text:
    Biggs et al., Appellant, v. Bernard, Exr., Appellee.
    (No. 4791
    Decided November 8, 1954.)

      Mr. Wm. B. Devlin, for appellants.

      Mr. Charles J. Smith, for appellee.
   Deeds, J.

This is an appeal on questions of law from a judgment of the Court of Common Pleas entered by that court following the granting of a motion on behalf of defendant, appellee herein, for a judgment on the pleadings.

The parties will be referred to herein as plaintiffs and defendant, respectively, as they appeared in the Court of Common Pleas.

In substance, the pertinent allegations of the petition were that as partners plaintiffs were duly licensed as real estate brokers; that at the instance of the defendant, plaintiffs secured from certain named persons an offer to purchase, at a price stipulated, certain real estate owned by the defendant; and that such offer and the acceptance by the defendant on or about August 10, 1950, were evidenced by a written agreement, being marked “Exhibit A,” attached to and made a part of the petition.

It is alleged further in the petition that following the written acceptance of the offer by the defendant on or about August 10, 1950, the prospective purchasers made a deposit of $500 with the plaintiff pursuant to the terms of the agreement, and further agreed to pay the balance of the purchase price in the amount of $31,000 upon the performance of the conditions assumed by the defendant. The petition alleged further that upon the acceptance by the defendant of the offer, the defendant agreed in writing to pay plaintiffs for their services the Toledo Real Estate Board rate of commission, and that such payment of commission was to be made “on date of closing.”

The petition states further that on or about November 8, 1950, the purchasers were ready, willing and able to pay to defendant the selling price agreed upon and that thereupon the defendant failed, neglected and refused to perform the obligations and comply with the conditions assumed and agreed to be performed by the defendant in connection with the contract of sale.

Plaintiffs concluded the petition by alleging that they had performed all things on their part to be performed in securing a purchaser of the premises for the defendant and that there was due and owing the plaintiffs from the defendant the sum of $1,575, for which sum, with interest, plaintiffs prayed judgment against the defendant.

We quote here as being particularly significant and pertinent in a consideration of the issues involved on this appeal, two provisions of the “purchase contract” attached to and made a part of the petition, as follows :

“This sale to be consummated as soon as purchasers complete the sale of their property at 749 So. West-wood Avenue.
“Accepted and conveyance agreed to be made and Toledo Real Estate Board rate of Commission paid to Biggs & McCarthy.
(Signed) E. L. Bernard, Seller.”

It appears further from the record before us that on April 2, 1953, plaintiffs filed a supplemental petition in which it is alleged that since the filing of the petition on November 14,1951, the defendant Ebbert Louis Bernard died at Toledo, Ohio, and that an order was made reviving the action as against Errol Hugh Bernard, the duly appointed, qualified and acting executor of the estate of the decedent, and that the claim which was being made by plaintiffs had been presented to, and was rejected by, the defendant executor.

An amended answer of the defendant, filed March 10, 1954, admitted that plaintiffs were duly licensed real estate brokers; that plaintiffs had secured the offer to purchase the premises described in the petition; and that defendant accepted the offer and agreed to convey the premises for the price and according to the terms of said agreement; but specifically denied that the purported agreement was a valid, binding and en-forcible agreement.

Answering further, defendant averred that there was no contract in writing between defendant and the plaintiffs engaging plaintiffs to represent the defendant in the sale of the premises; that during the first week of August 1950, the plaintiffs brought the prospective purchasers to inspect the premises; and that the only agreement between plaintiffs and defendant was an oral agreement that if the sale was made and consummated defendant would pay plaintiffs the regular real estate board commission of five per cent of the sale price after the sale was closed and the purchase money received by the defendant.

The defendant alleged further, in the amended answer, that he was ready, willing and able to close the sale but that the prospective purchasers purchased another property as a residence and failed to conclude the purchase and carry out the terms of the contract to purchase referred to as exhibit A.

It appears also from the record before us that a reply was filed by the plaintiffs on January 22, 1954, as a reply to the answer of the defendant which had been filed on January 11, 1952, in which reply the plaintiffs denied “each and every statement and allegation in defendant’s answer contained which is not an admission of the facts and allegations stated in plaintiffs’ petition herein,” although the amended answer of the defendant was not filed until March 10, 1954. On the record before us, this court considers the reply as being filed to the amended answer of the defendant, notwithstanding it appears from the record, to have been filed prior to the filing of the amended answer as a reply to the answer of the defendant.

Wuest v. City of Cincinnati, 13 N. P. (N. S.), 249, 24 O. D. (N. P.), 522; Scott v. Hudson, 4 Dec. Rep., 392, 2 Clev. L. Rep., 97; Lovell v. Wentworth, 39 Ohio St., 614; Franc v. Nirdlinger, 41 Ohio St., 298; Shoe maker v. Standard Oil Co., 135 Ohio St., 262, 20 N. E. (2d), 520.

It is significant in considering the judgment now before the court that a judgment rendered on the pleadings is a judgment on the merits and, when sustained, results in a final judgment. Rhoades v. McDowell, Recr., 24 Ohio App., 94, 156 N. E., 526; May-field v. Kovac, 41 Ohio App., 310, 181 N. E., 28; 31 Ohio Jurisprudence, 884, Pleading, Section 292.

It follows from the foregoing proposition that if the pleadings and all reasonable inferences deducible therefrom present an issue of fact, the judgment can not stand and must be reversed in order that such issues of fact may be determined upon a trial of the cause as required by law. Cleveland Concession Co. v. City of Cleveland, 84 Ohio App., 193, 83 N. E. (2d), 818; Balduf, Exr., v. Evans, 95 Ohio App., 292, 297, 118 N. E. (2d), 848; 31 Ohio Jurisprudence, 876, Pleading, Sections 286, 287, 289, 290.

In the case now before the court, it is contended in part by counsel on behalf of the defendant that the plaintiffs are not entitled to recover from the defendant as a matter of law, for the reason that the contract of purchase, marked exhibit A attached to and made a part of the petition, is not an enforcible contract and that, therefore, plaintiffs, as brokers, are not entitled to the payment of a commission.

It becomes necessary, therefore, to consider the contractual relationship, if any, existing between the plaintiffs as brokers and the defendant, as well as the contract of purchase marked exhibit A, together with the allegations of the pleadings which are pertinent and proper, for the purpose of determining whether there are issues of fact presented which require evidence before a final decision can be had on the merits of the case.

The plaintiffs allege in the petition that the purchasers were procured “at the instance” of the defendant. Bouvier’s Law Dictionary defines the term “instance” as meaning “urging” or “solicitation.” “Instance” is1 defined in Webster’s New International Dictionary as meaning “urgent or earnest solicitation.”

As already stated, in referring to the allegations of the petition, the provision contained in the “purchase contract” which defendant admits the written acceptance of relating to the obligation to pay a commission, is as follows:

“Accepted and conveyance agreed to be made and Toledo Real Estate Board rate of commission paid to Biggs & McCarthy.”
Also, a consideration or test of the pleadings as against a motion for judgment makes highly pertinent the allegation contained in the petition, as follows: “payment of said commission to be made on date of closing.”

It is clear, therefore, that plaintiffs were employed by the defendant and were obligated by the terms of such employment to procure a purchaser who was ready, willing and able to purchase the property of the defendant, for which services the plaintiffs would be entitled to a commission in accord with the Toledo Real Estate Board rate of commission.

The law of the state did not require the agency contract whereby the plaintiffs were employed to be in writing. 8 Ohio Jurisprudence (2d), 87, Brokers, Section 14; Section 8621, General Code, as amended 1931, 114 Ohio Laws, 110, now Section 1335.05, Revised Code.

Further, it is not disputed that the “purchase contract” marked exhibit A, written acceptance of which is admitted by the defendant, contained all the essential requirements of a legally enforcible contract for the sale of real estate, but it is contended forcibly that the contract was rendered wholly unenforcible by reason of the provision or condition contained therein as follows: “This sale to be consummated as soon as purchasers complete the sale of their property at 749 So. Westwood Avenue.”

It is the view of this court that the condition above quoted did not nullify or render the “purchase contract” void as contended by counsel for the defendant, but that in view of the admitted acceptance of such condition in the contract by the defendant the enforcibility of the contract was only delayed until the condition precedent had taken place or had been accomplished. .

It is the view of this court that the contract, although conditional, was in conformity with, and not violative of, the established principles of law applicable to and controlling the formation of contracts of a conditional character. 1 Restatement of the Law of Contracts, 359, Section 250; (Also, see pocket supplement in Restatement, containing Ohio annotations, Chap. 10, Section 250); Good v. Robinson, 85 Ohio App., 91, 88 N. E. (2d), 200; Dependabilt Homes, Inc., v. Haettel, 81 Ohio App., 422, 76 N. E. (2d), 616; Negley v. Jeffers, 28 Ohio St., 90; Mumaw v. Western & Southern Life Ins. Co., 97 Ohio St., 1, 119 N. E., 132; 9 Ohio Jurisprudence, 464, Contracts, Sections 229, 230, 233.

It is contended further by the defendant to the effect that the “purchase contract” was.not subject to be enforced specifically, and that, therefore, plaintiffs were not entitled to payment of a commission. This contention is not in accord with the law as announced by the courts of this state. Durrell v. Reynolds, 24 C. C. (N. S.), 361, 27 C. D., 117; Lowis v. Spitznaugle, 23 Ohio App., 279, 155 N. E., 158; Barber v. Heade, 10 C. C. (N. S.), 342, 20 C. D., 127; Lohr v. Ford, 94 Ohio App., 17, 114 N. E. (2d), 300; Carey v. Conn, 107 Ohio St., 113, 140 N. E., 643.

