text:
    Billow, Appellee, v. Billow, Exrx., Appellant.

      (No. 4367
    Decided October 28, 1953.)

      Messrs. Wise, Roetsel, Maxon, Kelly & Andress, for appellee.

      Messrs: Brouse, McDowell, May, Bierce & Wortman, for appellant.
   Hunsicker, J.

This is an appeal on questions of law.

Archie L. Billow, now deceased, and Minnie A. Billow, the plaintiff below, appellee here, were husband and wife. On May 12, 1942, Minnie A. Billow was granted a divorce from Archie L. Billow. The trial court accepted and approved a separation agreement which the parties signed on March 17, 1942, prior to the judgment of divorce.

In the separation agreement which the parties signed, Archie L. Billow promised to pay to Minnie A. Billow, $150 each month thereafter ‘ ‘ until death or remarriage * * V’

Archie L. Billow, on August 8, 1943, married Anita M. Billow, who, as executrix, was the defendant below and is the appellant here. Minnie A. Billow has not remarried.

The deceased, Archie L. Billow, made all of the payments as they became due, until the date of his death in August, 1951. Anita M. Billow v/as thereafter appointed the executrix of the last will and testament of Archie L. Billow. Minnie A. Billow filed a claim with the executrix for the sum of $750, representing payments for September, 1951, through January, 1952, and also for the allowance of a claim for monthly payments of $150 each, commencing February 8, 1952, and continuing during her lifetime. The executrix rejected this claim. Minnie A. Billow then filed in the Court of Common Pleas of Summit County, Ohio, an action seeking a money judgment against the defendant-executrix for $750, and for “an adjudication and decree that plaintiff is a creditor of the estate of said Archie L. Billow, deceased, and that her said claim is a valid and continuing claim against said estate and a charge against ail of the assets of said estate which are available for the payment of the claims of creditors * * *, and for an order directing the defendant to allow said claim as a valid and continuing claim against the estate of said Archie L. Billow, deceased, and to pay same as decreed by the court. ’ ’

By agreement of counsel and the parties, the cause was tried to the court without a jury. The trial court found in favor of the plaintiff, and a judgment was entered which determined that Minnie A. Billow “is entitled to recover from the estate of said Archie L. Billow and the defendant, Anita M. Billow as executrix # * *, the sum of $750,” and “is entitled to a judgment declaring that the estate of said Archie L. Billow and the defendant, Anita M. Billow, executrix * * *, are indebted to the plaintiff, Minnie A. Billow, in the sum of $150 each month commencing with the month of February, 1952, and continuing each month thereafter until the death or remarriage ’ ’ of Minnie A. Billow.

An appeal from such judgment comes before this court for review. The decisive question which this court must determine is: Did the ‘ ‘ separation agreement,” entered into by Archie L. Billow and Minnie A. Billow on March 17, 1942, in legal effect bind the estate of Archie L. Billow to make a payment of $150 each and every month to Minnie A. Billow, until her death or remarriage?

We are not dealing here with alimony or support payable in installments which has been decreed by a court in a divorce action. If such were the case, it is clear that, under the law of Ohio, the estate of a husband is not liable for installment payments of either alimony or support for the period after the death of the husband, unless the parties have so agreed and the agreement is approved by the court and is-incorporated in the decree. Platt v. Davies, Admr., 82 Ohio App., 182, 77 N. E. (2d), 486.

The above paragraph states the law as determined by the Supreme Court of Ohio in the following cases: Lockwood v. Krum, Admr., 34 Ohio St., 1; Graff, Exrx., v. Graff, 99 Ohio St., 448, 125 N. E., 72; Snouffer v. Snouffer, 132 Ohio St., 617, 9 N. E. (2d), 621.

The law of Ohio with respect to a continuing obligation of support based upon contract between the parties, has been stated in the case of Hassaurek v. Markbreit, Admr., 68 Ohio St., 554, at p. 580, 67 N. E., 1066, as follows:

“It must now be regarded as settled beyond controversy that when, in an action, for divorce, the court ‘ s satisfied from the evidence that the marriage relations should be annulled the parties are competent to contract with respect to such changes in property rights as are to result from the severance of the former relation and their contract, if approved by the court, may • be carried into its decree, thus becoming a perpetual obligation. ’ ’

It is thus established that the parties to a separation agreement can lawfully enter into a contract, whereby the estate of the divorced husband, who dies prior to the date of death of his divorced wife, is legally bound to make continuing payments of support, until the death or remarriage of the divorced wife. Such an agreement is not contrary to public policy, and the contract creates the obligation to pay after death. See: Annotations on this subject in 18 A. L. R., 1055; 100 A. L. R., 500; 101 A. L. R., 327.

We now look to the “separation agreement” of March 17,1942, which contains the contract, and, within the four corners of that agreement, determine into what arrangement the parties entered. What they agreed to is in writing, and what is in writing is what they said to each other, and what they said to each other is what they intended their agreement to be, and what they intended their agreement to be, they had the trial court approve and enter as a part of the judgment of divorce.

The agreement provides, so far as material herein, that:

1. Archie L. Billow will pay to Minnie A. Billow ‘ ‘ as support for herself,- until death or remarriage, the sum of One Hundred and Fifty Dollars ($150.00) per month * * * starting March 15,1942 * * *.”
2. Archie L. Billow sells and assigns to Minnie A. Billow ‘ ‘ all of the household furniture and effects, and other personal property, now located in and about” the residence of the parties.
3. The net proceeds of a sale of the homestead shall be divided equally.
4. Archie L. Billow ‘ ‘ will save harmless ’ ’ Minnie A. Billow “from any and all debts now” owed by either party.
5. Archie L. Billow will maintain insurance on his life and name Minnie A. Billow “irrevocably as beneficiary” thereof, “and agrees to make delivery of each of said policies ’ ’ in escrow to the attorneys for Minnie A. Billow “for the purpose of guaranteeing the performance of the premises herein made.”

The agreement then states that:

“Now therefore, in consideration of the foregoing covenants and agreements, each party hereto does hereby release and discharge the other from all obligations of support, and from ail other claims and duties arising or growing out of said marital relation; and said parties mutually agree that each party hereto may freely sell or otherwise dispose of his or her own property, by gift, deed or last will and testament, and each party is by these presents hereby barred from any and all rights or claims by way of dower, inheritance, descent, distribution, allowance for year’s support, right to remain in the mansion house, and all rights or claims as widow, widower, heir, distributee, survivor or next of kin, and all other rights or claims whatsoever, in or to the estate of the other, whether real or personal, and whether now owned or hereafter to be acquired, which may, in any manner arise or accrue by virtue of said marriage.
“And each party hereto, for the considerations aforesaid, does hereby release and relinquish to the other, and to the heirs, executors, administrators and assigns of the other, all claims or rights of dower and inheritance, or as widow, widower, heir or survivor, in and to all the real property of the other, whether now owned or hereafter acquired, all rights or claims, as widow, widower, survivor, or next of kin, to a distributive share of the personal estate of the other, now owned or hereafter acquired, and all claim or right to an allowance for year’s support, or to reside in the mansion house, and all other rights or claims whatsoever, which may, in any manner, arise or accrue by virtue of said marriage.
“And each party further agrees that the other party shall have full liberty to dispose of all his or her property, real and personal, whether now owned or hereafter acquired, during life or by last will and testament, and that, upon the death of such party, all of his or her property, real and personal, which shall not have been disposed of, during life or by last will and testament, shall descend to, vest in and be distributed to, such person or persons as would be entitled to the same by the statutes of descent and distribution of the State of Ohio then in effect, had the surviving party died during the life of the other party.
“And each party hereby waives any right which he or she may have to administer the estate of the other party, upon the death of such other party.
“Each party hereto further agrees, upon request of the other, to execute and acknowledge any and all deeds or other instruments of release or conveyance to enable such other to sell, convey or otherwise dispose of his or her own real property, free from any apparent right of inchoate dower therein.”

The regular monthly payment of $150 was paid until the date of the death of Archie L. Billow in August, 1951, and until at least the date of death the full and complete terms of the agreement were met.

It is a primary rule that a written contract should be construed in such manner as to give full effect to the intention of the parties, and such intention should be determined from the language used by giving to the words placed in the contract their ordinary and usual meaning. It is also axiomatic that the contract must be construed in its entirety’ and the intent gathered from a consideration of the whole agreement, rather than as separate paragraphs or sentences.

We are certain from a reading of this “separation agreement” that Archie L. Billow and Minnie A. Billow intended to settle once and for all time the financial and marital problems which existed between them. They each hoped that, by the arrangement which they entered into, all future difficulties so far as support, obligation for debt, and the acquisition and disposition of property, were fully and finally determined.

Prom an examination of the agreement, it is readily seen that the parties did not own much property. They had a modest home, as shown by the price at which it was sold, that was encumbered for nearly three-fourths of its value.

