interest, concerning any matter in respect to which he would not, if a party, be permitted to testify,” shall not testify.

In the light of these statutes, was this testimony of John H. Price, Sr., supra, competent evidence of the fact that the son Newman was the assignee, of the claim against the Jordan estate, and as such could prosecute it as his own?

It is to be observed that the Ohio statutes (different in many respects from those in other states) disqualify the assignor or the assignee of the claim from testifying as a fitness to any fact which occurred prior to the death of Jordan. This disqualification exists even though the subject-matter is one which was without the knowledge of the deceased, and consequently upon which he could not have spoken if living.

The testimony of the assignment which was permitted to stand was, of course, evidence of a fact which existed after the death of the deceased, but it was not evidence.of a fact'which occurred after the decedent died. To be sure, the testimony tended to prove a fact existing at the time of and after the death of the deceased, but this testimony of necessity relates to the fact of an assignment which occurred prior to the death of the deceased, and it was therefore incompetent. A rule under the Ohio statutes may be succinctly stated as follows: That where proof of the existence of a fact after the death of a decedent relates to the existence of such fact prior to decedent’s death, which continued to exist after death, the evidence of such fact after death is incompetent because it did not “occur” after the death.

We therefore are of the opinion that there is no competent evidence of the ownership of the claim of John H. Price, Sr., in the son Newman, the plaintiff herein. See 70 Corpus Juris, Witnesses, Section 393, and supporting casés cited thereunder; see, also, Hall, Admx., v. Crain, 3 W. L. M., 137, 2 Dec. Rep., 453, for analogous reasoning under similar statutes.

2. It is charged that the court erred in permitting John H. Price, Sr., to testify to the value of legal services which he rendered to Jordan prior to Jordan’s death.

John H. Price, Sr. (alleged assignor of claim to plaintiff), was presented as an expert witness by the plaintiff, and was so accepted by the court. The following question was asked him, on the theory that it was of a hypothetical character:

“Mr. Price, I am going to pnt to you a hypothetical question which you will understand as a lawyer, I am going to ask you, and I want you to disregard everything that you know from your own personal knowledge about this whole matter. I want you to rely on the question I am about to put to you, and in the answer that I expect to receive from you I want you to rely merely on the evidence which you have received here in court. Now, then, assuming that as- a lawyer at this bar, with the years of experience that are entailed and the knowledge that would be necessarily entailed in the practice of law since the Spanish-American War, if we may use that term, and that you did work as a lawyer for Jordan as stated in Jordan’s own admissions, (this reference is to the record of a former trial held during the lifetime of Jordan and which was admitted in evidence in the instant trial) testified to or read to this jury yesterday in this case— and I take it, your honor, counsel won’t require me to read that all over again to embody it in this hypothetical question, that we can at least shorten it to that extent, without having to read it all over.

“Mr. Schwenger: That’s all right.

“Predicating your answer upon what you have heard in this court (a) from what Mr. Jordan’s testimony was, (b) from what Miss Michels’s testimony was in this court, (e) from what the other two girls have testified to, and (d) from the files as admitted in this case, do you have an opinion — and you can answer this question yes or no — as to what would be the reasonable charge, and you will bear in mind I am not asking the services you did perform, but only do you have an opinion as to a reasonable charge for the services shown by the evidence in this case to have been performed by a man by the name of John Price for a man by the name of Jordan?”

Objection was made to this question for the reason that the witness came within the prohibition of Section 11495, General Code. Counsel for plaintiff then continued the question as follows:

“Mr. Price, without repeating that question again, I should have also included, and including also the evidence as shown by the files which are here in evidence and have been received in this case. Based upon that alone, and disregarding everything out of your mind that you might know by your own personal experience, do you have an opinion — you can answer this yes or no — as to what would be the fair and reasonable charge for the services shown thus to have been per-, formed?

“A. I do.

“Q. And what is your opinion?

i‘Mr. Schwenger: We object.

“The Court: Overruled.

.“A. $17,400.”