Although the “purchase contract” was dated August 5, 1950, according to the allegations of the petition the prospective purchasers were not ready, willing and able to consummate the sale until November 8, 1950, and it is contended by the defendant, with support in reason, that it would be wholly unfair to expect that the defendant should be required, after the lapse of such an unreasonable length of time, to recognize the existence of the employment and the obligations of the conditional purchase contract, and that the defendant be required to pay plaintiffs a commission for the services rendered in the transaction.

The pertinent allegations of the petition relating to the completion of the services required to be performed by the plaintiffs are as follows:

“Plaintiffs say that thereafter, on or about November 8, 1950, the said Roy T. Bauman and Evelyn M. Bauman were ready, able and willing to pay to defendant the agreed selling price aforesaid; that defendant thereupon failed, neglected and refused to perform the obligations and comply with the conditions assumed and agreed to be performed by him in connection with the said contract of sale.
“Plaintiffs say that they have performed all things on their part to be performed in securing a purchaser of said described premises for said defendant; that there became due and owing to plaintiffs by defendant on December 1, 1950, the sum of $1,575, no part of which has been paid to plaintiffs by said defendant.”

It is not alleged or contended by the defendant that any notice was ever given to the plaintiffs that the employment had been terminated or that defendant had sold the property to any other purchaser or that for any reason the defendant did not intend and expect to recognize and consummate the “purchase contract” whenever the purchasers became ready, willing and able to consummate it.

It is the view of this court that the law applicable to the situation of the parties at that stage in their dealings has been announced clearly by the Supreme Court of the state in the case of J. A. Wigmore Co. v. Chapman, 113 Ohio St., 682, 150 N. E., 752. The first paragraph of the syllabus of the decision in J. A. Wig-more Co. v. Chapman, supra, is as follows:

“When the owner of real estate lists the same with a broker to find a purchaser for the property at a stated selling price, and agrees to pay the broker a commission for finding a purchaser, if within a reasonable time, where no time is fixed by the parties, the broker finds and presents a purchaser ready, willing, and able to take the property at the price and upon the terms stipulated before he is notified by the owner of any change in the selling price, or of any sale of the property by the owner or by another broker, and before the owner has withdrawn the authority of the broker to sell, the presenting to the owner of such a purchaser by the broker will complete his part of the contract and entitle him to recover his commission.”

See, also, Dependabilt Co. v. Haettel, supra; Richter v. First National Bank, 82 Ohio App., 421, 80 N. E. (2d), 243; Suter v. Farmers Fertilizer Co., 100 Ohio St., 403, 126 N. E., 304.

This court is not required and does not undertake to anticipate what the evidence in the case might be upon a trial. Nevertheless, it is clear and we hold that issues of fact were presented by the pleadings in the case and that the trial court committed error in making a determination of those issues upon the motion of the defendant and in rendering judgment. Therefore, the judgment is reversed and the cause remanded to the Court of Common Pleas for further proceedings.

Judgment reversed and cause remanded.

Fess and Conn, JJ., concur.


source: Caselaw Access Project

author: Hornbeck, J.

license: Public Domain

text:
    Tancer, d. b. a. Frank’s Tavern, Appellee, v. Board of Liquor Control, Appellant.
    (No. 4622
    Decided October 29, 1953.)

      Mr. Nelson Lancione and Mr. Joseph N. Bernabei, for appellee.

      Mr. C. William O’Neill, attorney general, Mr. Ralph N. Mahaffey and Mr. Robert B. Racly, for appellant.
   Hornbeck, J.

The plaintiff Tancer styles himself appellant in this court and the Board of Liquor Control as appellee, but the proceedings are directed to an appeal (No. 4622) wherein Tancer was appellee and the Board of Liquor Control was appellant. Tancer seeks by his petition to vacate a judgment of this court entered in case No. 4622 on April 29, 1952.

A motion to certify the record was filed in the Supreme Court and denied, and a motion to dismiss'the appeal filed as a matter of right was sustained on August 28, 1952. Among other questions urged here and in the Supreme Court was the claim that this court did not have jurisdiction to entertain the appeal because it was prosecuted by the Board of Liquor Control. We held against the claim of appellee.

On November 19, 1952, the Supreme Court in the case of A. DiCillo & Sons, Inc., v. Chester Zoning Board of Appeals, 158 Ohio St., 302, 109 N. E. (2d), 8, held that the defendant administrative board did not have the right of appeal from an adverse decision of the Common Pleas Court. Later, in Corn, d. b. a. Colonial Inn Restaurant, v. Board of Liquor Control, 160 Ohio St., 9, 113 N. E. (2d), 360, two cases from this court, dated June 10, 1953, the Supreme Court held that the Court of Appeals did not have jurisdiction to hear and decide an appeal prosecuted by the Board of Liquor Control from an adverse judgment of the Common Pleas Court.

There is no doubt that the judgment of the Supreme Court in the Corn case is contrary to the judgment of this court in this case, the appeal from which was dismissed in the Supreme Court.

The action of the Supreme Court in the DiCillo and Corn cases is made the basis of the petition to vacate the judgment in this case.

Petitioner relies upon Section 11631, General Code, which provides:

“The Common Pleas Court or the Court of Appeals may vacate or modify its own final order, judgment or decree, after the term at which it was made:
“1. By granting a new trial of the cause, within the time and in the manner provided in Sections 11578 and 11580.”

Section 11580, General Code, authorizes the filing of a motion for new trial after term on the ground of newly discovered evidence.

Petitioner contends that the subsequent action of the Supreme Court in the above cited cases constitutes newly discovered evidence. Two propositions are immediately suggested by the claim of petitioner:

1. May the action of the Supreme Court in the cited cases be classified as newly discovered evidence in this case?

2. Was the action of this court in reviewing the judgment of the Common Pleas Court a trial and would its reconsideration be a new trial?

Section 11575, General Code, defines a new trial as a re-examination of an issue of fact.

We cannot hold that the petitioner is correct on either of the foregoing propositions, but we have a third which, in our judgment, is dispositive of the right of this court to vacate its former judgment upon the special statutory proceedings.

This court in its final order entered judgment reversing the judgment of the Common Pleas Court, holding it for naught and affirming the decision of the Board of Liquor Control. There was no remand to the Common Pleas Court to carry our judgment into execution.

In the remand of the Supreme Court after sustaining the motion of appellee to dismiss the appeal it is, “ordered, that a special mandate be sent to the Court of Common Pleas of Franklin County to carry this judgment into execution,” and, “ordered, that a copy of this entry be certified to the Clerk of the Court of Appeals of Franklin County, ‘for entry.’ ” No mandate came to the Court of Appeals.

In our opinion, this order of the Supreme Court has taken the judgment heretofore entered by this court and by mandate made it the judgment of the Common Pleas Court. Section 12223-41, General Code; Roberts v. Montgomery, 117 Ohio St., 400, 159 N. E., 475. Therefore, the case of Townley, Admr., v. C. A. Miller Co., 139 Ohio St., 153, 38 N. E. (2d), 578, 139 A. L. R., 332, and particularly the first paragraph of the syllabus thereof has application. Of course, we appreciate that the cited case was clearly one wherein there was a trial in Common Pleas Court, the action there being for a money judgment. The opinion of Judge Bettman in its entirety will bear reading. He leans to the opinion that the Common Pleas Court was the only court which had the right to vacate the judgment there under consideration. At page 162, he says:

“But in our opinion, the jurisdiction of the trial court to grant a new trial should not be denied merely because the reviewing court is itself empowered to enter final judgment after reversal instead of having to command the trial court to do so. Whether, under Section 12223-38, General Code, the Court of Appeals itself renders the judgment that the Court below should have rendered, or adopts the alternative procedure of remanding the cause to the court below to render this judgment, we believe that the new judgment is substituted in the court below for the old judgment that has been held for naught, just as though the lower court had itself voluntarily vacated its own judgment and entered the new one.”

We hold that, in view of the mandate of the Supreme Court to the Common Pleas Court, we have not the authority to vacate the judgment entered in this court.

The prayer of the petition is denied.

Judgment accordingly.

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


author: Miller, J.

text:
    City of Columbus, Appellee, v. Gray, Appellant.
    (No. 5077
    Decided October 14, 1954.)

      Mr. Chalmers P. Wylie, city attorney, Mr. Malcolm M. Prine and Mr. Bush P. Mitchell, for appellee.

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

The defendant was charged in the Municipal Court of Columbus with unlawfully possessing or having in his custody or control numbers slips intended to be used as a memorandum in the process of the operation of a scheme of chance in violation of Section 29.48-2 of the city code. On trial being had by the court a finding of guilty was returned and sentence pronounced.

The errors assigned may be epitomized as being:

(1) The court erred in overruling defendant’s motion to suppress the evidence.

(2) The judgment is against the manifest weight of the evidence.

In support of the first ground the record discloses that a search warrant was regularly issued authorizing the search of the premises wherein the evidence was seized. The defendant urges, however, that the warrant was void for the reason that it did not state the name of the person to be seized. We do not think this was in violation of Section 13430-4, General Code, but, conceding for the sake of argument that it was, still the motion was properly overruled. If the search warrant was void, then there was no warrant and when contraband is seized as a result of an unlawful search it may nevertheless be introduced in evidence against the accused. City of Columbus v. Smith, 78 Ohio App., 66, 65 N. E. (2d), 716; State v. Lindway, 131 Ohio St., 166, 2 N. E. (2d), 490.

It is nest urged that the evidence does not support a conviction in that there was no showing in the record that the evidence produced was designed or intended to be used in a scheme of chance or in any way connected with the settling, paying or recording of an interest therein. The city ordinance, section 29.48-2, provides:

“Whoever shall within the city have in his possession, or in his custody or under his control, any ticket, check, writing, slip, paper, card, ball, cube, disk, or document, which represents or is a memorandum of, or is evidence of, or is intended to be used as a memorandum or evidence of, or which is designed or intended to be used in the process of making, settling, paying, registering, evidencing, or recording, a number of shares or an interest in a lottery, ‘policy,’ or scheme of chance, by whatever name, style or title denominated or known, whether located or to be drawn, paid or carried on within or without the city, shall be guilty of a misdemeanor and upon conviction shall be fined not more than five hundred dollars, or imprisoned not more than six months, or both.”