Debts were owed, which arose out of the marriage, such as the $900 in obligations contracted by Minnie A. Billow, and notes signed by Archie L. Billow or both parties. The insurance policies were in an amount that was modest when we consider the present claim of Minnie A. Billow. These insurance policies were encumbered by debts, and Minnie A. Billow, realizing that her estranged husband was not able to maintain the full $14,000 face amount of the policies in force, consented to a reduction in the amount of insurance Archil L. Billow was to carry.

This reduced amount of insurance, with the encumbrances removed by payments made by Archie L. Billow, was then placed in escrow (so that the escrow agent could check to see that the premiums were paid as they became due) with Minnie A. Billow as the irrevocable beneficiary.

We must ask: Why was Minnie A. Billow made the irrevocable beneficiary? The only logical answer is that it was for the purpose of giving her a measure of support after the death of the insured; for it appears certain that all Archie L. Billow had left to him was a settee, his personal clothes, one-half the equity from the sale of the house, and the income he might receive from hi's labor, which in turn was encumbered by the obligation to pay $150 each month as support, the obligation to pay premiums on life insurance, and the obligation to pay certain other debts.

The facts shown above, standing alone, would seem sufficient to establish the ultimate fact that the parties did not and never intended that the estate of Archie L. Billow should be bound to continue the payment of $150 each month to Minnie A. Billow after his death. In fact, he practically had no estate at the time of the agreement out of which payments could ever be made. The payments agreed upon could only be made out of personal earnings.

But, in addition, the agreement provides that “each party * * * shall have full liberty to dispose of all his * * * property * * * by last will and testament” as though “the surviving party died during the life of the other party.” This does not say “except as such estate may be encumbered by the support payments.” It does say that all the property of either party owned at the time the agreement was executed, and that which either afterward acquired, was to pass as such party directs and as though the other party was then dead.

This section of the agreement makes doubly certain that the parties never intended that the estate of Archie L. Billow was bound to continue the support payment beyond the death of Mr. Billow.

Therefore, in applying the legal principles set out above, we find no provision in the contract for support payments after death, and therefore under Hassaurek v. Markbreit, Admr., 68 Ohio St., 554, 67 N. E., 1066, and other cases and texts cited above, there is no obligation for continued payments after death.

The judgment of the Common Pleas Court is * reversed, and final judgment awarded the appellant-executrix herein.

Judgment reversed.

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


source: Caselaw Access Project

author: Matthews, P. J.

license: Public Domain

text:
    Coleman, Appellant, v. Reagan, Appellee.
    (Two eases.)
    (Nos. 7659 and 7660
    Decided March 16, 1953.)

      Mr. Walter K. Sibbald and Mr. Vernon R. Brose, for appellants.

      Messrs. Rendigs, Fry & Kiely, for appellee.
   Matthews, P. J.

In these two actions the plaintiffs —husband and wife — seek to recover damages resulting from physical injuries received by the wife from a fail upon the public sidewalk in Pedretti Avenue, adjacent to the defendant’s land. The cases were tried together and the appeals were presented together in this court.

As a basis for defendant’s liability, the plaintiffs alleged that a cement driveway was constructed extending from such sidewalk to a garage on defendant’s property and that defendant had permitted a gully to be formed adjacent to the driveway, which permitted surface water on her land to accumulate “in said gully and to flow alongside said driveway in a stream towards, onto, over and under said cement sidewalk, at a point where said sidewalk had become undermined, broken, uneven and depressed ’ ’; that on J anuary 11, 1950, water which drained from defendant’s property had formed ice in the damaged portion of such sidewalk; and that she was walking along the sidewalk not knowing of the existence of the damaged condition of such sidewalk and while exercising reasonable care, she stepped upon the damaged portion of the sidewalk, and because of the damaged, uneven and slippery condition she was unable to maintain her footing and was precipitated to the sidewalk and seriously injured.

The negligence alleged against the defendant is that the sidewalk in its damaged condition was unsafe for travel and that she contributed to ‘ ‘ the nuisance there existing by causing and permitting surface water to accumulate on her land and to drain therefrom so as to cause said sidewalk to be damaged as heretofore described ; * * * also that defendant negligently failed to properly control the accumulation of surface water on her land or to prevent the flow thereof into the damaged part of said sidewalk or to prevent the accumulation and freezing of said flow therein.”

The defendant admitted the existence of the sidewalk and her ownership of the abutting property and that the plaintiff Julia Coleman fell and sustained some injury, and denied all other allegations. The defendant alleged the affirmative defenses of contributory negligence and assumption of risk.

At the trial, evidence was introduced showing that defendant owned the premises at the corner of Carnation and Pedretti Avenues, the surface of which was level with Carnation Avenue, and that it extended back its entire distance of 230 feet on Pedretti Avenue at about that same grade with just enough slope toward the rear to cause the water falling thereon to flow in that direction. However, when Pedretti Avenue was widened and improved a grade was established starting level with Carnation Avenue and sloping gradually downward toward the rear, so that 150 feet from Carnation Avenue the defendant’s property was about three feet higher than the surface of Pedretti Avenue opposite it. The sloping of the embankment along Pedretti Avenue, without doubt, caused some surface water to flow and trickle into Pedretti Avenue which would have flowed to the rear had the grade not been lowered. The residence was located some distance from Carnation Avenue so that its rear wall was about 75 feet from a garage with a capacity sufficient to house three automobiles. The roof was so arranged that the water flowed in equal amounts to the four sides. There were no gutters or downspouts. How far this garage was from Pedretti Avenue does not appear. _ It was reached from Pedretti Avenue by passing across the sidewalk to a cement driveway or apron. The garage, and perhaps a ridge or embankment close to it, formed an obstruction to the flow of the water and diverted some of it onto the apron and across the sidewalk. Some water also reached the sidewalk from the embankment along Pedretti Avenue and the slope caused by the cut through which the garage was reached. The residence and garage were on the location when the defendant became the owner of the property, but when Pedretti Avenue was improved the defendant caused the sidewalk and cement driveway to be constructed.

Beyond this, the evidence presents a picture of a residence lot covered by grass, with bushes and flowering plants scattered about, particularly around the edges, forming the usual obstructions to the flow of surface water.

There is a suggestion in the testimony of the plaintiff Paul Coleman that there was a ditch just north of the garage and driveway. What he referred to manifestly was the indentation caused by the dripping of the water from the garage roof. He testified that there was a slope from the yard level to the garage driveway, and, on cross-examination, he was asked:

“Q. You said you wouldn’t unqualifiedly call it a ditch; you called it a place where the water passed down; is that what you said? A. By a ditch I would mean something that has been dug by hand and it has not been dug out.
“Q. This would be then a sort of a passage cut out by water as it ran down, is that right? A. I would say so, yes.”

As frequently happens in the trial of cases, a blackboard was used and pointed to in order to establish locations, and neither the board nor a copy is incorporated in the bill of exceptions. This makes it difficult for a reviewing court to understand the testimony and places it at a great disadvantage as compared to the trial judge and, naturally, causes a reviewing court to give great weight to the trial court’s analysis of the evidence. In this case there is no necessity for us to reach a conclusion contrary to that of the trial judge because he made no specific expression as to this ditch, although his general conclusion was adverse to the plaintiffs.

Our conclusion is that the testimony shows that the “so-called ditch” was located on the slope leading down from the yard to the garage driveway and resulted from the normal little rivulets into which surface water forms when on a slight grade before it reaches a well-defined watercourse.

It had rained on the night of January 10, 1950, but by ten o’clock of the following morning the sidewalk on Pedretti Avenue was dry. The plaintiff Julia Coleman was walking northwardly on the sidewalk, immediately north of the north side of the driveway leading to the garage on defendant’s property where she fell and wás seriously injured. She described her fall as follows: “I was walking along and just all of a sudden my two feet went from under me and I had no indication — sometimes when you fall you feel yourself going but I didn’t; just my two feet went from under me and I fell. ’ ’ She did not testify as to the cause of her fall or the condition of the sidewalk at the place. However, her husband testified as to the condition of the sidewalk at or near the place where she fell and there was corroboration of his testimony on that subject in some respects. Pointing to the blackboard and apparently at a point on the sidewalk just north of the driveway he said: “This place in here was full of little pock marks — little holes. * * * The holes were three inches in diameter and with a depth of half an inch.” And they covered an area of four and a half feet in length and the width of the sidewalk.

It was below freezing and water had accumulated in these holes and frozen in and between the holes, forming a strip of ice across the sidewalk about three inches wide.

The inference is that the plaintiff stepped on this space and was caused to fall.

At the close of plaintiffs’ evidence, the court arrested the case from the jury and entered judgment for the defendant.