In so far as John H. Price, Sr., is concerned, his right to testify is governed by the same rules as would be applicable tó his son Newman, the plaintiff, his claimed assignee, by virtue of the provisions of Section 11494 (4), General Code, supra. The statute (Section 11495, General Code) bars the son Newman from testifying entirely except under the circumstances set forth in the various subdivisions therein, one of which only is pertinent to this discussion, vis.: “The facts which occurred * * * after the time the decedent- * * * died, ’ ’ may be given in evidence by the adverse party.

The statute has nothing to do with the question of the competency or admissibility of the testimony of the assignee as such, but relates solely to his competency as a witness. 42 Ohio Jurisprudence, Witnesses, Section 157. In other words, the statute says the witness cannot testify at all except it be concerning facts which occurred after the time the decedent died. , Certainly the fair and reasonable value of legal services performed for the deceased prior to death is not testimony of a fact which occurred after the decedent died.

Counsel for appellee comment by brief: ‘ ‘ The only point now made is that, out of all the lawyers in the world, Price was the one person incompetent to give a present opinion about present evidence.” Be that as it may, the Legislature made the rule, and as long as the witness must stand in the shoes of the party to the record, this court must rule him incompetent, because he cannot testify on any subject unless it' comes within the statutory exceptions.

3. It is further claimed that “the court erred in admitting evidence of services barred by the statute of limitations,” and that “the court erred in charging the jury on the subject of limitations.”

In this connection, this court is of the opinion that the determination by the. jury that the six-year statute of limitations did not apply, is manifestly against the weight of the evidence. (It is apparent that it did so find, in view of the evidence in its relation to the size of the verdict.)

4. We have examined the other errors claimed, and find none to be of a prejudicial character.

The judgment is reversed, and the cause remanded.

Judgment reversed.

Nichols, P. J., and Stevens, J., concur.

(Nichols, J., of the Seventh Appellate District, and Doyle, P. J., and Stevens, J., of the Ninth Appellate District, sitting by designation in place of judges of the Eighth Appellate District.)


text:
    The American National Fire Ins. Co., Appellant, v. Western Ohio Public Service Co., Appellee.
    (No. 497
    Decided March 14, 1947.)

      Messrs: Millér & Finney, for appellant.

      Mr. Morris D. Bice, Messrs. Smith, McCallistér <& Gibney and Mr. T. A. Billingsley, for appellee.
   By the Court.

This is an appeal on questions of law from the Court of Common Pleas of Greene county.

The facts disclose that Albert Krumm, Inc., was engaged in the construction of houses in the village of Osborn, Ohio, on January 28, 1944. The plaintiff, appellant herein, was engaged in the insurance business and had a policy for certain risks on the building under consideration belonging to Albert Krumm, Inc. At such time, the Western Ohio Public Service Company, the defendant, appellee herein, was engaged in the business of retailing natural gas to its customers in the village of Osborn, Ohio, and Albert Krumm, Inc., was one of its customers. Albert Krumm, Inc., was the owner of a double brick-residence building located on lot No. 90 on Wallace Drive in Osborn, Ohio, .and it owned also a similar building located on lot No. 91. The building on lot No. 90 was under construction and the one located on lot No. 91 was just being completed.. The buildings were on adjoining lots. Gas mains had been laid by the defendant in the street along and in front of both lots Nos. 90 and 91, and curb boxes, together with proper shut-off valves, had been installed by the defendant in front of lots Nos. 90 and 91.

On January 29, 1944, an explosion occurred in the building located on lot No. 90, and the building was partially destroyed by. gas explosion and resultant fire. The American National Fire Insurance Company, the plaintiff herein, paid for the damages to Albert Krumm, Inc., and was subrogated to all its rights.

The action is brought by The National Fire Insurance Company for the recovery of the sum which it has paid. The petition alleges that the building was destroyed by explosion and fire as a result of the negligence of the defendant in several respects. The answer is-in. substance a general denial and an allegation of contributory negligence.

The issues raised by the pleadings may be epitomized as follows:

(1) Did the defendant cause the gas to be turned on at the street valve and allow the gas to flow into the damaged building?

(2) If it did so, was it negligent in so doing in any of the particulars alleged in the petition?