The record reveals that it was stipulated by agreement of counsel that the slips offered in evidence were number slips used in a scheme of chance known as the “numbers game,” to wit:

“By Mr. Vandervoort: Q. 80. Now I’ll show you what has been marked city’s exhibit B and ask you if that’s the book that was found by the adding machine? A. Yes, sir, it is.
“Mr. Vandervoort: Now, for the purpose of the record, counsel for the defendant and the prosecution will stipulate that this is a memorandum book used in the scheme of chance known as the numbers game; however, showing that the beginning date on this book is August 17th, 1953. Is that agreeable, now, Mr. Margulis?
“Mr. Margulis: That’s correct.
“Mr. Vandervoort: And there apparently are no other dates in this book.
“By Mr. Vandervoort: Q. 81. Now, I’ll show you city’s exhibit C which is an envelope containing a packet of slips which I believe we can stipulate for the purpose of the record by and between counsel for the prosecution and the defense that these are all the yellow copies of number slips from a numbers book used in a scheme of chance known as the numbers game, is that right?
“Mr. Margulis: Well, that isn’t enough there. I want the dates on there.
“Mr. Vandervoort: I’m going to stipulate that later.
“Mr. Margulis: Well, let’s stipulate it all together.
“Mr. Vandervoort: All right. And also that the packet of slips herein contained are all either undated or dated September 1st, 1953.
“Mr. Margulis: That’s agreeable. U # # *
“By Mr. Vandervoort: Q. 102. Now, Mr. Longer-bone, did you have any conversation with the defendant, Maceo Gray, after you had seized these slips and the other exhibits? A. I did. 1 asked him what he was doing with all the slips. He stated to me that he had to hold them for a certain length of time. And I asked him why, and he could give us no reason why.”

Counsel for defendant urges that since the arrest was made on September 4, 1953, and the slips offered in evidence were dated between August 17, and September 1, 1953, it could not be said they were intended to relate to any existing game of chance on the date of arrest. It will be noted that the ordinance does not fix the date upon which the game must be played in order to establish guilt, but merely requires that the ticket be designed or intended to be used in the process of recording or settling an interest in a lottery. In any scheme of chance it is common knowledge that a settlement cannot be made until after the game has been played. Hence, the ordinance is properly silent as to fixing any date upon which this must be accomplished. The character of the exhibits was established by the stipulation. The evidence discloses that the memoranda were used, as their totals had been run off on an adding machine slip, the tape of which was in evidence, and the defendant made the statement that he had to hold the numbers slips offered in evidence for a certain length of time.

We think the evidence supports the conviction and the judgment will be affirmed.

Judgment affirmed.

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


author: Hildebrant, J.

text:
    Prass, a Minor, Appellee, v. City of Cincinnati, Appellant.
    (No. 7673
    Decided March 16, 1953.)

      Mr. Gordon H. Scherer and Mr. Louis J. Schneider, Jr., for appellee.

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

In alighting from the rear door of a bus at a designated stop at the northwest corner of Vine and 7th Streets in the city of Cincinnati, the plaintiff stepped down upon a metal mushroom-shaped cap over the water service into the building at that point and fell to the sidewalk receiving injuries to her foot, for which the judgment for damages here appealed from on questions of law was entered following the verdict of a jury. The iron cover was circular, being seven and one-half inches in diameter, rising to its maximum height in the center of approximately one inch, with a minimum height of one-half inch at the perimeter, fitting flush with the sidewalk at a point about 12 inches from the curb, and held in place by an extension on the bottom, fitting as a collar down into the hole which it was designed to cover.

It is conceded that liability of the city must be predicated upon proof of dereliction of its statutory duty under Section 3714, General Code, to keep its streets open, in repair, and free from nuisance.

It appears from the record that this accident occurred about 2 p. m. of a clear, bright, dry October day, and that plaintiff was the first passenger alighting from the rear exit of the bus which was equipped with double doors, requiring pushing through by the person alighting, and that on this particular day the bus stopped in such a position that the metal covering on the sidewalk was directly in line with the center of the rear exit of the bus and directly in front of the passenger alighting. It was, therefore, plainly and prominently visible to anyone alighting from the bus.

Since the cap had been placed by the city in lawful exercise of a governmental function the court ruled out of consideration by the jury the question of absolute nuisance, and, also, charged that there was no evidence of any defect in the water cap and that having placed it there originally there was no question of notice in the case.

The court stated the question presented to the jury was whether or not it (the metal cap) is a nuisance by being an inch or inch and a half above the sidewalk.

The record negatives any suggestion of danger from the metal cap to the ordinary pedestrian’s use of the sidewalk. It is only when in position it happens to be directly in line with the center of the rear exit to the bus in the area upon which passengers are required to alight that any element of danger arises which might be said to create a potential and unreasonable risk of harm, which would satisfy the definition of a qualified nuisance. Without reiterating here the numerous statements as to the duty of the city under the statute and the distinction between absolute and qualified nuisance, we refer to the lengthy discussion contained in Taylor v. City of Cincinnati, 143 Ohio St., 426, 55 N. E. (2d), 724, 155 A. L. R., 44, upon those subjects.

Assuming the court to have been correct in submitting the case to the jury, we call attention to the testimony of the plaintiff as to what happened:

“Q. Pardon me, how close was the bus to the curb when it came to the stop, to the curb of the sidewalk? A. The wheels were, I imágine, right next to the curb because I stepped—
‘ ‘ Q. When it came to a stop, were you the — who was the first person to leave the middle door at Seventh and Vine? A. I was.
“Q. Do you recall whether any persons were behind you or not? A. Yes, there were.
“Q. What did you do after the bus came to a stop? A. Why, I was standing there, I was the first one to get off and I pushed the door open. As I was pushing the door open, I started to step and just as I was — I was off balance and my foot hit the object 1 saw it — I slid off it and turned my ankle, the bone in my foot.
a # # *
“Q. As you pushed the door open will you tell the jury what you did? A. As I pushed, I started to step, in the process of stepping I looked down and I saw it. I pushed the door open and naturally I looked for the sidewalk with my foot out. I seen it all in the same motion I pushed the door open, the fraction of a second before I hit it 1 saw it * * *.
“Q. Now when you say you saw it, will you tell the jury what you stepped on? A. Well, it was rounded and smooth, a round brass object.
“Q. About how big was it? A. About three and a half inches or bigger, I don’t know. All I could describe in inches, about seven and a half inches, I think that’s what it was.
“Q. You mean across. A. In diameter, across.
“Q. About how high was it? A. About an inch and a half off the ground.
“Q. Would you describe the top shape of it? A. Mushroom-shaped top, it was round, it was smooth. There was no flat top to it.
“Q. When your foot hit it, what happened to the rest of your body? A. My foot hit it and it slid and I guess, turned. I just came down with all my weight on that foot.
“Q. Did you fall? A. I fell to the sidewalk.
“Q. This object that you have just described, this metal object, where was it with reference to the middle door of the bus where you got out? A. It was right in the middle of the door.
“Q. How far, about, was it from the edge of the curb? A. It was — gosh, about sis inches, a foot maybe,. I doubt if it was as big as a foot away from the curb.
“Q. It was on the sidewalk? A. It was on the sidewalk.”

This court in Stoffel v. City of Cincinnati, 87 Ohio App., 235, 93 N. E. (2d), 303, in substance, has expressed the view that due care does not require the pedestrian to walk with eyes glued to the surface of the sidewalk in search of possible defects. However, where one is required to step down in alighting from a bus, due care would seem to require visual examination of the surface area upon which such person is about to step.

The condition here was clearly apparent. She testified she saw it, but being off balance stepped upon it anyway, which statement carries with it the implication that she stepped with more than normal emphasis proportionate to her unbalance. Such • testimony on the part of the plaintiff seems clearly to bring the case within the rule stated in Winkler v. City of Columbus, 149 Ohio St., 39, 77 N. E. (2d), 461, wherein it is stated in the- syllabus:

“Where, in an action for personal injury, plaintiff’s testimony amounts to an admission that she was guilty of negligence at the time and place, which contributed directly to her injury, it is the duty of the trial court to sustain a motion for a directed verdict in favor of defendant. (Paragraph four of the syllabus of New York Central Rd. Co. v. Stevens, Admr., 126 Ohio St., 395, approved and followed.)”

In the body of the opinion at page 44, the court said:

“The Court of Appeals assumed that because plaintiff testified one vay in chief and contrarily on cross-examination, the case should be left to the jury to choose between her conflicting statements. That would be proper in the case of an ordinary witness, but where the testimony involved is that of the plaintiff and the plaintiff’s testimony whether in chief or cross-examination, discloses negligence on the part of plaintiff contributing directly to her injury the fact has been settled and the matter becomes a question of law to be determined by the court.”

The judgment is, therefore, reversed, and final judgment is entered for the defendant.

Judgment reversed.

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


author: Per Curiam.

text:
    McGregor, Appellant, v. Heitzman, Appellee.
    (No. 7771
    Decided October 19, 1953.)

      Messrs. Dolle, O’Donnell, Cash, Fee & Hahn, for appellant.

      Messrs. Brumleve, DeCamp é Wood, for appellee.
   Per Curiam.

