author: Per Curiam.

text:
    Heriott, Appellant, v. Marine et al., Appellees.
    (No. 249
    Decided August 12, 1953.)

      Mr. William L. Coleman, for appellant.

      Mr. Clifton L. Caryle, for appellees.
   Per Curiam.

This cause was heard by and submitted to the court de novo, the parties stipulating that the transcript of the evidence on the trial of this case in the Common Pleas Court should be admitted in evidence in this court, and that the cause should be heard and decided on such evidence plus such additional evidence as the parties should offer in this court.

The action is one to rescind an agreement in writing entered into between the plaintiff Irene Heriott and the defendants Bessie Marine and B. H. Marine, whereby the plaintiff agreed to purchase from the defendants and the defendants agreed to sell to the plaintiff certain real estate situated in Milford Center, Union county, Ohio, together with the building thereon, the restaurant and beer business being then conducted on said premises, and the fixtures and equipment used in connection with such business, for the price of $19,000, $8,000 of which amount was paid in cash by plaintiff and the receipt thereof acknowledged by defendants and $2,000 of which amount was paid by a note, which the agreement provided should be paid by plaintiff to defendants upon the transfer to plaintiff of D-l, D-2 and C-2 liquor permits issued by the State Liquor Department, but which note was delivered without waiting for such transfer, and $9,000 of which was to be paid on or before a year from the date of said agreement as evidenced by a promissory note in said amount given to defendants by plaintiff and her husband.

Dependent upon rescission being decreed, the plaintiff seeks recovery of the down payment of $8,000 cash made upon the purchase price and also to be restored to the possession of the notes executed by plaintiff to defendants.

As a ground for such rescission, the plaintiff alleged in her petition that the defendants had fraudulently withheld from her information that the son of the defendants, in whose name the above permits were issued, had committed a felony, that such permits were subject to revocation for this reason, and that the defendants would be unable to cause them to be transferred to the plaintiff.

From the transcript of the evidence it appears that the contract of sale was entered into under date of March 24, 1951, and contained the provisions set forth in the petition, and a further provision “that in the event parties of the second part [defendants] are unable to make a transfer of the permits above referred to then this transaction shall become null and void and the sum of $8,000 of which has been paid by party of the first part [plaintiff] shall be returned by parties of the second part to said party of the first part. ’ ’

It appears further from the transcript of the evidence that on Monday, March 26, 1951, the plaintiff was called by defendants’ attorney to his office where another agreement, apparently designed to cover the same general subject matter, was executed by plaintiff and defendants.

In this agreement the real estate, furniture, fixtures and equipment referred to in the agreement of March 24 are mentioned and the aggregate amount of the purchase price is mentioned, but the manner of payment is not mentioned and the receipt of the $8,000 down payment is not mentioned, and the permits designated in the agreement of March 24 are not mentioned, nor is there any mention of the restaurant and beer business, and the provision as to the repayment of the $8,000 down payment of the purchase price is entirely omitted.

There is no evidence tending to prove the purpose or intent of the parties in entering into the agreement of March 26, and there is no evidence tending to prove what, if any, consideration there was for said agreement.

The agreement of March 24 is not mentioned in the agreement of March 26 and said latter agreement does not in any way purport to modify, abrogate, rescind or cancel the same or to be a substitute therefor. If the agreement of March 26 is considered a modification of the agreement of March 24 whereby the provisions of the agreement of March 24 not appearing in the agreement of March 26 remain in effect, the plaintiff would have no right of action for rescission for the reason that the remedy prescribed therein for the recovery of the down payment in the event of defendants being unable to transfer permits is the exclusive remedy to which plaintiff is entitled.

On the other hand, if the agreement of March 26 is considered as a novation or substitution for the agreement of March 24, plaintiff has no remedy by way of rescission for the reason that in the agreement of March 26 defendants do not agree to have the permits transferred to plaintiff and do not agree to any return of the down payment of the purchase price in the event of defendants’ failure to do so.

It, therefore, appears that no matter how the agreements are considered the plaintiff is not entitled to rescission of her contract upon the ground alleged in the petition, and the petition for rescission will have to be dismissed at her costs.