In so doing the court said:

‘ ‘ One injured by falling on ice which has accumulated on a public sidewalk from the natural flow of water has no right of action in damages against the abutting owner, but only if the latter has, by his negligence, caused or created such a dangerous condition by the artificial accumulation of surface water and causing it, as thus accumulated, to be discharged upon the public way or sidewalk in considerably greater amount than would have been from natural causes.
“Now the law further says that the legal right of the owner or occupier of the property to use it in whatever way he may desire is restricted only by lawful use and not by consideration of the change of the flow of surface water. ’ ’

The law is clear that the abutting owner owes no duty to the public to construct and maintain a sidewalk in the street. That duty under Section 3714, General Code, is imposed upon municipalities as to streets within their boundaries. The duty which defendant owed to the plaintiff Julia Coleman as she. proceeded along Pedretti Avenue was that which all owe to so act as to not subject others to unreasonable hazards which a reasonably prudent person would anticipate, and that same duty applies with equal force to persons in both public and private places. 28 Ohio Jurisprudence, 632, Section 400. It is affirmative negligent acts that create liability, and the fact that the wrongdoer happens to be the owner of the abutting land is purely fortuitous and immaterial in determining liability.

There is no evidence that the holes or uneven places in the sidewalk were created by any affirmative act of defendant. There is a suggestion that freezing may have contributed to the creation of the holes and that some of the water came from defendant’s premises, but it is clear that this water, if any, may have come from rain falling on the sidewalk at a higher level or from “the surface water flowing from the yard in accordance with the law of gravity, without any diversion for which defendant was responsible.

It should be mentioned that the defendant cannot be held liable for the condition resulting from the lowering of the grade of Pedretti Avenue. If that change of grade caused more water to flow from defendant’s yard into and upon the sidewalk, that was not the result of any affirmative act by defendant. And it is as reasonable to conclude that the water which collected in the defects in the sidewalk was caused in that way as in any other suggested manner. In this regard, the evidence suggests possibilities without presenting any rational basis for a choice.

The evidence shows that during the time defendant owned this lot the only change she made in the manner of using it resulted from the change of grade of Pedretti Avenue. Continuing to use it in the same manner, certainly, cannot be said to have been an unreasonable or unlawful use. The residence and garage remained in the same location. The water from the garage roof reached the ground in the same manner and quantity. Prom there, it sought the lower level in accordance -with the law of nature. In doing so it may in the course of time have worn a slight depression or channel, but certainly it had not been transformed from surface water into a well-defined watercourse. And, certainly, there is no substantial evidence, if any, that the defendant designed it.

A case very similar on its facts to the case at bar is that of Cavanaugh v. Texas Distributing Co., 37 Ohio Law Abs., 1, 45 N. E. (2d), 142, decided by the Court of Appeals of the Eighth Appellate District. The court reviewed at great length the right of property owners to make use of their property and the circumstances under which they are liable for injuries caused by ice and snow upon the abutting sidewalk. The "court held there was no liability in that case. It is true one of the judges dissented, but the dissent was not based on any disagreement as to the law. The. dissenting judge was of the opinion that the evidence showed an intentional accumulation and discharge of the water upon the sidewalk.

In Strohm v. Molter, 30 Ohio Law Abs., 330, this court had occasion to consider the use which the owner could make of urban property. We quote the second paragraph of the headnotes:

‘ ‘ The rule of ‘ reasonable use ’ is applicable to urban lots, if the use .of the premises in the locality is found to be what might be reasonably expected to exist, thereby modifying the general restriction against ‘throw back’ and over-acceleration of surface water on adjoining premises.”

The trial court found that there was no substantial evidence of any wrongful act by defendant causing or contributing to the cause of the plaintiff’s injuries. We agree with that conclusion. At most, the evidence suggests possibilities only as to the cause of plaintiff’s fall, and there is no substantia] evidence of any wrongful act causing or contributing thereto.

For these reasons, the judgments are affirmed.

Judgments affirmed.

Ross and Hildebrant, JJ., concur.


author: Skeel, J.

text:
    City of Cleveland, Appellee, v. Davey, Appellant.

      (No. 23106
    Decided June 2, 1954.)

      Mr. Ralph S. Looker, director of law, Mr. Bernard J. Conway and Mr. Hyman Friedman, for appellee.

      Mr. C. K. Snyder, for appellant.
   Skeel, J.

This appeal comes to this court on questions of law from a judgment of guilty of being found in a state of intoxication within the city in violation of Section 13.1516 of the Cleveland Municipal Code, upon a finding entered by the trial court without the intervention of a jury.

From the judgment thus entered the defendant claims the following errors:

“1. In overruling a demurrer of the defendant to the affidavit — which fails to charge the defendant with any crime.
“2. By overruling the motion of the defendant to direct a verdict in favor of the defendant and to discharge the defendant after the opening statement of plaintiff’s counsel.
“3. By overruling the motion of the defendant to direct a verdict in favor of the defendant at the close of plaintiff’s evidence.
“4. By finding the defendant guilty and imposing sentence upon him on the affidavit in this case.”

The affidavit upon which the prosecution was based is as follows:

“Before me Paul DeGrandes, deputy clerk of Cleveland Municipal Court personally came Thomas Moran No. 1574 who being duly sworn according to law, deposes and says that on or about, the 12 day of Sept. A; D. 1953, at the said city and county, one Albert Davey did unlawfully become intoxicated and was found in a státe of intoxication in said city; and further deponent says not; contrary to the form of an ordinance of said city in such cases made and provided.
Thomas Moran No. 1574.”

The evidence in the record shows that the defendant was arrested in his home, the arresting officers having gone there to investigate a traffic accident. There had been no complaint that the defendant was disturbing the peace prior to his arrest.

The section of the codified ordinances of the city of Cleveland under which the arrest and. conviction of the defendant were based (section 13.1516) reads as follows:

“Any person who is found in a state of intoxication or who shall disturb the good order and quiet of the city by intoxication or drunkenness, shall be deemed guilty of a misdemeanor * * *.”

The history of the legislation on this subject begins with 52 Ohio Laws, 153 (1854), where it was provided:

“Sec. 5. That it shall be unlawful for any person to get intoxicated, and every person found in a state of intoxication, shall, upon conviction thereof, be fined * * *

This section was amended, 56 Ohio Laws, 173 (1859), as follows:

“Be it enacted by the General Assembly of the state of Ohio that section 5 of the act providing against the evils resulting from the sale of intoxicating liquors in the state of Ohio, passed May 1, 1854, be amended so as to read as follows: Sec. 5. That it shall be unlawful for any person to get intoxicated, and every person found in a state of intoxication, shall upon conviction thereof, be fined in the sum of five dollars, and pay the eosts * * *.” (The only amendment was to remove a one to three days jail sentence.)

As found in Section 6940, Revised Statutes, this provision read:

“Whoever is found in a state of intoxication shall be fined five dollars.”

Section 6940, Revised Statutes, upon the adoption of the General Code, became Section 13194, General Code, which by amendment in 1921 (109 Ohio Laws, 232) provided:

‘ ‘ Whoever is found in a state of intoxication or whoever, being intoxicated, shall disturb the peace and good order, or shall conduct himself in a disorderly manner, shall be fined * * *.”

Upon recodification in 1953 (Section 3773.22, Revised Code), the section was reworded to read:

“No person shall be found in a state of intoxication or, being intoxicated, shall disturb the peace rnd good order, or shall conduct himself in e disorderly manner. * * *”

It is interesting here to note that no penalty under this section is found in Section 3773.99, Revised Code.

In the Municipal Code of Cleveland (1924), Section 2991 provided:

“Any person who shall disturb the good order and quiet of the city by intoxication or drunkenness, shall be deemed guilty of a misdemeanor * # #.”

In 1939 (ordinance No. 192-39), this section was amended to read:

“Any person who is found in a state of intoxication or who shall disturb the good order and quiet of the city by intoxication or drunkenness, shall be deemed guilty of a misdemeanor * * *.”

Upon recodification of the Cleveland ordinances in 1951, this section became section 13.1516 of part 13, ‘ penal code, ’ ’ of the codified ordinances of the city of Cleveland.

It is to be noted that the amendments of 1939 passed by the Cleveland city council adopted verbatim the first clause of the first sentence of the state law defining the character of conduct dealing with intoxication to be prohibited as unlawful. In doing so, the council must have intended to give to such section the same meaning and to make unlawful the same conduct as was prohibited by state law.

For more than one hundred years it has been the law of the state of Ohio that any one “found” in a state of intoxication is guilty of a misdemeanor. The place where a defendant is found in a state of intoxication is of no importance. This must be so, because, as is shown by the history of the state law, disorderly conduct or disturbing the peace while intoxicated or drunk was added to the section in 1921 without changing any part of the wording of the section as it read prior to the amendment.