The defendant was the owner of an unimproved tract of land adjoining the playground of the Kilgour Public School. Its surface was level and was about three feet above the surface of the school yard. The dividing line was marked only by a row of trees and the declivity. In June 1951, the defendant’s lot was covered by growing weeds and grass some two or three feet tall. The defendant was notified by public authority that he should cut the weeds. He had had the weeds cut in previous years, and proceeded to inquire to ascertain whom he could get to cut them for him this time. Through another person, and without any direct contact, he secured Charles Feck to do the cutting. Charles Feck had a team and a mower and held himself out to do mowing for anyone in the community who would employ him. In a conversation with Mrs. Charles Feck, the terms were agreed upon, Charles Feck to cut the weeds for $10. Charles Feck had in his employ a man who took care of the work for him. He was advanced in years, but there is no evidence that he was incompetent, and there is no evidence that the defendant had any information on that subject at the time he entered into the contract with Feck.

Feck sent his team and mower to the defendant’s lot in charge of his employee, who started to cut the weeds with the mower. There were several school children playing in the school yard and some came upon the defendant’s lot. They were ordered off the lot and the school supervisor gathered the children including the plaintiff about her and warned them against going on the defendant’s lot. Notwithstanding the warning, some, including the plaintiff, returned to the lot.

The undisputed evidence is that the plaintiff, without the knowledge of Feck’s employee, approached the mowing machine while it was in motion, stepped from behind the sickle to immediately in front of it, and was caught by the sickle. Nevertheless, the driver of the mowing machine was able to stop it almost at once. The plaintiff was severely injured.

This action was instituted to recover damages for the injuries.

In his petition the plaintiff alleged the following as the basis for his claim of defendant’s liability:

(1) Failure to warn plaintiff of the dangerous nature of the mowing machine or otherwise protect him from it.

(2) Failure to exercise reasonable care in the employment of the person to do the work and in permitting the work to be done by an incompetent.

(3) In doing the work at a time and manner so as to unnecessarily expose plaintiff to danger.

(4) In operating the machine when he knew or should have known that its operation was likely to cause harm to persons in the immediate vicinity.

The defendant, after admitting the injury to plaintiff by contact with the mower, in effect, entered a general denial. In explanation, he alleged that the mowing was being done by an independent contractor.

The issues of fact as made by the pleadings were submitted to a jury which returned a verdict for the defendant. Judgment was entered on the verdict for the defendant. That is the judgment now under review.

An examination of this record discloses that the plaintiff was warned of the danger and to keep off the lot, and that he went upon the lot notwithstanding. We fail to find any basis in the evidence for liability on this ground, even assuming that the evidence disclosed a situation where a duty to warn arose. We do not find that any such situation existed.

As to the claim of liability based on negligence in employing an incompetent, there is no evidence whatever that the operator was incompetent. Furthermore, there certainly is no evidence that the defendant knew of any such incompetency at the time this contract was made for the mowing of the weeds and grass.

While plaintiff asserted negligence in the manner of operating, no negligence was proven. It seems to be the plaintiff’s contention that if the defendant mowed the weeds and grass on his own land, he was obliged to do it in such a way and at such a time as would preclude injury to any one who might happen to come upon the land without invitation, and especially because his lot adjoined the school yard where many children congregated and where the likelihood of trespassing was greater. We do not think any liability can rest on such a basis.

Notwithstanding his immature age, the plaintiff was a trespasser. Most favorably construed, his status could not be more than that of a licensee toward whom no duty to keep the premises in a safe condition existed. Furthermore, there was no evidence of any defect in the premises. It is not claimed that plaintiff was injured because of defective premises.

The defendant at no time personally came within such distance of the plaintiff that his personal action would likely cause harm to the plaintiff. The defendant can be brought into such closeness vicariously, through attributing to him responsibility for the conduct of the operator of the mowing machine, and that could be done only by a finding that the relation of master and servant existed between them, rather than the relation of independent contractor and contractee.

For the relation of master and servant to exist, the former must have the right to direct as to the mode and manner of doing the work. If the employment is to have a certain result accomplished, leaving it to the employee as to the mode and manner of accomplishing that result, the relation of independent contractor and eontractee is disclosed.

Feck had an independent business. He owned the team and mower. He held himself out to furnish service for all who might apply. He employed the operator. He chose the time of doing the work — when he should begin and stop. He was paid by the job and not by the time consumed. All these are indicia of the relation of independent contractor and eontractee.

Counsel rely on Benjamin v. Lawson, 83 Ohio App., 159, 83 N. E. (2d), 95. We think it is clearly distinguishable. In that case, the defendant owner of an apartment building employed a plumbing contractor to repair gas pipes which necessitated making a hole in the floor of a hallway used by all tenants, of which the plaintiff was one. The hole was not properly guarded and plaintiff stepped into it and was injured. She sued for damages on account of her injuries.

The issues were submitted to a jury which found for the plaintiff. The appeal was from the judgment rendered on that verdict. Many errors were assigned, one of which was that there was no evidence of the relation of master and servant between the defendant and the plumbers sent to do the work by the plumbing contractor. At page 166, the court said that all the evidence introduced tended to prove that the plumbing contractor’s relation was that of an independent contractor, and then said:

“The question then arises whether the evidence quoted is sufficient to require the submission to the jury of the issue as to whether the persons actually engaged in the performance of the work were the agents, servants or employees of the defendant, Lawson, or the agents, servants and employees of Cunningham as an independent contractor.” (Emphasis ours.)

This statement was preceded by a quotation from the testimony tending to show that defendant had assumed to direct the persons who actually did the work. As a matter of fact the court reversed the judgment in Benjamin v. Lawson, supra, for error in the charge in assuming that the relation of master and servant existed.

In the case at bar the defendant did not interfere in any way between Feck' and his employee. He did not assume to direct the mode and manner of doing the work.

Of course, had the defendant directed the mode and manner of doing the mowing, his liability, if any. would rest on that fact and not result from his contract with Feck, and Feck’s status as an independent contractor in relation to the defendant would not necessarily be changed, but the relation between the defendant and the person actually doing the mowing would be radically altered. In effect, he would become the master and the mower his servant.

We can see no basis, however, for holding that the operator of the mower was the servant of the defendant. Accordingly, there is no legal basis for imposing responsibility for the negligence, if any, by the operator.

For these reasons, the judgment is affirmed.

Judgment affirmed.

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


author: Ross, J.

text:
    Hirschauer, Appellant, v. Davis et al., Appellees.
    (No. 222
    Decided May 22, 1954.)

      Mr. Harry Oehler and Messrs. Nichols, Speidel é Nichols, for appellant.

      Messrs. Ely, White & Davidson, for appellees.
   Ross, J.

This is an appeaj on questions of law from a judgment of the Court of Common Pleas of Clermont County in favor of the defendants, consequent upon a verdict of a jury.

The action is based upon liability imposed by Section 5838, General Code, amended, effective September 10, 1951 (now Section 955.28, Revised Code).

The incident involved in this litigation occurred November 8,1951.

In the amended petition, it is alleged that the defendants were the owners of a certain St. Bernard dog, and the plaintiff was the owner of a tractor-trailer, driven by an employee; that while such vehicle was being driven on highway No. 74 in Clermont County, this dog, being large and massive in size, ran out of defendants’ yard, situated on the south side of the highway, directly into the path of such vehicle; and that the sudden act of the dog caused the employee to swerve the tractor-trailer in an endeavor to avoid striking the dog, but that the rear of the vehicle struck the dog, the vehicle went out of control and ran off the north side of the road, where it overturned and was completely demolished.

It is alleged further that the dog ran into the highway in response to a whistle of one of the defendants.

In an answer, verified only by Margaret Davis, it is alleged that the defendants are the owners of a farm situated on both the north and south sides of highway No. 74; that they were the owners of two St. Bernard dogs; that one of the dogs crossed the road; that a tractor-trailer was operated by the employee of plaintiff on such highway; and that such employee lost control of the vehicle and wrecked it.

It is alleged further that the damage to such tractor-trailer was caused solely by the defective condition of such truck and the careless and negligent manner in which the employee operated the vehicle. Otherwise, the answer is a general denial of the allegations of the petition.

There can be no question that the evidence conclusively shows the ownership and operation of the tractor-trailer as alleged in the amended petition; that a dog, owned by the defendants, started to cross the highway; that the operator swerved the vehicle away from the dog to the north side of the highway; that the rear part of such vehicle struck the dog when it was on the south side of the highway; that a wheel of the tractor ceased to turn; and that the entire outfit went across to the north side of the highway, overturned and was completely demolished.

It is evident that both counsel for the defendants and the court misconstrued this action as one for negligence on the part of the defendants, instead of a purely statutory proceeding under the provisions of Section 5838, General Code, as amended September 10, 1951, the statute applicable to the incidents occurring on November 8, 1951. The misconception may have been caused by a purely unnecessary and irrelevant allegation of the petition, in which it is stated that the dog in response to a whistle of one of defendants started to cross the highway from south to north.

No cause of action was set up for negligence of the defendants. The allegation constituted pure surplus-age in the amended petition. There is no allegation that the damages of the plaintiff were caused by the act of the defendant in whistling for his dog. On the contrary, it is specifically alleged that such damage was caused by “the sudden act of defendants’ dog.” Even if by any stretch of the imagination such irrelevant allegation could be extended into one justifying a cause of action in negligence (which we hold not to be the case) a clear-cut cause of action was stated under the statute, and the plaintiff was entitled to have that cause of action clearly stated to the jury, which was not done. McIntosh v. Doddy, 81 Ohio App., 351, 77 N. E. (2d), 260.

Another complete misconception, influencing the presentation of the case to the jury, occurred in construing the amended section of the statute. A number of authorities cited are predicated upon the statute before amendment. One similarity exists. In both the earlier and present forms the section of the statute is addressed to two entirely different situations: First, the right of a person to kill a dog which “chases, worries, injures or kills sheep,” and, second, the liability of an owner or harborer of a dog for damage and injury done. The two provisions of the statute are indicated in the titles of the earlier and later forms of the statute. The earlier form is found in 94 Ohio Laws, 118, Sections 1 and 2; the latter in 124 Ohio Laws, 428, 430, effective September 10, 1951.