At the time the contract of March 26 was entered into the down payment of $8,000 prescribed in the agreement of March 24 had been made, so that the agreement of March 24 was not then an executory contract but a partially performed contract.

It is the settled law of this state that where a written contract not executory in character is either totally abandoned and annulled or simply altered or modified in some of its terms, it is done, and can only be done, by a distinct and substantive contract between the parties, founded on some new and distinct legal consideration. See syllabus, Thurston & Hayes v. Ludwig, 6 Ohio St., 1, 67 Am. Dec., 328.

As stated above, it does not appear that there wTas any new or distinct legal consideration for the agreement of March 26, and if there was no new or distinct legal consideration, the agreement of March 26 is void and of no effect, and the plaintiff, upon pleading and proving such fact, would be entitled to maintain an action to recover such down payment and to have such notes restored to her in conformity with the provisions of the agreement of March 24, prescribing that upon the failure of defendants to have permits transferred to her the said sum of $8,000 shall be returned to plaintiff.

The dismissal of plaintiff’s petition at her costs shall be without prejudice to her maintaining an action of the character last above mentioned.

Judgment accordingly.

Younger, P. J., Guernsey and Middleton, JJ.5 concur.


source: Caselaw Access Project

author: Wiseman, P. J.

license: Public Domain

text:
    Wells, Appellee, v. Fulton, Jr., Appellant.
    (No. 2262
    Decided November 13, 1953.)

      Mr. T. L. Barger, for appellee.

      Mr. Joseph J. Freemas, for appellant.
   Wiseman, P. J.

TMs is an appeal on questions of law from the judgment of the Common Pleas Court of ■ Montgomery County, Ohio, Division of Domestic Relations, in a bastardy proceeding in which the jury rendered a verdict of guilty.

The defendant, appellant herein, assigns as error that the verdict is against the manifest weight of the evidence; that plaintiff failed to prove defendant’s guilt by a preponderance of the evidence; that the court erred in overruling the defendant’s motion for a new trial; and that the action is improperly brought in the name of the state of Ohio.

On the principal factual issue, i. e., whether the complainant and defendant had sexual relations about the time the child was conceived, there was a direct conflict in the evidence. The jury had the right to believe the complainant and disbelieve the defendant. In returning a verdict of guilty the jury apparently believed the complainant and accepted the evidence adduced by complainant which tended to corroborate her testimony. The verdict was not against the manifest weight o-f the evidence, and we cannot say that it was not sustained by the preponderance of the evidence. The motion for new trial was properly overruled.

The defendant claims that the proceeding was improperly brought, contending that the plaintiff was designated as State of Ohio, ex rel. Shirley M. Wells. The record does not support this contention. Neither the affidavit nor the warrant for arrest states that the proceeding is brought in the name of the state. The form of the verdict which was submitted to the jury was captioned “Shirley M. Wells, Plaintiff, v. Johnny Fulton, Jr., Defendant.” The words, “The State of Ohio,” printed on the form of verdict were stricken out. No papers were submitted to the jury which indicated that the state of Ohio was a party. The facts in this ease are dissimilar to the facts in the case of State, ex rel. Love, v. Jones, 65 Ohio Law Abs., 595, 111 N. E. (2d), 607, decided by Judge Bell of the Common Pleas Court of Hamilton County on March 17, 1953. In that case it appears that the papers were captioned “State of Ohio ex rel. v. Defendant.” Judge Bell held that to so caption the papers, and for the jury to see and examine the papers during its deliberations, were erroneous and prejudicial. Judge Bell, in analyzing the statutes, concluded that while prior to 1923 a proceeding in bastardy was for the benefit of the state of Ohio, and that such proceeding was properly brought in the name of the state, since 1923 the state of Ohio is not an interested party, and the proceeding must be instituted and maintained only by the complainant. In that case it appears that the proceeding was instituted in the name of the state. The court held that such a proceeding cannot now be instituted or maintained in the name of the state, and that prejudicial error intervened.