It is for the Legislature and, in a municipal corporation in dealing with conduct to be prohibited under the police power of the city, it is for the city council (within the limits of its constitutional powers) to define what conduct is to be prohibited within the police power and to make the violation of the rule thus stated a misdemeanor, punishable by fine and imprisonment.

From a reading of this section there is- no need to resort to interpretation. The words when given their ordinary meaning express clearly the intention of the Legislature.

In the case of State v. Stevens, 161 Ohio St., 432, the Supreme Court in following and approving paragraph two of the syllabus of Slingluff v. Weaver, 66 Ohio St., 621, 64 N. E., 574, said:

“In the construction of a legislative enactment, the question is not what did the General Assembly intend to enact but what is the meaning of that which it did enact. (Paragraph two of the syllabus in the case of Slingluff v. Weaver, 66 Ohio St., 621, approved and followed.) ”

Paragraph two of the syllabus of Slingluff v. Weaver, supra, provides:

“But the intent of the law makers is to be sought first of all in the language employed, and if the words be free from ambiguity and doubt, and express plainly, clearly and distinctly, the sense of the law-making body, there is no occasion to resort to other means of interpretation. The question is not what did the General Assembly intend to enact, but what is the meaning of what it did enact. That body should be held to mean what it has plainly expressed, and hence no room is left for construction. ’ ’

The plain words of the ordinance, “any person who is found in a state of intoxication,” do not indicate that, when such unlawful act, as thus defined, is committed in the home of the defendant, such conduct is not to come within the prohibition. Has it ever been argued that any other unlawful act committed in the home is immune from prosecution?

Here the harm provided against is being found in a state of intoxication. One who, by the use of intoxicating liquor, destroys his reason and self-control, and who thereby becomes a potential danger to himself and those about him, comes clearly within the provisions. If the council of the city of Cleveland had desired to limit the application of the ordinance it could have done so by positive provisions. If the ordinance was to have application in public places only, then the amendment of 1939 was unnecessary.

The only way the contention of the defendant can be supported is to hold that the city council in passing the amendment of 1939 abused its discretion or that such amendment, as to being found intoxicated in the home, is unconstitutional. Considering the history of the legislation and che statute on the same subject, passed by the Legislature of Ohio, we cannot come to such conclusion.

For the foregoing reasons the judgment is affirmed.

Judgment affirmed.

Hurd, P. J., and Kovachy, J., concur in the judgment.

Kovachy, J. The question whether a police officer may arrest an intoxicated person who is peaceful and orderly in his own home without a warrant is not decided by us in this case.

Hurd, P. J., concurs in the foregoing concurring opinion.


author: Phillips, J. Nichols, J.,

text:
    The State, ex rel. Cataland et al., Appellants, v. Birk et al., Appellees.

      (No. 3614
    Decided October 28, 1953.)

      Mr. Edward Roberts, Mr. Eugene P. Brown and Mr. John R. Oesoh, for appellants.

      Mr. Paul Van Such, for appellees.
   Phillips, J.

On January 27, 1949, relators purchased Campbell city outlot number 48, which faces 79.05 feet on Coitsville Road and extends back along Twelfth Street a distance of 122.38 feet, and adjoining Campbell city lot number 5001, which faces 70 feet on Twelfth Street and has a depth of 44.82 feet on its north line and 55.72 feet on its south line, which two parcels of land form a complete tract of land situated on the northeast corner of Coitsville Road and Twelfth Street in the city of Campbell, Mahoning County, Ohio.

At the time of such purchase by relators a residence was situated on outlot number 48, the occupants of which and their predecessors in title had used a one-story frame garage situated on Campbell city lot number 5001 for more than 20 years.

A Campbell city zoning ordinance, which became effective on October 31, 1950, provides, among other things, that no building shall be erected on any lot facing on Twelfth Street closer than fifty feet from that street.

On June 29, 1951, relator, Louis Cataland, applied for a permit to erect a garage, he claims, on the site of the garage then situated on Campbell city lot number 5001.

The Campbell city building inspector issued a permit for the erection of a garage on outlot 48 instead of, as relators claim, on Campbell city lot 5001 for which he applied. Relator proceeded to raze the old garage, and erect on a part of the foundation thereof a two-story garage on Campbell city lot 5001. On October 23, 1951, when .the new garage was partially completed the building inspector ordered the construction thereof halted on the ground that a tw,o-story instead of a one-story garage was being built thereon, which second story subsequently was removed.

On October 29, 1951, the building inspector ordered relators to raze and remove such garage from Campbell city lot 5001 within fifteen days or face arrest for violation of the Campbell city zoning ordinance and violation of the permit issued for the construction of ihe garage on outlot number 48.

Again, by letter dated February 26, 1952, the building inspector ordered relators to raze and remove the garage from Campbell city lot 5001 within thirty days because it was being erected less than fifty feet from Twelfth Street or face arrest for violation of the Campbell city zoning ordinance.

On appeal to the Planning Commission of the City of Campbell, in which relators urged that the building inspector erred in issuing a permit for the erection of such garage on outlot 48 instead of Campbell city lot 5001 and in refusing to issue a permit to build a garage on Campbell city lot 5001, the commission denied their appeal on June 2,1952.

Thereafter relators filed an action in mandamus in the Court of Common Pleas seeking to compel the Planning Commission of the City of Campbell and the building inspector thereof to issue a permit to them for the erection of a garage on Campbell city lot 5001 on the site of the former garage, which relief that court denied them on June 6,1953, and entered judgment accordingly. Relators appealed from that order to this court on questions of law.

By assignments of error relators contend that “the court below erred in finding that Mr. Birk, the building inspector, did not commit an error in issuing a building permit for outlot 48 instead of lot 5001,” and in “holding that the zoning regulations of the city of Campbell do not irppose an unreasonable restriction upon lot 5001.”

Relators contend that the ‘ ‘ denial of a building permit for a garage on lot 5001 has no relation to the public health, safety, morals or general welfare,” to which a restriction of a zoning ordinance must relate, and “is an arbitrary and unreasonable restriction on the use of lot 5001 by appellants ’ ’; that ‘ ‘ the city planning commission has the power in cases of practical difficulty or unnecessary hardship to permit exceptions to and variances from the zoning ordinance ’ ’; and that “where there has been an abuse of discretion by. the city planning commission a court may grant relief”; and finally, that ‘ ‘ each case must be considered in connection with the particular facts, circumstances and conditions surrounding it. ’ ’

While not contending that the set-back requirements of the Campbell city zoning ordinance are invalid generally, relators urge that when the set-back requirements are applied to the particular facts of the case we review it results in depriving them of the right to the full use of their property.

Respondents contend:

“1. That Mr. Birk, the building inspector, did not commit an error in issuing a permit for outlot No. 48 instead of lot No. 5001.
“2. That the milding inspector conid not issue a permit for lot No. 5001 for to do so would be in contravention of the Campbell zoning ordinance which establishes a 40-foot set back restriction.
“3. That the Campbell zoning ordinance does not impose an unreasonable restriction upon lot No. 5001 and is a valid and constitutional exercise of the city’s police powers.”

Relator testified:

‘‘Q. Mr. Cataland, I shall ask you if last summer sometime in the month of July, 1 believe, you decided to put up a new garage on your place ? A. Yes.
“Q. Did you go down to the inspector’s office, building inspector’s office, in the city of Campbell to get a permit? A. Yes.
“Q. What did you tell the inspector? A. I told him I want to tear down old garage in the place and put a new garage.
“Q. What did he say? A. He told me to tear it down, lots of complaints for that garage there, tear it down.
‘ ‘ Q. When you talked to him did you tell him where you were going to build it? A. Yes, sir.
“Q. Where did you tell him? A. Where the old garage was.
“Q. The same place where the old garage was? A. Yes.
“Q. Did he appear to know where the old garage was? A. He said he know all about it.
“Mr. Van Such: Objection.
“The Court: Objection sustained as to the form of the question; it calls for a conclusion.
“Q. Did he indicate to you by words or by action that he knew where the old garage was? A. Yes.
“Q. How did he do that, Mr. Cataland?
U # * *
“Q. This permit was given for ontlot 48, was it not, according to this permit? A. I didn’t know until after and I found that out.
“Q. So in spite of the building permit you say you did not know and you proceeded to construct a garage on lot No. 5001 where the old one was? A. Yes.
a # # &
“Q. Will you tell me how much time elapsed between the time you got this permit on June 29th, 1951, for outlot 48 and the time you applied for a building permit on 5001? A. After the trouble started.
“Q. In other words, you had your garage already there and then you applied for it and all these requests were made to tear down the garage that you applied for a new permit on 5001? A. Yes.
6 < * # #
“Q. What condition was the old garage at the time you tore it down, were you able to use it?
“Mr. Roberts: He has already testified that it was repairable.
“A. If I can repair, I can repair it, but they tell me to tear it down and I tear it down.
“Q. Would you have built a new garage anyhow, Mr. Cataland, if somebody had not told you to tear it down; in other words, were you able to use it for your purposes? A. Yes.
“Q. Would you have still built a new garage and torn it down because of its condition?
( i * #
“A. No, I wouldn’t tear it down; let it stay there.
“Q. Mr. Cataland, you say you would not have torn it down and yet the new one that you built was for two cars, is that correct? A. I get permit for two cars.”