In the earlier form of the statute it will be noticed that the liability of the owner is imposed for the act of “such dog,” to wit, one which chases, worries, injures, or kills sheep, etc. In the present form of the applicable statute, Section 5838, General Code, it is provided that the owner or keeper of a dog is liable for damages caused thereby. In the earlier section, the liability for such dog was unqualified. In the present section there are exceptions in favor of the owner or keeper against a trespasser, or where the person injured was teasing or tormenting the dog. The net result of these changes is now, with the exceptions noted, which are inapplicable to the facts herein involved, to make the owner or keeper of a dog liable for damages proximately caused by the owner’s or keeper’s dog; the statement in the present statute, referring to chasing, worrying, etc., applying to the animal which may be killed. This part of the section is completely divorced from that part of the section dealing with the liability of the owner or keeper of a dog. No clearer language could be used: “The owner or keeper shall be liable for any damage or injuries caused by a dog.”

The issues in the instant case were therefore: first, The ownership of the dog (admitted); second, whether the act of the dog was the proximate cause of the damages to the property of the plaintiff; third, did the plaintiff’s employee do what a reasonable man would do under the same or similar circumstances; and fourth, the extent and value of the property damaged.

See 2 Ohio Jurisprudence (2d), 466, Section 90 et seq., and annotations.

The plaintiff complains that the court refused his special charge No. 1, which is as follows:

“I charge you., members of the jury, that the law of Ohio imposes an absolute liability on the owner of a dog which causes damage or injury, and knowledge, fault, negligence or contributory negligence are not involved, and if you find from the evidence in this case that the dog in question was owned by the defendants and caused the accident at issue, then your verdict must be for the plaintiff.”

This charge contained a correct statement of the law applicable to the facts in the case, and the refusal to give such charge at the request of plaintiff constituted error prejudicial to the plaintiff.

Special charge No. 2, requested by plaintiff, is essentially the same as charge No. 1, except that no reference is made to “knowledge, fault, negligence or contributory negligence.”

If the court had given the first charge, it would not have been error to refuse the second. Independently of each other, both were correct.

Special charges Nos. 3, 4, 5 and 6 were given by the court at the request of the defendants and over the objection of the plaintiff.

Charge No. 3 is as follows:

“I charge you ladies and gentlemen of the jury, that if you find the plaintiff (himself or by and through the driver of the truck) was guilty of any negligence and that this negligence contributed in the slightest degree to the injuries of which the plaintiff complains in his petition, then your verdict should be for the defendant.”

This charge erroneously injects the element of negligence into the case and was prejudicial to plaintiff.-

Special charge No. 4 is:

“I charge you ladies and gentlemen of the jury, that should you find from the evidence that the brakes on the plaintiff’s truck when applied caused the left front wheel to lock, and that it is likely as otherwise, that this locking of the left front wheel, was the proximate cause of the injuries of which the plaintiff complains, your verdict should be for the defendant.”

“Likely as otherwise” means simply it was possible. Proof of mere possibility is not sufficient. The burden rested upon plaintiff to prove by a preponderance of the evidence that the act of the dog was the proximate cause of his damage. The defendants in endeavoring to rebut the evidence introduced by plaintiff to such effect might introduce evidence showing that there was a cause which would clearly exclude the act of the dog as the proximate cause of plaintiff’s damage. Evidence that it might have such effect is' not enough. A possibility is not a probability with which juries deal. Gerich v. Republic Steel Corp., 153 Ohio St., 463, 92 N. E. (2d), 393; Stevens v. Industrial Commission, 145 Ohio St.,. 198, 61 N. E. (2d), 198; Pfister v. Industrial Commission, 139 Ohio St., 399, 40 N. E. (2d), 671; Drakulich v. Industrial Commission, 137 Ohio St., 82, 27 N. E. (2d), 932.

This charge also excludes the reason for the locking, if such existed.

Long skid marks on a road are evidence of locked wheels, caused by normal pressure upon the brake. Such static condition of a wheel may or may not have been a factor in the chain of circumstances initiated by the act of the dog in dashing into the highway and ultimately resulting in the plaintiff’s damages. It was for the jury to say whether some cause intervened breaking the causal connection between the original action of the dog and the damages to the tractor-trailer. The mere fact that such wheel became “locked” or static would not necessarily excuse the defendants. Such locking may have been the result of a perfectly natural impulse upon the part of a reasonable man to avoid injury to the dog, himself, and the vehicles. The giving of this charge constituted error prejudicial to the plaintiff.

Special charge No. 5 requested by the defendant is:

“I charge you ladies and gentlemen of the jury, that if you find from the evidence that the left front wheel of the plaintiff’s truck locked when the driver attempted to stop and that the driver of the truck could have stopped the truck before it hit the dog, if the wheel of such truck had not locked, and that the truck would not have gotten out of control and upset, but for such locking of the left front wheel, then your verdict should be for the defendant.”

The objections applicable to charge No. 4 apply to this charge. Both leave out of consideration the question of whether the plaintiff’s employee acted reasonably under the circumstances and the part the dog played in the whole incident.

The charge is also objectionable in that it is in effect merely an argumentative statement of evidence which was in dispute.

In the general charge, to which objection is made, the court stated one of the issues presented to the jury was: “Did the dog chase or worry the plaintiff?” The plaintiff was the owner, not the driver, of the tractor-trailer. And it was wholly immaterial whether the dog chased or worried either the plaintiff or the employee. The issue is, was the action of the dog the proximate cause of the damages suffered by the plaintiff? The second part of the statute does not deal with chasing or worrying dogs — it deals with a dog. Decisions of courts when the statute contained the words, “such dog,” are not controlling. “Such dog” may have had proper application in those cases to such chasing or worrying dog. Inadvertence may not account for the change in verbiage.

The court stated as another issue: “As a proximate cause of such chasing or worrying, was the plaintiff damaged as set forth in the petition ? ’ ’

The same criticism applies to this statement.

The court stated as another issue: “Were the defendants negligent ? ”; a wholly immaterial matter. It is not in this action a question of what the defendants did or did not do. It is a question of what the dog did and caused the plaintiff’s employee to do.

Again, the court stated as another issue: “Was the plaintiff guilty of negligence which directly contributed to or caused his damage?”

It is difficult to see how the negligence of plaintiff could have been the sole, proximate cause of his damages. In any event, the issue was whether the actions of the dog were the proximate cause of the damages. This was the issue attempted to be stated.

Then the court stated the burden is on the plaintiff to “establish these facts,” except contributory negligence.

The court then proceeded to charge on negligence and contributory negligence, all of which misled the jury as to the nature of the action they were considering.

The judgment of the trial court will be reversed and the cause remanded for a new trial, because the court, in special charges, refused and given, and in its general charge, failed to state the issues presented by Section 5838, General Code, as amended September 10, 1951, and the pleadings and evidence in this case, and erroneously to the prejudice of the plaintiff misstated such issues, by injecting into the case defenses available to the defendants which were not provided for in such statute, and by placing upon the plaintiff burdens of proof not sustained by law.

Judgment reversed and cause remanded.

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


author:
      Per Curiam.

      Per Curiam.

text:
    The Columbus Building & Construction Trades Council et al., Appellants, v. Moyer, Dir., Ohio State Department of Public Works, et al., Appellees.
    (No. 5043
    Decided March 9, 1954.)

      Messrs. Hamilton & Kramer and Mr. Joseph R. Hague, for appellants.

      Mr. C. William O’Neill, attorney general, Mr. Robert E. Leach and Mr. Thomas R. Lloyd, for appellees.
   Per Curiam.

This appeal is from a declaratory judgment defining the rights of the parties and construing, particularly, Section 2314-2, General Code.

The pleadings are voluminous; the briefs even more so. Appellants consider and discuss at great length and most capably eight certain rules of construction. If there is any material ambiguity in the section under consideration, then one or more of these rules would be helpful. If the language of the section will permit of but one reasonable interpretation, there is no necessity of invoking constructive assistance.

Sections 2314-1 and 2314-2, General Code, were enacted at the same time, effective October 4, 1933, and many years subsequent to other sections in the chapter of the Code treating of building regulations.

Section 2314-1, General Code, provides, so far as it pertains:

“Every department * * * charged with the duty of preparing plans # * * for the erection, alteration or repair of any building in the state of Ohio, by the state of Ohio * * * which shall provide for the installation of plumbing and gas fitting and all work kindred thereto, or of the steam and hot-water heating, ventilating apparatus, steam-power plant and all work kindred thereto, or the electrical equipment and all work kindred thereto, shall, when the entire cost of the erection, alteration or repair or the plumbing and gas fitting and ail work kindred thereto, or the steam and hot-water heating, ventilating apparatus, steam-power plant and all work kindred thereto, or the electrical equipment and all work kindred thereto, is to exceed the sum of one thousand dollars, hereafter prepare separate plans, specifications and blue prints for each of the following branches or classes of the work to be performed:
“First, plumbing and gas fitting, and all work kindred thereto;
“Second, steam and hot-water heating, ventilating apparatus, steam-power plant and all work kindred thereto; and
“Third, electrical equipment, and all work kindred thereto.
“Such plans * * * must be so prepared and drawn as to permit separate and independent proposals and bids upon each of the branches or classes of work in the three above subdivisions.”

Section 2314-2, General Code, in part, provides:

“Every department * * * charged with the duty of awarding * * * contracts for the erection, alteration or repair of any building in the state of Ohio, by the state of Ohio * * * and charged with the duty and duly empowered to award * * * contracts, which shall provide for the installation of plumbing * * * or the steam and hot-water heating * * * or the electrical equipment * * * shall, when the entire cost of the erection, alteration, or repair of the plumbing and gas fitting * * * or the steam and hot-water heating * * * or the electrical equipment * * * is to exceed the sum of one thousand dollars, hereafter award the respective work specified in the subdivisions mentioned in Section 2314-1 of the General Code separately to responsible and reliable individuals, firms or corporations.” (Emphasis ours.)