In the case at bar the only papers designated “State of Ohio ex rel. Shirley M. Wells” are those papers drawn by counsel and the clerk, which were never presented to the jury and therefore the jury' could not have been prejudiced in arriving at its verdict. The proceeding was properly instituted, and the fact that counsel, in filing motions and entries, improperly captioned the case, would not in any way vitiate the verdict and judgment. The words “State of Ohio, ex rel.” in the caption of the judgment entry should be and are hereby stricken. With this modification the judgment is affirmed.

Judgment affirmed.

Miller and Hornbeck, JJ., concur.


author: Grieeith, P. J.

text:
    Taylor, Appellee, v. Holmes, Appellant.
    (No. 287
    Decided March 29, 1954.)

      Mr. James L. Werner, for appellee.

      Messrs. Bostwick & Bostwick, for appellant.
   Grieeith, P. J.

This is an appeal on questions of law from a judgment of the Court of Common Pleas, imposing a fine for the violation of a mandatory order of the court. The court ordered the defendant, appellant herein, to cover all garbage upon the close of each day’s operations with a compacted layer of earth to a minimum depth of six inches.

The defendant concedes that he violated the court’s order, but contends that his failure to cover at the sanitary fill on the evening of February 11, 1953, was due to the fact that one of the drivers engaged by him did not get the word that a truck load of rubbish was delivered that day, and that it was unloaded without his knowledge. This is his explanation in the record:

“I had an agreement with the company that was hauling in the rubbish that whenever they had a truckload of rubbish they were to stop at my office on route 44 and pick up one of the men to go down with them so the rubbish would be placed in the proper place for covering. On this occasion, one of the drivers of this company apparently did not get the word, and he drove in there without taking my man with him and we had no knowledge there was any rubbish in the fill on the 11th. Around noon on the 12th Mr. Ernst come in and informed me one of his drivers had been in the night before and had another load to go in there and we immediately set out to go down to the fill area and prepare for the next load of rubbish to come in. Immediately after that came in, we covered the rubbish. I say ‘we’ because I had an operator that operated the tractor that covered it. I did not cover it myself but I witnessed it being done.”

Defendant contends that he had no intent to violate the court’s order, and that no one was injured by reason of his failure to cover on that one night.

Section 12137, General Code, reads, in part, as follows :

“A person guilty of any of the following acts may be punished as for a contempt:

“1. Disobedience of * * # a judgment, * * * of a court * *

In the case of Univis Lens Co. v. United Electrical Radio & Machine Workers of America, CIO (1949), 86 Ohio App., 241, 89 N. E. (2d), 658, the court said, at page 242:

“Whether intent is a necessary element, it seems, is dependent upon the nature of the act complained of. If it was committed in the presence of the court, or so near the court or judge as to obstruct the administration of justice, the proceeding would be a summary one under Section 12136, General Code. Under this section we are of the opinion that the intent is not a necessary element. On the other hand, if the act comes under any of the classifications set forth in Section 12137, General Code, it seems that a different rule applies. ’ ’

The case before us is not that of a direct contempt, and is distinguished from those cases involving direct contempts by reason of the fact that this is a violation of a court order outside the presence of the court.

Can it be said that this defendant’s conduct, under the facts presented, in any way tended to obstruct, embarrass or prevent the due administration of justice? He did not refuse to obey the court’s order. He had no knowledge that the order had been violated, or motive, or intent. He gave a plausible excuse for the violation.

“Under Section 12137, General Code, a proceeding in contempt must be based upon some order, judgment or command of a court or officer, or it must be dismissed. It is the wilful violation of an order of court which constitutes contempt, and there must be an intent, with knowledge of the order or at least of its nature, to transgress it, before a court will inflict punishment. 9 Ohio Jurisprudence, 79, Section 43.” Beach, Jr., v. Beach (1946), 79 Ohio App., 397, 404, 74 N. E. (2d), 130.

Plaintiff has cited the case of Union Reduction Co. v. Story, 8 Ohio App., 381, wherein the third paragraph of the’syllabus states:

“The intention to violate an injunction is not to be considered, if the injunction is actually violated.”

The facts in that case clearly distinguish it from the one before us. In that case, for three years the defendant had continued to violate the court’s order, and then as a defense set up lack of intention.