The building inspector testified:

“A. He asked for a permit for a garage and I told him that I would give him a permit and I did so. I asked him what the lot number was and I said, is it where the house is, and he said it is on that lot and I took the number off of the tax receipt, the lot number, O. L. 48.
i ( # * #
“Q. After that did he say anything? A. He didn’t say nothing; went away and everything was all satisfactory.
“Q. You gave him a written permit? A. Yes.
“Q. Did he tell you at that time that you made an error, you should have given the permit for Lot No. 5001? A. No, sir.”

As far as the evidence discloses the permit issued on outlot 48 is still in full force and effect, and there is ample room to build a garage of the same size as the old one on that portion of relators ’ land.

Under the evidence submitted the questions presented for our consideration are whether the use of relators’ land is unreasonably restricted by their being denied the right by permit to erect a new garage on Campbell city lot 5001 on the site of the one that stood there previously, and whether the city planning commission abused its discretion as urged, which we answer in the negative.

Carefully considering all the evidence submitted to us in this appeal, two members of the court conclude that the use by relators of their land has not been restricted unreasonably by depriving them of the privilege of erecting the new garage on that land where they desire to erect it and allegedly intended to erect it at the time they applied for a permit or at the place they allege they applied for a permit to erect it. In our opinion, the city planning commission did not abuse its discretion in refusing to issue relators a permit to build such garage on the site of the old garage.

Finding no error prejudicial to relators in any of the respects urged by them in their assigned grounds of error, oral arguments or brief, the judgment of the Court of Common Pleas must be, and hereby is, affirmed.

Judgment affirmed.

Griffith, P. J., concurs.

Nichols, J.,

dissenting. Prior to the adoption of the zoning ordinance of the city of Campbell the relators were the owners of lot number 5001 and outlot number 48 in that city.

Por more than twenty years prior to the adoption of the ordinance there existed upon lot 5001 a garage which constituted a nonconforming use.

The evidence clearly indicates that the garage which constituted such nonconforming use had become in a bad state of repair, and that the relators desired and intended to tear down the old garage and erect upon the foundation thereof a new garage using concrete blocks and covering the same with permastone.

There can be no question under the law that the relators had the right to maintain the old garage where it had remained on lot number 5001 for a long period of time before the adoption of the ordinance.

To me, it is clear from the evidence that relators orally applied to the building inspector for a permit to change the old garage from its dilapidated condition to a new and substantial and more beautiful structure. When Louis Cataland applied for a permit to do so the inspector asked him to bring in his tax certificates, which he did, and the inspector signed the name of one of the owners to a written application for a permit to build the garage 24 by 24 feet, but issued the permit for the erection thereof on outlot number 48. Outlot number 48 never had a garage on it. There was no intent or desire of the relators to erect a garage on ontlot number 48. Just why the inspector issued the permit for that outlot is a matter of conjecture.

The relators proceeded to erect the garage on the foundation of the old one on lot number 5001, and when the same was partially completed they were notified to remove the same, given a specific number of days to do so, and threatened with prosecution if they failed to comply with the order of removal. They failed to comply and an affidavit has been filed against them charging them with violation of the zoning ordinance.

The testimony shows that the relators, under the mistaken belief that the permit for the new structure granted them the right to construct the same on the old foundation, proceeded to do so.

It is clear that the inspector, in granting the oral application of the relators for the permit, acted under a mistake of fact, and that the relators acted under a mistake of fact in erecting the new garage on the lot for which the permit did not provide. Here was a mutual mistake on the part of the parties interested.

In my judgment the permit should have been corrected to conform to the application made therefor, to wit, for the reconstruction of the garage on lot number 5001, and that, as corrected, the relators would have been clearly entitled to the permit applied for by them.

I further find from the evidence that the zoning ordinance of the city of Campbell has no substantial relation to the public health or welfare of the city of Campbell as applied to the particular lot number 5001. There was an attempt by the city to show its relationship to the public health and welfare, but the only evidence introduced by the city upon that subject was to the effect that the old garage, in its dilapidated condition, was detrimental to the aesthetic appearance of other properties on the street.

It seems to me that the residents of that street were well aware of the co-operative attitude of the relators in removing the old structure for the sole purpose of correcting the eyesore which had a tendency to affect the aesthetic character of the properties in the particular neighborhood. Indeed, I think there is no one, either city officials or residents of the community, who would not have agreed that the improvement contemplated by relators was desirable not only to them but to every resident and every official of the city of Campbell.

There can be no question that the relators had the right to repair the old garage so as to prevent it from becoming a fire hazard or otherwise endangering the residents of the city of Campbell, and in its repaired condition relators would have had the right to keep the garage on lot 5001 for all time; and it is only because of the mutual mistake of the inspector and of the relators that the garage has not now been reconstructed so as to eliminate any objection which could be made thereto from an aesthetic standpoint or otherwise.

In my opinion, a great injustice has been done to the relators in this case by the denial of the permit asked for by them. It would be very clear to me that if this were an action for a mandatory injunction to prevent the city from interferring with the reconstruction of the garage and from ordering the new garage torn down, and from filing the criminal charge above referred to, a court of equity would grant the prayer of such a petition under the evidence disclosed by the record in this case.

I therefore respectfully dissent from the judgment of the majority members of the court in this case.


author: Wiseman, P. J.

text:
    Fyffe, Appellant, v. Eddington, Appellee.
    (No. 4903
    Decided October 6, 1953.)

      Mr. John E. Holmpfel, for appellant.

      Mr. Clifford L. Rose, for appellee.
   Wiseman, P. J.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Franklin County, sustaining defendant’s motion to quash service of summons.

Plaintiff, a resident of Columbus, Ohio, and defendant, a resident of Denver, Colorado, were involved in an automobile collision in Franklin county.

Plaintiff brought her action in the Common Pleas Court of Franklin County and proceeded to secure service on defendant under the provisions of Sections 6308-1 and 6308-2, G-eneral Code. Service was made on the Secretary of State, and service was attempted to be made on the defendant by sending by registered mail an attested copy of the service made on the Secretary of State to the defendant at his last known address in Denver, Colorado, as provided in Section 6308-2, General Code.

Service was made on the Secretary of State on July 11, 1952; service was mailed to the defendant on July 15, 1952; the return receipt was signed by a third party, showing that the letter containing the service reached the defendant’s address on July 18, 1952. The defendant died on July 17, 1952, one day before the registered letter was received.

Sections 6308-1 and 6308-2, General Code, being in derogation of the common law, must be strictly followed to invest the court with jurisdiction. Shaman v. Roberts, 87 Ohio App., 328, 94 N. E. (2d), 630; Hendershot v. Ferkel, 144 Ohio St., 112, 120, 56 N. E. (2d), 205. It is axiomatic that legal service must be obtained, otherwise the court is without jurisdiction. In Harris v. Owens, Admr., 142 Ohio St., 379, 52 N. E. (2d), 522, the court, in discussing the provisions of Sections 6308-1 and 6308-2, General Code, on page 382, said:

“The constitutional requirement of due process is assured through an accompanying statutory provision making it probable that notice of the service will be communicated to the nonresident defendant by registered mail or otherwise.”

Delivery of service to the defendant was rendered impossible by the defendant’s death. In our opinion the probability of service being made, which arises after statutory requirements are complied with, does not apply when it is shown that the defendant died before the service actually reached the defendant’s address.

We agree with the reasoning of the trial court that service was not complete when made on the Secretary of State, or when service was mailed to the defendant; and that‘the impossibility of making service on the defendant precluded the court from taking jurisdiction.

Judgment affirmed.

Miller and Hornbeck, JJ., concur.


author: Fess, J. Deeds, J.,

text:
    Colbert et al., Appellants, v. Coney Island, Inc., Appellee.
    (No. 7814
    Decided January 11, 1954.)

      Mr. Michel M. Turpeau, for appellants.

      Messrs. Rendigs, Fry & Kiely, for appellee.
   Fess, J.

In their amended petition, the three plaintiffs — negro women — citizens of the United States and of Ohio, and residents of the city of Cincinnati, bring their action on behalf of themselves and all other persons similarly situated pursuant to Section 11257, General Code, against the defendant corporation, the- proprietor and operator of Coney Island, a place of public amusement in Hamilton County, Ohio.