The language italicized presents the controversy. The immediate question is: May an award be made on bids in combination on two or more of the classes of work set forth in the sections ?

On December 1, 1933, the Attorney General, answering a letter raising the above question, held that under the terms of Section 2314-2, General Code, the Director of Public Works is required to make separate contracts based on separate bids for the heating, plumbing, and electrical work for a state building, when the entire cost of the work covered by each or any of such three classes exceeds $1,000. The rationale of the opinion of the Attorney Genera] is that the language of the section under consideration is clear and will not permit of any other reasonable construction than that which he determined. See Vol. 3, Opinions of Attorney General (1933), 1838, No. 1940.

We have considered all the sections of the Code cited and commented on by counsel. We recognize that it is the policy of the law relating to contracts by the state for general building construction to permit and by statute to provide for combination bids for the work. If the section under consideration could be so construed, it would be harmonious with other legislation. On the other hand, the enforcement of the provisions of Section 2314-1, General Code, can be accomplished by reading it as special in its provisions relating to different classes of work than Sections 2317, 2363 and 2364, General Code. All these latter sections by specific provisions authorize separate or combination bidding. The failure to so provide in Section 2314-2, General Code, is convincing that there was no purpose so to do.

The only uncertainty that we find in the context of Section 2314-2, General Code, arises from its grammatical construction. Does the word, “separately,” modify the word, “mentioned”? This would be the ordinary construction. Does the word, “separately,” modify the word, “specified”? This would be the second choice in construction and, finally, does it modify the verb, “award”? If so, one would expect it to be immediately before or immediately after “award.” If the word, “separately,” modifies either “mentioned” or “specified” it could refer to the three separate and distinct classes set up in Section 2314-1, General Code, namely:

First: plumbing and gas fitting.

Second: steam and hot-water heating.

Third: electrical equipment.

If “separately” modifies “award” then, manifestly, it requires the construction that the “award” for the “respective work” must.be made “separately” to responsible and reliable individuals.

If the construction other than the last mentioned is adopted, the section would have little meaning other than to make provision for bids when the entire cost of the installation of the named improvements shall exceed the sum of $1,000. It would then provide only that such award of contracts for the work bid upon shall be made to responsible and reliable individuals. This construction would seem to be out of harmony with the manifest purpose of the section. Section 2314-2, General Code, is headed “contracts awarded separately,” and its tenor and effect and that of Section 2314-1, General Code, which precedes it, is in accord with the construction which the Attorney General placed upon the controverted language.

Although we have approached the question here presented originally and have carefully considered Sections 2314-1 and 2314-2, General Code, in connection with all other legislation related thereto, we must give weight also to the opinion of the Attorney General which has stood without modification by court decision or by subsequent legislation for more than 20 years. The objection which counsel for appellants forcibly and cogently urge against the reasonableness of this legislation should be persuasive with the lawmaking bodies. The fact that throughout the years the Legislature has not seen fit to remove Section 2314-2 from the Code, or to modify or qualify it, argues effectively that it is not the legislative policy to do so. We are convinced that if this section is to be made to conform to the contention of appellants it must be accomplished by the Legislature.

We are in accord with the opinion of the Attorney General and the judgment of the Common Pleas Court. It will be affirmed.

Judgment affirmed.

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

(Decided April 19, 1954.)

On Application for rehearing.

Per Curiam.

This cause was submitted on motion to reconsider our original opinion and decision herein.

It is urged that we did not discuss and, therefore, failed to give due consideration to the provisions of Section 2364, General Code (Section 153.52, Revised Code), and particularly the exception at the end of the section. It is urged that although Section 2364, General Code, as amended, and Sections 2314-1 and 2314-2, General Code, were enacted at the same time, Section 2364 is in a dominant position and gives awarding-authorities discretion to consider and award on combination bids. The language of Section 2364, General Code, is substantially the same, but for the exception, as that employed in Section 794 of an act of April 13, 1888, 85 Ohio Laws, 218. The section (2364) inferentially authorizing awards to bidders for the job as a whole or for more than one kind of work or materials then carries this language:

“The provisions of this and the preceding two sections shall not apply to the erection of buildings and other structures of a less cost than ten thousand dollars, except as provided in Sections 2314-1 and 2314-2 of tlie General Code.”

It is urged with much conviction and force.that this exception nullifies all the provisions of Sections 2314-1 and 2314-2, General Code, as they affect contracts in the amount of $10,000 or more.

We recognize, as did the Attorney General in his opinion of December 1933, that the language under consideration may be given such construction.

It is our opinion, however, that the exception at the end of Section 2364, General Code, was unnecessary to assure the application of Sections 2314-1 and 2314-2, General Code, to bids, specifications and contracts only coming within their terms, at a cost of not less than $1,000 or more than $10,000. These new sections and Section 2364, an amended section, were enacted at the same time and must be presumed to serve the purposes therein indicated. The subject matter of the sections covers different types or classes of construction work. Section 2364 is general, as to awarding authorities affected, the construction work to be performed, and the material to be furnished. Sections 2314-1 and 2314-2 are limited to construction to be let by the state and to a restricted class of artisans and types of work. All three can be given application; Section 2364 and the preceding sections, 2362 and 2363, as general legislation and Sections 2314-1 and 2314-2, as special legislation.

The exception was, in probability, carried into Section 2364 to avoid any question as to the application of Section 2314-2 to contracts between $1,000 and $10,000. The exception does not purport to restrict the provisions of Section 2314-2 to contracts of $10,000 or less. It is not a limitation on Section 2314-2, but a recognition that it applies to contracts of less than $10,000, although Section 2364 is so limiting. It is highly probable that if the Legislature had intended to restrict Section 2314-2, as contended by appellant, it would have carried such limitation into the language of that section and not reached it by indirection in Section 2364.

The application for reconsideration will be denied.

Application denied.

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


text:
    Standard “Tote,” Inc., Appellant, v. Ohio State Racing Commission, Appellee. Midwest Totalizator Co., Appellant, v. Ohio State Racing Commission, Appellee. Ohio Sports Enterprises, Inc., Appellant, v. Ohio State Racing Commission, Appellee. River Downs of Ohio, Inc., Appellant, v. Ohio State Racing Commission, Appellee. Ascot Park Jockey Club, Appellant, v. Ohio State Racing Commission, Appellee.
    (Nos. 5144, 5145, 5146, 5147 and 5148
    Decided September 7, 1954.)

      Mr. E. G. Fickell, for appellants Standard “Tote,” Inc., and Midwest Totalizator Company.

      Messrs. Krumm <& Schwenker and Mr. Greg Holbrook, for appellant Ohio Sports Enterprises, Inc.

      Messrs. Krumm & Schwenker and Mr. Arthur L. Rowe, for appellant River Downs of Ohio, Inc.

      Mr. Rise A. Hershey, for appellant Ascot Park Jockey Club.

      Mr. C. William O’Neill, attorney general, and Mr. Hugh A. Sherer, for appellee.
   Miller, J.

Causes Nos. 5144, 5145, 5146, 5147 and 5148 are here submitted on motion of the Ohio State Racing Commission, appellee herein, seeking an order consolidating them for the reason that the appeals in such cases present an identity of issues in this court. The appellants concur in this conclusion and do not object to the consolidation. The motion will, therefore, be sustained.

The appellee moves further that the appeals be dismissed for the reason that this court is without jurisdiction to hear and determine the same. The record reveals that on appeal to the Common Pleas Court certain rules adopted or amended by the Ohio State Racing Commission were adjudged to have been adopted according to law and that they were reasonable and lawful. The appeal is from that judgment. Two grounds are urged in support of the motion:

(1) That the Administrative Procedure Act (Section 119.11, Revised Code) does not authorize an appeal to the Court of Appeals from an adverse decision rendered by the Common Pleas Court upon a duly perfected appeal questioning the validity of rules adopted by the appellee commission.

(2) Assuming that Section 119.11, Revised Code, does authorize such appeals, then, in such event, the statute is unconstitutional' because it extends this court’s appellate jurisdiction to nonjudicial matters.

In considering the jurisdictional question it is to be noted that Section 119.11, Revised Code, provides as follows:

“Any person adversely affected by an order of an agency in adopting, amending, or rescinding a rule may appeal to the Court of Common Pleas of Franklin County on the ground that said agency failed to comply with the law in adopting, amending, rescinding, publishing, or distributing said rule, or that the rule as adopted or amended by the agency is unreasonable or unlawful, or that the rescission of the rule was unreasonable or unlawful.”

It is urged that this language does not provide, either expressly or impliedly, for an appeal to this court from proceedings to adopt and amend administrative rules, or from proceedings in the Common Pleas Court reviewing the orders of an agency in connection therewith; that viewed in its most favorable light this language merely suggests that the legislative draftsmen were under the impression that an appeal to this court in such proceedings was elsewhere provided by statute; that such impression is erroneous, and that nowhere will there be found any statutory provision for an appeal to this court from an order of a Common Pleas Court affirming administrative rules as provided in Section 119.11; and that the right of appeal to this court being purely statutory (Section 6, Article IV of the Constitution of Ohio) it must follow that it has no jurisdiction to entertain the appeal. It was held in Corn v. Board of Liquor Control, 160 Ohio St., 9, 113 N. E. (2d), 360, that there is no inherent right of appeal but that such right must be conferred by the constitution or statute. The question presented, therefore, is whether the language in Section 119.11, Revised Code, is sufficiently explicit to authorize further appeals from an adverse decision of the Common Pleas Court. The applicable part of that section provides:

“Any order of the court in reviewing on appeal an order of any agency in adopting, amending, or rescinding a rule shall be final unless an appeal is taken therefrom * # *.”