In the Univis Lens Co. case, supra, the court said:

‘ ‘ Whether intent is a necessary element, it seems, is dependent upon the nature of the act complained of. ’ ’

Applying that expression of the law to the instant case, what was the act complained of?' It was defendant’s failure to cover the garbage on the one single night when he was innocent of any wrongdoing, and it is quite pertinent to note that on the next day, when knowledge reached him of the fact, he immediately proceeded to the grounds and covered the same. This was done .before any complaint was made, and this conduct on his part emphatically shows a lack of intent on his part to violate the court order. It discloses a positive intent on his part to comply with the order. There were no repeated violations of the court’s order in the instant case as there were in the case of Union Reduction Co. v. Story, supra.

We hold that to constitute contempt under the facts in this case, the act must be done wilfully or intentionally, and, there being no proof of such, the judgment of the Common Pleas Court is in error and is reversed.

Judgment reversed.

Phillips and Niohols, JJ., concur.


author: Kovachy, J.

text:
    Pfister, Appellant, v. City of Cleveland, Cleveland Transit System, Appellee.
    (No. 22638
    Decided February 9, 1953.)

      Messrs. Sindell <& Sindell, for appellants.

      Mr. R. F. Mooney and Mr. Richard Green, for appellees.
   Kovachy, J.

This is an appeal on questions of law from a verdict of a jury and a judgment in the Common Pleas Court of Cuyahoga County for $6,000 for personal injuries sustained by plaintiff while a passenger on a streetcar operated by defendant. Defendant admitted liability during the trial of the cause, and the case was submitted to the jury on the question of damages.

Plaintiff, appellant herein, complains that the amount allowed was grossly inadequate and makes these assignments of error:

“I. Trial court erred in failing to grant new trial for gross misconduct of defense counsel in final argument.

“II. Trial court erred in giving defendant’s special charge number one.

‘ ‘ III. Trial court erred in failing to exclude defendant’s exhibit H and testimony referring thereto.

“IV. The verdict was grossly inadequate and against the manifest weight of the evidence.”

We give consideration to these matters in the order presented.

I. Plaintiff claims that a new trial should have been granted in the court below on the ground of gross misconduct of defense counsel for saying in argument:

‘ ‘ This is George Pfister’s only time in court; this is the only time that he can be awarded damages and any verdict you award him will be tax free.” (Emphasis added.)

We find from the review of the record that no objection was made by the plaintiff at the time this statement was made by defense counsel, and that the matter was first raised during hearing on a motion for new trial to the trial court.

Under the Internal Revenue Code compensation for injuries received is tax exempt. The Internal Revenue Code, Title 26, subdivision (5), Section 22, U. S. Code, in providing for exemptions, says:

“Except in the case of amounts attributable to (and not in excess of) deductions allowed under section 23 (x) in any prior taxable year, amounts received through accident or health insurance or under workmen’s compensation acts, as compensation for personal injuries or sickness, plus the amount of any damages received whether by suit or agreement on account of such injuries or sickness, and amounts received as a pension, annuity, or similar allowance for personal injuries or sickness resulting from active service in the armed forces of any country.”

Technically, it would seem that compensation for loss of wages should be taxable, but where a verdict is general, there is no way' of determining the amount apportionable to wages, so that the entire verdict in practice becomes tax free. Perhaps for absolute exactitude and justice, the jury should be so told and instructed to make an allowance in its general verdict for such item, but the formula for determining such tax element is so complicated that an instruction with respect to it would be most confusing to the jury and at best most difficult of ascertainment. As a practical solution, therefor, the tax factor is ignored by the trial court in charging the jury. See 9 A. L. R. (2d), 318 to 321.

We are of the opinion that since the trial court says nothing and the record is silent about tax requirements in determining damages in a personal injury suit, reference to the verdict being tax free in final argument to/ the jury, even though true, is highly improper. Moreover, the payment of income tax holds no mystery to the average juror for it has universal application today. We, therefore, are of the belief that an objection by the plaintiff at the time of the occurrence with a request to the court to instruct the jury to disregard the improper remark could have cured any harm done and that failure to so do was equivalent to a waiver of the incident. We find a situation comparable to the one at bar in Walsh v. J. R. Thomas’ Sons, 91 Ohio St., 210, 110 N. E., 454. At page 217 Judge Jones had the following to say:

“The argument of counsel in'this connection was wholly improper and beyond the field of legitimate argument # * *. An examination of the record, howevei, will disclose that opposing counsel did not make any objection at that time. At the close of the entire argument a general objection was made. In view of the fact that the court’s attention was not directed at the time to the improper remarks, so that the court might take proper action thereon, this question is not available to plaintiff in error. ’ ’

In Wilson v. Wesler, Admx., 27 Ohio App., 386, 160 N. E., 863, paragraph one of the syllabus is as follows:

“Alleged misconduct of counsel in argument to jury cannot be complained of, where no objection was interposed at the time, nor was court requested to caution or instruct jury, and no exception was taken to any part of argument.”

See, also, Scott v. State, 107 Ohio St., 475, 141 N. E., 19; Bartlebaugh v. Pennsylvania Rd. Co. (Ohio App.), 51 Ohio Law Abs., 161, 78 N. E. (2d), 410 affirmed 150 Ohio St., 387, 82 N. E. (2d), 853; Zielinsky v. Cleveland Ry. Co., 6 Ohio Law Abs., 636; Herrman v. Levy, 9 Ohio App., 269.

II. Plaintiff claims error in the giving of defendant’s special charge No. 1, before argument, which included the statement:

“You must not be persuaded or influenced by bias, prejudice, or argument of counsel, but must apply your judgment to the facts and the evidence in the case.” (Emphasis added.)

Plaintiff urges that the language used instructed the jury that final argument has absolutely no meaning in the trial of a civil case. If such were the effect of this statement, we should not hestitate to declare it prejudicial error and cause for reversal of the judgment of the court below. However, this language was preceded by the following:

“The question of damages is a matter to which you should apply your sound judgment and discretion, tailing into consideration all the evidence, the facts and all the circumstances disclosed by the evidence. It is important that this defendant be not required to pay one cent more than full and just compensation, and it is equally important that the plaintiff be paid every cent which the evidence shows he should receive as fair and just compensation.”

It is our view that the statement objected to is correlated to the language immediately preceding it, and its intimate meaning gathered from a consideration of the entire statement made. The statement as a whole, thus interpreted, is to the effect that the jury, on the question of damage should apply its sound judgment and discretion and be guided by all the evidence, all the facts, and all the circumstances disclosed by the evidence, and not be persuaded or influenced by bias, prejudice or argument of counsel to require the defendant to pay one cent more or to give the plaintiff one cent more than fair and just compensation, applying their judgment to the facts and evidence in the case. It thus seems clear to us that the jury is in no way urged to disregard the arguments of counsel but is admonished not to permit themselves to be swayed away from and beyond the facts and evidence in the case bearing on the question of damages and thereby moved to give more or less than what is fair and just compensation. We accordingly find no prejudicial error in this assignment. See Morgan Engineering Co. v. Bowser, 32 Ohio Law Reporter, 322, at page 327.

III. Plaintiff claims that error was committed in permitting an incompetent document, “exhibit H,” to be introduced with testimony referring thereto.

We find the following on page 362 of the record:

“Mr. Lombardo: I would like to offer defendant’s exhibit H.

“Mr. Sindell: I object on the ground it is too general, Your Honor, please.

“The court: Let me ask, have you covered all the categories in here?”

Then follows 11 pages of testimony, much of it concerning the contents of this exhibit, and on page 374 the following appears:

‘ ‘ Mr. Lombardo: I will re-offer exhibit H again.

“The court: It will be received for what it is worth, under all the explanations that have been made about it.”

It would seem from the above that exhibit H was received in evidence without objection by plaintiff and for that reason no error can be claimed therefrom.

The record presents another reason why plaintiff cannot claim prejudicial error in the admission of this exhibit. He permitted the reading of the document to the jury without objection before its introduction as an exhibit.

In Sandusky Packing Co. v. Huffman, 129 Ohio St., 300, 195 N. E., 483, the syllabus reads as follows:

“A judgment will not be reversed for error in the admission of an incompetent document over objection and exception when the record discloses that parol evidence as to the incompetent content of the document was received without objection and exception.”

For the reasons stated, we hold no reversible error resulted from this matter.