Plaintiffs allege that the defendant, on numerous occasions, refused admission to Coney Island to plaintiffs and other persons similarly situated, and thereby denied to the plaintiffs the full enjoyment of the accommodations and privileges of Coney Island.

Plaintiffs allege further that the defendant, through its agents, etc., in wilful violation of Sections 12940 and 12941, General Code, denied, and aided and incited others to deny, to plaintiffs the full enjoyment of the accommodations and privileges of Coney Island for reasons not applicable alike to all citizens and because of the color or race of the plaintiffs, notwithstanding the fact that plaintiffs applied for admission and tendered the admission price therefor.

Plaintiffs allege further that each of the three plaintiffs was denied admission upon certain specified dates and that other plaintiffs in the class they represent have been denied admission on innumerable occasions prior to and subsequent to such dates.

Plaintiffs allege further that as a result of the defendant’s conduct, the named plaintiffs, and those in the class they represent, have been denied their rights as citizens of Ohio, have suffered embarrassment and humiliation and have incurred expense in their endeavor to exercise their rights denied them by the defendant. They allege further that the repeated violations of Sections 12940 and 12941, General Code, will be continued unless defendant be enjoined from further violations, that plaintiffs will suffer irreparable harm by reason thereof, and that they have no adequate remedy at law.

Plaintiffs pray that the defendant, its agents, etc., be restrained from denying or aiding or inciting others to deny plaintiffs and the class they represent admission to Coney Island and the full enjoyment of the accommodations thereof because of their race or color, or for any reason not applicable alike to ail citizens, and, generally, for other relief.

A demurrer to the amended petition, on the ground that it does not state facts which show a cause of action, was sustained “for the reason tha+ said action was improperly brought under Section 11257, General Code.” The plaintiffs not desiring to plead further, the action was dismissed. Plaintiffs appeal on questions of law.

In support of the judgment below, defendant asserts :

‘ ‘ 1. The action is not a proper class suit.
“2. The statutory remedy is exclusive.
“3. The statutory remedy is adequate.
“4. The rules of statutory construction limit, the remedy to that given in the statute. ’ ’

The first question requires a review of the origin of Section 11257, General Code (Section 2307.21, Revised Code). Prior to the adoption of the New York Code of Civil Procedure, equity had developed the class suit as an exception to chancery rules of compulsory joinder, in order to enable the court to proceed to a decree where the number of necessary parties was so large that joinder of all as parties was inconvenient and impracticable. Brown v. Vermuden (1676), 22 Eng. Rep., 796; City of London v. Richmond (1701), 23 Eng. Rep., 870; Attorney General v. Jackson (1805), 11 Ves. Jr., 365, footnote 1, p. 372; Adair v. New River Co. (1805), 11 Ves. Jr., 429; Cockburn v. Thompson (1809), 16 Ves. Jr., 321. Without this exception, a litigant would be defeated on the ground of nonjoinder of all necessary parties.

Prior to the enactment of the New York Code of Civil Procedure, the Code .Commissioners had reported a section providing that those who were united in interest must be joined as plaintiffs, with certain exceptions. But the Legislature apparently apprehended that by adopting the rule reported by the commission, it might be understood to have rejected the exception permitting class suits. To prevent this apprehension, Code No. 119 was added, thus retaining in the new practice the same rules by which to determine whether the proper parties were before the court, which then prevailed in chancery. McKenzie v. L’Amoureux (1851), 11 Barb., 516, 518. The phraseology then employed in Section 119 of the New York Code was the same as that later enacted in the Ohio Code of Civil Procedure.

In the opinion in the McKenzie case, the court said: “The section in question requires that, except in a specified case, all who are united in interest shall be joined as parties; and then declares that when the action involves a question of common or general interest to several parties, or when, though united in interest, the parties are very numerous and it is impracticable to bring them all before the court, then one or more may sue or defend for all. ”

In Brenner v. Title Guarantee & Trust Co. (1937), 276 N. Y., 230, 11 N. E. (2d), 890, 114 A. L. R., 1010, the court said:

“Its purpose was not to provide for the joinder in one action of separate causes of action owned by different plaintiffs. Its purpose was rather to retain ‘in the new practice the same rules by which to determine whether the proper parties were before the court, which then prevailed in the court of chancery.’ ”

See, also, Kahn v. New York Life Ins. Co., 184 Misc., 417, 53 N. Y. Supp. (2d), 575, 577; Reinman v. Jaffe, 116 N. Y. Supp. (2d), 366, 368.

Prior to the adoption of the Ohio Code of Civil Procedure, in Smith v. Reuston (1833), 6 Ohio, 101, 25 Am. Dec., 741, Wright, J., in the opinion, said:

“In another class of cases, where a great number are separately interested in the same subject, one or more, for convenience, and to prevent delay, may litigate the right in chancery, for himself and all others interested; and the court having the subject and the parties operating before it, will so control as to protect the rights of all concerned. ’ ’

In Armstrong v. Treasurer (1840), 10 Ohio, 235, the Supreme Court recognized the principle but held that individuals who have no community of interest can not prosecute their several rights in one bill, stating:

“It is true they hold land derived from the same source and charged with a tax under similar circumstances. But still they hold in severalty separate parcels of land, each parcel charged with a separate amount of tax, and each parcel liable for the tax charged upon itself. Under these circumstances there is an improper joinder of parties * *

See, also, State v. Ellis (1841), 10 Ohio, 456.

In Platt v. Colvin (1893), 50 Ohio St., 703, 36 N. E., 735, the Supreme Court said:

“It was the general rule in chancery, before the adoption of the civil code, that suits must be prosecuted by the real parties in interest, and that all who were united in interest must be joined. There were, however, certain well-established exceptions to the rule, which, like the rule itself, were adopted for the convenient administration of justice. Among these exceptions, it is stated in Story’s Equity Pleading, Section 97, were ‘ (1) where the question is one of a common or general interest, and one or more sue, or defend, for the benefit of the whole; (2) where the parties form a voluntary association for public or private purposes, and those, who sue, or defend, may fairly be presumed to represent the rights and interests of the whole; (3) where the parties are very numerous, and although they have, or may have separate, distinct interests; yet it is impracticable to bring them all before the court.’ In speaking of the second class of exceptions above mentioned, it is said that ‘in cases of this sort the persons interested are commonly numerous, and any attempt to unite them all in the suit would be, even if practical, exceedingly inconvenient, and would subject the proceedings to danger of perpetual abatements, and other impediments, arising from intermediate deaths, or other accidents, or changes of interest. Under such circumstances, as there is a privity of interest, the court will allow a bill to be brought by some of the parties in behalf of themselves and all the others, taking care, that there shall be a due representation of all substantial interests before the court. ’ So that, the principle upon which that class of exceptions rested, is not different in substance, from that of the last class mentioned, namely', that the parties are numerous, and it is impracticable, in the convenient and speedy administration of justice, to have them all before the court; and the courts in many adjudged cases appear to have so regarded it. By reference to some of the cases it will be seen how the exceptions were applied in practice, and when it was deemed, by the courts, impractical to bring all of the parties, when numerous, before the court. ’ ’

The court then commented on Taylor v. Salmon, 4 M. & C. (18 Eng. Ch. R.), 134, and Walworth v. Holt, 4 M. & C. (18 Eng. Ch. R.), 619 (shareholders actions); Small v. Atwood, 1 Younge’s R., 407 (copartners); and Chancey v. May, Prec. in Ch. (Finch’s Chan. Cas.), 592 (members of an association) and said:

“There are many English and American cases of like character. Those already adverted to, sufficiently show the nature of the exceptions which obtained in chancery, to the general rule in regard to parties, the principle upon which they were based, and the manner of their practical application. The rule, and its exceptions, in their breadth and substance, were adopted into our Code (Sections 4993, 5007 and 5008, Revised Statutes), and, by its provisions made applicable to the civil action which it substituted for what was theretofore known as the suit in equity, and the action at law. ’ ’

It is therefore apparent that Section 11257, General Code, should be construed in the light of the purpose of its enactment in 1853, and also in pari materia with Sections 11254 and 11256, General Code.

It may be observed that in Smith v. Kroeger, Supt., 138 Ohio St., 508, 37 N. E. (2d), 45, the Supreme Court indicated that an action brought on behalf of the stockholders of a building and loan association was properiy brought as a class suit under or independent of Section 11257, General Code. Cf. Jensen v. Republic Steel Corp., 32 Ohio Law Abs., 29, 53.

The word, “question,” in Section 11257, General Code,- is synonymous with the phrase, “subject of the action,” in Section 11254, General Code. Quinlan, Aud., v. Myers, 29 Ohio St., 500, 508; Haggerty v. Squire, Supt., 137 Ohio St., 207, 28 N. E. (2d), 554; Wheatley, Trustee, v. A. I. Root Co., 147 Ohio St., 127, 69 N. E. (2d), 187; Davies v. Columbia Gas & Elec. Corp., 151 Ohio St., 417, 86 N. E. (2d), 603.