The succeeding section of the Revised Code (Section 119.12) provides for appeals from adjudicative orders of boards and commissions to the courts, and it specifically provides that appeals therefrom “shall proceed as in the case of appeals in civil actions as provided in Sections 2505.01 to 2505.45, inclusive, of the Revised Code.” Since the procedure is not defined in the prior section, it would seem that the procedure in this section would have application to it also. Prior to the adoption of Section 119.12, Revised Code, which became effective on October 21, 1953, the statute authorizing appeals from adjudicative orders was Section 154-73, General Code (124 Ohio Laws, 202), which provided:

“The court may affirm the order of the agency complained of in the appeal * * * it may reverse, vacate or modify the order or make such other ruling as, in its opinion, is supported by reliable, probative and substantial evidence * * *. The decision of the court shall be final and conclusive unless reversed, vacated or modified on appeal.”

It was under this section that the case of Corn v. Board of Liquor Control, supra, was decided. The question presented was the right of the Board of Liquor Control to appeal from an adverse adjudicative order. The court held that it had no such right, but that the same was “limited to those persons whose interests are subject to adjudication by the board * * The court, therefore, recognized the right of appeal from such a ruling of the board. The Supreme Court’s view on this phase of the jurisdictional question is manifested by way of dicta in its decision rendered in Mantho v. Board, 162 Ohio St., 37, 120 N. E. (2d), 730, decided June 23, 1954, at page 41:

“Although it can be said that there is no authority for an appeal by the Board of Liquor Control, it can not be validly argued that there is no authority for an appeal from a judgment of the Common Pleas Court to the Court of Appeals, which judgment of the Common Pleas Court was rendered on appeal from a decision of the Board of Liquor Control.”

This court also exercised jurisdiction in such type of appeal in the case of Motors Ins. Corp. v. Dressel, 80 Ohio App., 505, 73 N. E. (2d), 817.

It is next urged that if Section 119.11, Revised Code, authorizes these appeals, then it is unconstitutional for the reason that it extends the appellate jurisdiction of this court to nonjudicial matters prohibited by Section 6, Article IV of the Constitution of Ohio. This section provides that the Court of Appeals shall have “such jurisdiction as may be provided by law to review * * * judgments or final orders of boards, commissions * * * and of courts of record inferior to the Court of Appeals * * The appellee contends that the adoption of rules by the racing commission is an administrative function and not judicial. We concur in this conclusion, but the appellants herein are not seeking the court’s assistance in the making or amending of rules but are contesting the same as having been adopted contrary to law and that the same are arbitrary and unreasonable. The appellee cites the case of Zangerle v. Evatt, 139 Ohio St., 563, 41 N. E. (2d), 369, which holds that courts will not aid in making or revising rules of administrative officers. But as stated previously this is not the relief being sought and not what the court did. It passed upon the legality and reasonableness of the rules adopted by the racing commission, which acts have always been recognized as judicial functions. In the Zangerle case, supra, the court limited a reviewing court’s jurisdiction to such finding. The fifth paragraph of the syllabus provides:

“Courts will not aid in making or revising rules of administrative officers, boards or commissions, being confined to deciding whether such rules are reasonable and lawful as applied to the facts of a particular justiciable case.”

That the functions authorized by Section 119.11, Revised Code, on review are judicial rather than administrative is further shown by Chief Justice Hughes’ opinion in Federal Radio Commission v. Nelson Brothers Bond & Mortgage Co., 289 U. S., 266, 275, 77 L. Ed., 1166, 53 S. Ct., 627, 89 A. L. R., 406:

“While the Congress can confer upon the courts of the District of Columbia such administrative authority, this court cannot be invested with jurisdiction of that character whether for the purpose of review or otherwise. It cannot give decisions which are merely advisory, nor can it exercise functions which are essentially legislative or administrative * * *. That review is now expressly limited to ‘questions of law’ and it is provided ‘that findings of fact by the commission, if supported by substantial evidence, shall be conclusive unless it shall clearly appear that the findings of the commission are arbitrary or capricious.’ This limitation is in sharp contrast with the previous grant of authority. No longer is the court entitled to revise the commission’s decision and to enter such judgment as the court may think just. The limitation manifestly demands judicial, as distinguished from administrative, review. Questions of law form the appropriate subject of judicial determinations.”

See, also, Public Service Commission v. Havemeyer, 296 U. S., 506, 80 L. Ed., 357, 56 S. Ct., 360; Ma-King Products Co. v. Blair, 271 U. S., 479, 70 L. Ed., 1046, 46 S. Ct., 544.

The motion to dismiss is overruled.

Motion overruled.

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


author: Montgomery, P. J.

text:
    Mastroianni, Appellant, v. Board of Liquor Control of the State of Ohio et al., Appellees.
    (No. 5141
    Decided November 4, 1954.)

      Mr. Charles T. Raps and Mr. Paul F. Ward, for appellant.

      Mr. C. William O’Neill, attorney general, and Mr. Riehner Johnson, for appellees.
   Montgomery, P. J.

The appellant, operating under a D-5 permit issued by the state of Ohio, Board of Liquor Control, in the village of Wavnesburg, Stark County, Ohio, on October 2, 1952, filed ari application with the department for permission to transfer the permit to a location in Stark County on route 30 east of the city of Canton, and in an unincorporated territory in that county. In connection with his application he submitted plans and specifications to the department of the premises to which he sought to have the permit transferred.

On November 6,1952, he was advised by the Chief of the Permit Division of the Board of Liquor Control that there seemed to be no reason why this transfer should not be allowed, but was directed that the building be constructed in accordance with the plans submitted and that he comply with the sanitary regulations of the department.

Thereupon, the appellant proceeded with the construction of his building, which it seems to be conceded is in every respect in conformity with the original plans submitted and with the requirements of the department as to sanitation. In such construction he expended or incurred obligations in the amount of $54,000, and the views of the interior and exterior of the building submitted as exhibits show a building very attractive and desirable for the intended purpose.

However, on December 4, 1953, after the appellant had refiled his application, the department refused to transfer the permit to the new location and rejected the application.

On appeal to the Court of Common Pleas the ruling of the board was sustained. The trial court in its opinion stated:

“The case before the court is indeed a hard case, and great hardship will likely fall upon the appellant if he is unable to obtain transfer of his permit.”

In that statement the members of this court concur. But the trial court held that it did not have authority to interfere with the ruling of the board. With that conclusion the members of this court do not agree.

The basis of the rejection of the application for transfer was that on the so-called “freezing” date of permits in the state of Ohio, April 11, 1949, the number of outstanding Class D-5 permits for the unincorporated area of Stark County was 22, and that if this application for transfer were allowed it would make 23 outstanding Class D-5 permits in this unincorporated area, which would be one more than the quota fixed. Obviously, it would not, and it is not claimed that it would, increase the quota for Stark County, or that any unfair result would follow affecting any portion of the territory in Stark County.

Here is the situation: Where a permit holder, relying upon information from the department, expended or obligated himself to expend $54,000, and complied with all the requirements of the department, should he then be refused the transfer which he had been led to believe he could have?

We base our conclusion in this particular case upon the first and last paragraphs of Section 119.11, Revised Code, which paragraphs are:

“Any person adversely affected by an order of an agency in adopting, amending, or rescinding a rule may appeal to the Court of Common Pleas of Franklin County on the ground that said agency failed to comply with the law in adopting, amending, rescinding, publishing, or distributing said rule, or that the rule as adopted or amended by the agency is unreasonable or unlawful, or that the rescission of the rule was unreasonable or unlawful.”
“Any order of the court in reviewing on appeal an order of any agency in adopting, amending, or rescinding a rule shall be final unless an appeal is taken therefrom, but no person affected thereby shall be precluded from attacking at any time the reasonableness or legality of any rule in its application to a particular set of facts or circumstances.”

Let it be understood that we are not passing upon Ihe applicability in this case of the doctrine of estoppel. We are not passing upon the proper definition of a “subdivision” or “political subdivision.” We are not passing upon which construction of regulation 64 of ihe department, as to which it has made different interpretations, is correct. We see no need for passing upon these questions because this exact situation is not likely to happen again, in view of the record in this case. We are simply applying Section 119.11, Revised Code, to the facts in the instant case. It would be rather difficult to find any other instance where this statute would be more applicable.

The judgment of the Court of Common Pleas is reversed, and the issuance of transfer of permit is ordered.

Judgment accordingly.

Nichols and Griffith, JJ., concur.

(Montgomery, J., of the Fifth Appellate District, and Nichols and Griffith, JJ., of the Seventh Appellate District, sitting by designation in the Second Appellate District.)


text:
    Hyland, Appellee, v. Pfalzgraf et al., Appellants.

      (No. 7724
    Decided May 18, 1953.)

      Messrs. Nichols, Wood, Marx & Ginter, for appellee.

      Mr. Harold G. Brown, for appellants.
   Per Curiam.

This is an action to quiet title to a sewer easement over the defendants’ parcel of real estate appurtenant to the parcel owned by the plaintiff. The trial in the Common Pleas Court resulted in a decree finding that plaintiff had a sewer easement over the defendants’ land and a decree quieting the plaintiff’s title thereto against the defendants’ adverse claim.

This appeal is from, that judgment.

The first question to be considered is the appellee’s contention that the notice of appeal is fatally defective and confers no jurisdiction upon this court.

The notice of appeal recites that it is upon law and fact and that, it is taken from the “verdict” of the Common Pleas Court. Of course, the reference to a “verdict” was clearly an inadvertence, as no jury was empaneled. The action is clearly a chancery case in which there is no right to a jury.