(e>) Was the plaintiff’s assignor guilty of any negligence that contributed as a proximate cause to the injuries complained of?

The errors assigned are:

(1) The court erred in allowing cross-examination of plaintiff’s witnesses as to incompetent and immaterial matters not properly an issue in the case: (a) As to rules of the gas company; (b) as to so-called rules of the National Board of Fire Underwriters; and (c) as to alleged customs of the gas company.

(2) The court erred in its charge to the jury on the subject of contributory negligence.

(3) The court erred in charging the jury that if plaintiff’s evidence raised an inference of negligence it was incumbent upon plaintiff to produce evidence sufficient to equal or counterbalance such inference.

(4) Other errors apparent on the face of the record.

Since the verdict for the defendant was general, it must follow that the jury found for the defendant on all the issues joined in the cause. Sites v. Haverstick, 23 Ohio St., 626. All the errors assigned relate to alleged errors in attempting to establish contributory negligence on the part of the plaintiff’s assignor, Albert Krumm, Inc. Conceding for the purposes of argument that the plaintiff is correct, and that the assignments of error are well taken, such errors could’ not be prejudicial, for the finding on the other issues is sufficient to sustain the verdict.

In Sites v. Haverstick, supra, the court said, in paragraph two of the syllabus:

“In such case, if the issues are such that a finding of either of them in favor of the successful party entitles him to the judgment rendered, the judgment will not be reversed for error in the instructions of the court relating exclusively to the other.”

The general rule is also clearly set forth in 2 Ohio Jurisprudence, 777, Section 675, as follows:

“The rule is well settled in Ohio that where the jury returns a general verdict in a case involving two or more issues, a finding upon any ,one of which in favor of the successful party would entitle him to judgment if the record does not disclose affirmatively by answers to interrogatories Or otherwise, upon which issue such verdict was based, the judgment will not be reversed if no error appears as to any one or more of them although there may be error as to other issues. In this connection it may be said that the courts construe a ‘finding of the issues joined in the cause’ in favor of one of the parties as a finding In his favor of all the issues.”

The basis of the general rule is the presumption in favor of the validity of the judgment and the duty of the party seeking to overthrow it to show affirmatively that error has occurred to his prejudice. If it may seem that injustice may result from the enforcement of the rule under some circumstances, it is to be remembered that the remedy is always in the hands of counsel, since he may in such case, if he deems it advisable, request a special verdict upon any or all the issues presented in the case, or may submit interrogatories to be answered, if the’ jury returns a general verdict, by which the basis of such a verdict will be disclosed.

We are, therefore, of the opinion that, since the specific errors assigned relate to only one of the issues in the case, such errors are immaterial, and the finding on the other issues for the defendant is sufficient to sustain the general verdict. We find no errors apparent on the face of the record.

The judgment is affirmed.

Judgment affirmed.

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


author: Wiseman, ,P. J.

text:
    Yendes, Appellee, v. Shaw, Appellant, et al.
    (No. 1955
    Decided September 10, 1947.)

      Messrs. Beigel & Mahrt, for appellee.

      Mr. T. L. Barger, for appellant.
   Wiseman, ,P. J.

This cause is submitted on motion to dismiss the appeal on the ground that the order appealed from is not a final order.

The defendant, appellant herein, filed three separate defenses and a cross-petition. The trial court sustained -a demurrer to the second and third defenses and the cross-petition. The defendant not desiring to plead further, the second and third defenses and the cross-petition were dismissed. -

An order sustaining a demurrer without dismissing the action is not a final order, as the court may grant leave to amend. National Guarantee & Finance Co. v. Russell, 25 Ohio Law Abs., 483. However, an order' sustaining a demurrer to the second and third defenses and cross-petition and dismissing the defenses and cross-petition is a final order under the provisions of Section 12223-2, General Code, from which an appeal may be taken. Latham v. Ransome Concrete Machinery Co., 13 Ohio Law Abs., 63; Morehead v. Central Trust Co., Exr., 54 Ohio App., 9, 5 N. E. (2d), 932. The motion to dismiss the appeal is overruled.

Motion overruled.

Miller, and Hornbeck, JJ., concur.