It has been said that in order for one to bring an action for the benefit of himself and others, there must be a community of interest plus a right of recovery based upon the same essential facts, and that all those on whose behalf the suit is brought must have an interest common or identical with that of the named plaintiff. Davies v. Columbia Gas & Elec. Corp., supra. There must be a community of interest as well as a right of recovery by reason of the same essential facts, Stevens v. Cincinnati Times-Star Co., 72 Ohio St., 112, 155, 73 N. E., 1058, 106 Am. St. Rep., 586, and the claim asserted must “aris^ from a common source and represent a like interest. ’ ’ Haggerty v. Squire, supra; Wheatley, Trustee, v. A. I. Root Co., supra. But it must be borne in mind that the provisions of Section 11257, General Code, are an exception to the provisions of Sections 11254 to 11256, General Code, applying to joinder of parties. In Davies v. Columbia Gas & Elec. Co., the Court of Appeals stated “we are of the opinion that a compliance with the joinder statutes (11254-11256) is not required in order to maintain a class suit under the provisions of 11257.” But the Supreme Court rejected this conclusion and construed the class suit as an exception to the requirement of actual joinder, justified by the impracticability of making numerous persons actual parties to the action. Each of the parties sought to be represented must have “an interest in the subject of the action, and in obtaining the relief demanded ’ ’ or must be ‘ ‘ united in interest” with the plaintiff.

The ‘ common ” or “ general interest ’ ’ referred to in Section 11257, General Code, is an “interest in the subject of the action, and in obtaining the relief demanded” as used in Section 11254, General Code, relating to permissive joinder. Parties represented in a class suit under Section 11257, General Code, must be such persons as may be joined under Section 11254. Mere community of interest in the issues of law and fact involved is not sufficient. Trustees v. Thoman, 51 Ohio St., 285, 37 N. E., 285; Duncan v. Willis, 51 Ohio St., 433, 38 N. E., 13; Stevens v. Cincinnati Times-Star Co., supra; Meeker v. Scudder, 108 Ohio St., 423, 140 N. E., 627; Davies v. Columbia Gas & Elec. Corp., supra. The decisions in Alcorn v. Barrett (Common Pleas, 1936), 22 Ohio Law Abs., 369, and Weinreich v. Permanent Bldg. & Sav. Assn. (Ohio App., 1937), 26 Ohio Law’ Abs., 545, are not in accord with the decisions of the Supreme Court.

The three plaintiffs herein obviously have a sympathetic interest in each other’s cause of action, but neither has any legal interest in the relief sought by each other. A common and important question of law is presented by each of the plaintiffs in which they have a community of interest, but their respective causes of action are separate and distinct. Section 11254, General Code, provides that all persons having an interest in the subject of the action and in obtaining the relief demanded may be joined as plaintiffs except as otherwise provided. Neither of the plaintiffs have any interest in the “subject of the action” of the other. The subject of the action in each case is the exclusion of each plaintiff from the premises of the defendant. There is not such a community of interest and right of recovery based upon the same facts between the plaintiffs and those they seek to represent as will permit joinder over objection. Bartges v. O’Neil, 13 Ohio St., 72; Masters v. Freeman, 17 Ohio St., 323; Duncan v Willis, supra; Taylor v. Brown, 92 Ohio St., 287, 110 N. E., 739; Miller v. City of Cincinnati, 70 Ohio App., 99, 42 N. E. (2d), 909 (action to enjoin an assessment); Ulmer v. Squire, Supt., 71 Ohio App., 369, 50 N. E. (2d), 178. For example, suppose the plaintiffs herein should fail to establish their right to relief. Certainly such determination would not thereafter bar an action brought by any member of the class sought to be represented. Nor could a decision favorable or adverse determine the rights of any of the unnamed persons whom they seek to represent.

In the Ohio cases denying the right to file a class action, a general community of interest was present, but those on whose behalf the action was brought did not have a legal interest common or identical with that of the person in whose name the suit was brought.

It is recognized that the conclusion herein reached is not in accord with the more liberal provisions of the federal rules of procedure which provide that one or more can sue for all, when the character of the right sought to be enforced for or against the class is several, and there is a common question of law and fact affecting the several rights and common relief is sought. Cf. Kansas City v. Williams, 205 F. (2d), 47; Williams v. Kansas City, 104 F. Supp., 848; Lopez v. Seccombe, 71 F. Supp., 769, referred to in Westminster School Dist. v. Mendez, 161 F. (2d), 774, 782.

Nor is it in accord with the modern practice in New York. Section 212 of the New York Civil Practice Act permits joinder of all persons in one action as plaintiffs if they assert any right to relief jointly, severally, or in the alternative in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all of them would arise in the action. It shall not be necessary that each plaintiff shall be interested in obtaining, or each defendant be interested in defending against, all the relief demanded, or as to every cause of action included in any proceeding. The conclusion does comport with the interpretation of Section 11257, General Code, consistently followed by the Supreme Court of Ohio in the citations referred to above and more recently in State, ex rel. Gerspacher, v. Coffinberry et al., Indus. Comm., 157 Ohio St., 32, 104 N. E. (2d), 1, and Masetta v. National Bronze & Aluminum Foundry Co., 159 Ohio St., 306, 112 N. E. (2d), 15, reversing 62 Ohio Law Abs., 374. The demurrer was, therefore, properly sustained upon the ground of misjoinder of parties plaintiff.

Does the Ohio Civil Rights Act afford the plaintiffs an adequate remedy at law?

In support of the judgment below, defendant, appellee herein, asserts that the provisions of the Ohio Civil Rights Act, Sections 12940 to 12942, G-enerai Code (Sections 2901.35 and 2901.36, Revised Code), provide an adequate and exclusive remedy at law. The Fourteenth Amendment to the Constitution of the United States, prohibiting the states from abridging the privileges and immunities of citizens of the United States, was ratified in 1868. Prior to the ratification of the federal civil rights amendments, the control of civil rights was exclusively within the domain of the several states, with certain exceptions provided in the federal Constitution. However, the guaranties of the Fourteenth Amendment relate only to action by a state and not to any action of private individuals. It does not deal with the invasion of individual rights by individuals. Hence, there is no authority under that amendment for an act of Congress designed to secure to all persons within the United States full and equal accommodations in public places without distinction because of race. 10 American Jurisprudence, 900, Section 7. The petition in the instant case is, therefore, brought under the provisions of the Ohio Civil Rights Act (81 Ohio Laws, 15), first enacted in 1884. As originally enacted, section one provided that all persons within the jurisdiction of the state should be entitled to the full and equal enjoyment of the accomodations, etc., in certain places open to the public, subject only to conditions and limitations established by law, and applicable alike to citizens of every race and color. Section 2 provided for a civil penalty and also a fine or imprisonment. When the Revised Statutes were codified in 1910, Sections 1 and 2 of the Civil Rights Act were rephrased by eliminating the positive statement granting equal rights, and substituting therefor the present phraseology that whoever should deny full enjoyment of the accommodations, etc., shall be fined, etc. Recovery of the civil penalty was provided in Section 12941, General Code. Dnder the established principle of statutory construction, the rearrangement of the phraseology in the 1910 revision is presumed to bear the same meaning and confer the same rights as the original sections, unless it appears that a change of more than the phraseology or mere rearrangement of the language was intended by the Legislature in enacting the revision. Since it is not clear that the Legislature intended to make a substantial change in the 1910 revision, the Code sections must be construed in the light of the original law. Ramon v. Spike, 92 Ohio App., 49, 109 N. E. (2d), 327. As above indicated, prior to 1884 no person previously denied the privileges granted in the act had any right of action for relief, but there is nothing in the act to disclose that it was intended by the Legislature to make the criminal and civil penalties either an adequate or exclusive remedy for one denied his civil rights.

In Tate v. Eidelman (1934), 32 N. P. (N. S.), 478, the Common Pleas Court of Mahoning County sustained a demurrer to a petition seeking an injunction under the Civil Rights Act on the ground that the jurisdiction of equity does not extend to a matter affecting an exclusive personal right, citing as authority Snedaker v. King, 111 Ohio St., 225, 145 N. E., 15. The Snedaker case wab a four to two decision, but it has not been overruled or modified. Throughout the United States, the general trend of recent cases has recognized as a principle that equity jurisdiction exists and will be exercised in appropriate instances for the protection of personal rights and that equity is not limited to situations in which a property right is involved. 175 A. L. R., 442. The rule announced in the Snedaker case in a per curiam opinion should therefore be applied only to actions to enjoin alienation of affections. The federal civil rights act, in terms, confers equitable jurisdiction so that cases arising under that act are to be distinguished.