As the judgment and the order overruling the motion for a new trial are the only final orders in the record, both of which are appealable and raise the same issue, we are of the opinion that under Section 12223-5, General Code, this court may and should permit an amendment to designate the order appealed from.

As no appeal bond was filed, the appeal was reduced to one on questions of law only and appellants were given 30 days to file a bill of exceptions. That has been done. This bill, however, contains only the conclusions or findings of the court and not the evidence upon which those findings were based. The findings as set forth in the bill are as follows:

“Plaintiff purchased two adjoining lots from a common owner by separate deeds upon the same day. The deed for parcel 1 was delivered first and reserved an easement for a sewer line over the rear ten feet thereof, for the benefit of parcel No. 2. Later that same day, this deed for parcel No. 2 was delivered. While the deed for parcel No. 2 contains no specific grant of the sewer easement, nor any reference to it, the court finds that the ‘privileges and appurtenances clause’ in this deed was sufficient to pass title to the easement in question.
“Plaintiff has continued paying the taxes upon parcel No. 2 and still owns it, but failed to pay the taxes on parcel No. 1. In 1947 a foreclosure action was instituted by the county treasurer because of the delinquent taxes owed upon parcel No. 1, but the property was not sold for want of bidders and was thereupon duly forfeited to the state of Ohio. In accordance with- applicable statutory provisions it was eventually sold to the defendants by the Hamilton County Auditor at a forfeited land sale. Throughout the foreclosure and foreclosure proceedings, which were in all respects, regular, and in the auditor’s deed to the defendant, the easement above referred to is reserved for the benefit of parcel No. 2.
“The sewer for which the easement was reserved has not yet been constructed, but plaintiff now proposes to construct it and brought this action to quiet title to the easement.”

It will be observed that the court found that the defendants’ parcel was sold to them with the express reservation of this sewer easement for the benefit of the plaintiff’s parcel. Under such circumstances they are in no position to question the existence of the easement.

For this reason the judgment is affirmed.

Judgment affirmed.

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


text:
    McCane, Jr., Appellant, v. Alvis, Warden, Appellee.
    (No. 5060
    Decided September 24, 1954.)

      Mr. Alexander H. Martin, for appellant.

      Mr. C-. William O’Neill, attorney general, Mr. Hugh A. Sherer and Mr. Thomas R. Lloyd, for appellee.
   Miller, J.

This is an appeal on questions of law from a judgment of the Common Pleas Court denying the petitioner, appellant herein, a writ of habeas corpus. The record discloses that the trial court made a separate finding of facts and conclusions of law, and it is urged that the court erred in its legal conclusions.

It appears that the petitioner was indicted on January 21, 1950, on the charge of armed robbery, five counts; that counsel was duly appointed for him before trial; and that upon advice of counsel a plea of guilty was entered and sentence was then pronounced. The only ground of substance urged by counsel for appellant is that at the time of trial the appellant was mentally unable to understand the offense with which he was charged. In support of this charge it appears that on January 26, 1950, he was adjudged by a duly authorized judicatory of the United States Army to be “a basically feeble-minded individual but showing suggestive evidence of mental condition superimposed on his mental deficiency. This condition has existed for a number of months since * * * July, 1945.”

The adjudication recites further that in March 1946, he was charged in Cuyahoga County with an offense and that upon the suggestion of insanity being made he was committed to the Lima State Hospital. The hospital authorities reported to the court that he was, “innately feeble-minded and that his present mental condition is superimposed upon basic intellectual deficiency.”

On January 29, 1949, he was returned to the Common Pleas Court of Cuyahoga County for further proceedings in the criminal action and upon hearing being had he was found guilty, the imposition of sentence was suspended and he was placed on probation for a period of two years. It was while he was on probation that the offense was committed for which he is now being punished.

The record discloses further that on June 13, 1951, a guardian was duly appointed for him by the Probate Court of Cuyahoga County. When the case came on for trial no suggestion of insanity was made to the Court of Common Pleas in accordance with Section 13441-1, General Code, but instead a plea of guilty was offered and sentence pronounced accordingly. The right the plaintiff had to a sanity hearing was waived by his plea of guilty. The fact that he was under guardianship at the time does not exempt him from prosecution for his criminal acts. This as well as the findings made by the army authorities are only evidence which may be considered by the jury in passing upon his sanity. Wheeler v. State, 34 Ohio St., 394, 32 Am. Rep., 372.

It is our conclusion that the trial court properly acquired jurisdiction over the appellant; that his mental condition was not at the time of trial such as to prevent him from having a fair trial; and that, therefore, none of his constitutional rights and privileges was invaded.

Since we find no error in the record, the judgment will be affirmed.

Judgment affirmed.

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


text:
    Huls, Appellee, v. Huls et al., Appellants.
    (No. 1027
    Decided July 28, 1954.)

      Mr. William D. Schaeffer and Mr. Carl Teetors, for appellee.

      Messrs. Condo, Walsh & Stitsinger, for appellants.
   Hildebrant, J.

This appeal is presented de novo to this court upon the pleadings and the record from the trial court, together with defendants’ depositions and exhibits.

Prior to October 2, 1941, B. F. Huls, now deceased, his wife, Ada H. Huls, defendant, appellant herein, their son, Wills H. Huls (a. k. a. Jack Huls), plaintiff, appellee herein, and their daughter, Mary A. Huls, defendant, appellant herein, lived as a family unit on a rented farm in Butler County, and were engaged in genera] farming with the usual livestock, tools and equipment to be found thereon. From about 1931, the family bank account was in the name of B. F. Huls until about 1941 or 1942 when the name of plaintiff was added to it, requiring both signatures on all checks. Later, about November 1944, and from the record it would seem to have been incident to the advancing age of B. F. Huls, who died in 1947, the joint account was closed out and the account reopened in the name of plaintiff alone with the balance from the joint account. Prior to November 1944, B. F. Huls and W. H. Huls had made chattel loans every year jointly. Thereafter such loans were made in the name of plaintiff alone.

Defendant Mary A. Huls became employed and a wage earner in the city, but contributed to the family support and returned to her farm home regularly at the week end and remained a part of the family unit.

On or about October 2, 1941, the family purchased the Oxford farm, to which they subsequently moved and operated as before, with plaintiff continuing on in the same manner following the death of B. P. Huls.

In unquestioned family agreement at the time, title to the farm was taken in the names of Wills H. Huls and Mary A. Huls, who at the time assumed a mortgage of $6,000 thereon. The balance of the purchase price of $12,500 came from the joint bank account of B. P. and W. H. Huls, plus a $2,000 chattel mortgage loan made by B. F. and W. H. Huls, plus a $500 cash contribution by the defendant, Mary A. Huls. Since that time plaintiff has worked the farm, retiring the mortgage, and making some improvements from proceeds of the farm alone, no accounting between plaintiff and defendant being had at any time. Defendant Mary A. Huls has assisted the farming operation by paying for fertilizer, making mortgage payments and loans to B. P. Huls, and other smaller contributions from time to time.

Plaintiff now claims to be entitled to sole ownership of the farm, subject only to such equities as the contributions of defendant Mary A. Huls might entitle her.

The deed, wherein plaintiff and defendant Mary A. Huls are the grantees, is silent as to the respective shares of the parties, and on its face and in law conveys to each of them an undivided one-half interest in the land as tenants in common. The deed being silent as to the respective shares of the grantees, the law presumes that the shares are equal.

We are in accord with the law cited from 156 A. L. R., 516, wherein it is stated:

“The rule is well established that where two or more persons take as tenants in common under an instrument which is silent in regard to their respective shares, there is a presumption that their shares are equal.”

While it is generally held that the presumption as to equality of the shares is a rebuttable one, in the instant case the intention of the parties at the time of delivery of the deed in accord with the presumption is clear from the record. B. F. Huls must be credited with $3,000 of the cash payment, and the defendant contributed $500 and joined in the assumption of a $6,000 mortgage, so that the record not only fails to sustain plaintiff’s claim of sole ownership, but negatives it.

Plaintiff testified as follows:

“Q. Then you made no claim at the time the farm was purchased or shortly thereafter that you owned more than half of the farm? A. No sir.
“Q. And your claim for more than half of the farm then came about because of the fact that you lived on the farm and you operated it, you worked on it, you made the repairs and you paid off the mortgage and in that way contributed more to the present condition of and the value of the farm than your sister Mary? A. I think so.”

The case of Anderson v. Anderson, 137 Kan., 833, 22 P. (2d), 471, cited in appellants’ brief, in the light of plaintiff’s testimony, quoted supra, would seem to be very much in point. In that case, two brothers were the grantees for a consideration of $13,000, of which James paid $4,300 and Richard $2,200, both joining in a mortgage for the balance, which was subsequently paid, $4,500 by James in cash, and $2,000 from another mortgage, in which both joined. At page 835, the court stated:

“The court cannot agree that after land has been conveyed to A and B and their heirs, quantity of interest shall be determined by subsequent contributions made through a period of years, first by one and then by the other, on presumptions bobbing up with each cash payment, causing agile interests to hop from one co-owner to the other.”

In the headnotes, as reported in 22 P. (2d), it is stated:

“General warranty deed conveying land to two persons, notwithstanding grantees contributed unequally to cash payment, held to convey equal interests.
“Equal interests of two grantees under general warranty deed held not changed by payment of deferred installments with money contributed by one grantee and money borrowed on joint note and mortgage.”

Upon the record, plaintiff has failed to prove any intention of the parties at the time of delivery of the deed contrary to the expressed and presumed equality of interest, and we find that plaintiff, Wills H. Huls, and defendant Mary A. Huls hold title to the farm as tenants in common, share and share alike, each owning an undivided one-half interest therein, and that the real estate is susceptible to the rights of partition.

Upon this record, the court will affirm defendants’ right to an accounting from the date of the filing of the petition herein, and the cause will be remanded to the Court of Common Pleas for execution.

Judgment accordingly.

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