Although unanimity of opinion is lacking, some states recognize injunction as among the remedies existing for the implementation of civil rights. Arloff v. Los Angeles Turf Club, 30 Cal. (2d), 110, 180 P. (2d), 321, 171 A. L. R., 713, and cases noted in 171 A. L. R., 926. Other courts have denied equitable relief, not necessarily upon the ground of nonprotection of a personal right but on the basis that the asserted right had no legal standing, either at common law or by the statute. Madden v. Queens County Jockey Club, 296 N. Y., 249, 72 N. E. (2d), 697; Greenfield v. Maryland Jockey Club, 57 A. (2d), 335; Neff v. Boomer (Neb.), 31 N. W. (2d), 222. Cf. 175 A. L. R., 477.

In Gillespie v. Lake Shore Golf Club, 56 Ohio Law Abs., 222, 91 N. E. (2d), 290, upon a trial de novo, the Court of Appeals for Cuyahoga County granted an injunction, but no jurisdictional question was raised. In Culver v. City of Warren, 84 Ohio App., 373, 83 N. E. (2d), 82, the same court, sitting by designation in another appellate district, upon trial de novo, entered a declaratory judgment and granted an injunction. This case arose, however, under the Fourteenth Amendment.

We concur, however, with the pronouncement of the Court in Kenyon v. City of Chicopee, 320 Mass., 528, 70 N. E. (2d), 241, 175 A. L. R., 430, that equity will protect personal rights by injunction upon the same conditions upon which it will protect property rights. In the instant case, the plaintiffs set up a right given them under the law of Ohio and the deprivation thereof by a continued course of conduct on the part of the defendant. Upon the face of the petition, it appears that a substantial right of the plaintiffs will be impaired to a material degree unless relief be granted and that the remedy at law is inadequate.

Upon the sustaining of a demurrer on the ground of misjoinder of parties, an order of severance, if requested, should be ordered. However, no such request was made in the instant case and plaintiffs elected not to plead further and the petition was dismissed.

Without prejudice to the rights of the several plaintiffs to separately prosecute in equity their several causes of action, the judgment of the Common Pleas Court is affirmed on the ground of misjoinder of parties.

Judgment affirmed.

Conn, J., concurs.

Deeds, J.,

dissenting. It is my view that the action involved od this appeal was properly brought as a class suit and I, therefore, do not concur in the decision of the majority of the court on that issue.

The suit was for an injunction, seeking to enjoin the defendant amusement company from denying to the plaintiffs and the negro citizens similarly situated, on the sole ground that they are negroes, the exercise of their right as such citizens to visit the public amusement park operated by the defendant as provided by Section 2901.35, Revised Code (formerly Section 12940, G-eneral Code).

An analysis of the allegations of the amended petition discloses that the plaintiffs, and the class represented by them, charge the deprivation of a right common alike to all of them as negro citizens and all seek the same equitable remedy in a single proceeding, for the reason that the persons aggrieved by the illegal action of the defendant are very numerous and it would be impracticable to bring them all before the court.

It seems clear to me that the plaintiffs and those they undertake to represent in the case come within the requirements of the law governing the right to maintain class actions, as interpreted and announced by the Supreme Court in Wheatley, Trustee, v. A. I. Root Co., 147 Ohio St., 127, 69 N. E. (2d), 187, the law applicable being stated in the fifth paragraph of the syllabus as follows:

“Where a number of persons have separate and individual claims and rights of action against the same party, but all such claims arise from a common source and represent a like interest, the whole matter may be litigated in a single action brought by all of the claimants as copiaintiffs, or, in case the parties are numerous making it impracticable to bring them all before the court, by one or more of them suing for himself or themselves and on behalf of the other claimants. (Paragraph two of the syllabus in Haggerty v. Squire, Supt. of Banks, 137 Ohio St., 207, approved and followed.) ”

The question of the right to maintain a class or representative action under the provisions of Section 2307.21, Revised Code (formerly Section 11257, General Code), was again considered by the Supreme Court in Davies v. Columbia Gas & Elec. Corp., 151 Ohio St., 417, 86 N. E. (2d), 603. In the opinion of the court by Judge Zimmerman, a clear, comprehensive statement concerning the conditions requisite for the right to maintain class actions is made, which, it seems to me, when applied to the facts alleged in the amended petition in the case being considered, requires a determination sanctioning the maintenance of the proceeding as a representative action.

The statement of Judge Zimmerman in the Davies case, supra, pages 420 and 421, containing an analysis of the Code provision pertinent here, together with the citation of prior decisions of the court involving the question, is as follows:

“There are three General Code sections relating to class suits, which should be considered together in disposing of the question whether the amended petition presents a cognizable class suit.
“Section 11254 provides:
“ ‘All persons having an interest in the subject of the action, and in obtaining the relief demanded, may be joined as plaintiffs except as otherwise provided.’
“Section 11256 reads, in part:
“ ‘Parties who are united in interest must be joined, as plaintiffs or defendants. ’
‘ ‘ Section 11257, recites:
“ ‘When the question is one of a common or general interest of many persons, or the parties are very numerous, and it is impracticable to bring them all before the court, one or more may sue or defend for the benefit of all.’
“Under the statutes quoted, for one to properly institute an action for the benefit of himself and others, there must be a community of interest plus a right of recovery based upon the same essential facts, and all those on whose behalf the suit is filed must have an interest common or identical with that of the person in whose name the action is brought. Trustees of Jackson Twp. v. Thoman, 51 Ohio St., 285, 37 N. E., 523; Duncan v. Willis, 51 Ohio St., 433, 38 N. E., 13; Stevens v. Cincinnati Times-Star Co,, 72 Ohio St., 112, 73 N. E., 1058, 106 Am. St. Rep., 586; 30 Ohio Jurisprudence, 741, Section 28.
“In the later cases of Haggerty v. Squire, Supt. of Banks, 137 Ohio St., 207, 28 N. E. (2d), 554, and Wheat ley, Trustee, v. A. I. Root Co., 147 Ohio St., 127, 69 N. E. (2d), 187, wherein the propriety of class suits was recognized and wherein the relief sought was primarily of an equitable nature, this court adhered to the rule that in order to prosecute a class suit, the claims asserted must ‘arise from a common source and represent a like interest.’
“It will be noticed that in both the Haggerty and Wheatley cases the respective plaintiffs and those they undertook to represent were affected in a similar manner and under like conditions and that the character of the relief which each member of the class represented might obtain was confined to what was asked for in the petitions.”

In the case before us, the plaintiffs are not undertaking to represent all the negroes residing in Hamilton County but are seeking equitable relief in the form of an injunction for only those negro citizens who desire to visit the public amusement park operated by the defendant and who would otherwise be refused admittance by the defendant on the sole ground that they are negroes.

Therefore, it appears that all of the negro citizens for whom the equitable relief is sought have an interest which is unquestionably a common interest and that they are very numerous, which makes it impracticable to bring them all before the court; that the same remedy, if and when granted, would afford a redress of their grievances individually and as a class in the single action.

Therefore, considering as I do that according to the allegations of the amended petition the plaintiffs and the class they represent are without an adequate remedy at law and that those necessary conditions for class actions are present in this case, I am of the opinion that the judgment of the Court of Common Pleas in sustaining the demurrer to and dismissing the amended petition was contrary to law, and that such judgment should therefore be reversed and the cause remanded to that court for further proceedings.

Fess, Conn and Deeds, JJ., of the Sixth Appellate District, sitting by designation in the First Appellate District.

      The New York Code Commissioners made their report in 1848. The Code containing the addition of Section 119 was enacted in 1849. The language appears to have been taken from Justice Story’s Equity Pleading, second edition, published in 1840. Cf. Platt v. Colvin, 50 Ohio St., 703; Flemming v. Mershon, 36 Iowa, 413, 417; 30 Michigan Law Review, 878.

      In Weaver v. Pasadena Tournament of Roses, 32 Cal. (2d), 833, 198 P. (2d), 514, the California Supreme Court has recently helo’ that the fact that numerous parties have separate and distinct claims against the same person will not alone suffice to sustain a representative suit, but also held that the parties sought to be represented need not be ~o united in interest with the actual plaintiff as to make them necessary parties.
      In Meeker v. Scudder, 108 Ohio St., 423, the Supreme Court held that applicants for a license to practice medicine undei the laws of Ohio must stand upon their individual rights and qualifications and they may not join for the purpose of instituting a class suit to determine the unconstitutionality of the statute. Here the plaintiffs had a community of interest in a common question of law, but could not join as individuals asserting their respective rights.

      For an interesting discussion of res judicata as a result of judgments in class actions, see 33 Cornell Law Quarterly, 327.

      As indicative of the confusion which has arisen under Federal Rule 23, see 46 Columbia Law Review, 818.