IV. Plaintiff says that the verdict was grossly inadequate and manifestly against the weight of the evidence. The law on this proposition is well stated in the syllabus of a case decided by our Supreme Court, namely, Toledo Railways & Light Co. v. Mason, 81 Ohio St., 463, 91 N. E., 292, 28 L. R. A. (N. S.), 130:

“1. In an action to recover damages for personal injuries, a new trial may be granted on the ground of inadequacy of the damages found by the jury, when it appears upon the facts proved that the jury must have omitted to take into consideration some of the elements of damage properly involved in the plaintiff’s claim.

“2. On error in the Circuit Court to the overruling of a motion for a new trial on the ground of the inadequacy of the damages found by the jury in an action for personal injuries, the Circuit Court may reverse the judgment of the Court of Common Pleas and grant a new trial on the ground that the verdict is not sustained by sufficient evidence. ’ ’

It is based upon a consideration of subdivision 6 of Section 11576, General Code (formerly Section 5305):

“A former verdict, report, or decision, shall be vacated, and a new trial granted by the trial court on the application of a party aggrieved, for any of the following causes affecting materially his substantial rights.

“6. That the verdict, report or decision is not sustained by sufficient evidence, or is contrary to law. ’ ’

The plaintiff was injured on March 13, 1950, while riding in a streetcar trailer of a train of two cars operated by the defendant. He was thrown to the floor as a split rail derailed the trailer and was knocked unconscions for from two to five minutes. Taken to Glen-ville Hospital he complained of “severe headache and feeling of nausea, also blurred vision and photophobia.” The hospital reported: “Head contusion of right temporal region. No depression of skull. Final diagnosis: cerebral concussion. ’ ’

Plaintiff went home after two full days in the hospital and remained there until March 22, 1950, when he returned to his regular work as a maintenance electrician at Reliance Electric and Engineering Company until May 14, 1950, when he laid off work until July. From July 17, 1950, he worked continuously at his job with short interruptions including a stay at Cleveland Clinic Hospital for five days, until the day of the trial. His attending physician at Glenville Hospital gave his employer a letter stating he could return to work after one week. He sought the help of Cleveland Clinic on May 23, 24, and June 30,1951, complaining of “ (1) headaches; (2) impaired hearing and earache, right ear; (3) occasional roaring and sounds like he is in a barrel; (4) poor balance most of time; (5) vertigo at times; (6) blurred vision; (7) pain in the cervical spine; (8) stiff, painful neck and shoulders.”

The findings of the clinic were:

“1. Marked loss of hearing on right side, slight on left; (2) Nystagmus movement of the eyes; (3) The tendon reflexes in the lower extremeties, slightly more action than normal; (4) Swaying and unsteadiness when standing with eyes closed (Rhomberg test); (5) Psychiatric examination normal; (6) Mild Periarthritis of cervical spine (findings are meagre); (7) Electro-encephalogram, normal; (8) X-rays of skull, negative. ’ ’

The final diagnosis made in July 1950 was:

“Labyrinthine vertigo, post concussional syndrome, peri-arthritis of the cervical spine, perception deafness in the right side.”

Dr. Zucker, a neurologist, permitted plaintiff to return to work in July 1950.

The defendant presented no testimony to controvert these complaints and findings, other than a doctor who gave plaintiff a routine examination at his home a few days after the accident and before the symptoms above described had fully developed. It seems most probable to us that the jury found these complaints in the main to be valid and gave due consideration to them in arriving at its verdict.

The chief divergence between the plaintiff and the defendant, with respect to the injuries suffered by plaintiff, comes into play from the standpoint of the permanency of his injuries, particularly the perceptive deafness of the right ear and the vestibular vertigo due to injury to the eighth nerve. Plaintiff’s experts were of the opinion that these deficiences were of a permanent nature because they had not cleared up in the two-year period during which plaintiff was treated. They also said that the only alleviation so far as the vestibular vertigo was concerned was an operation sectioning the vestibular portion of the eighth nerve. Defendant, in opposition to the claim of permanency, presented an otolarynologist who examined the plaintiff on April 5, 1951, and testified that according to his tests plaintiff at that time “had a moderate hearing loss of under or to 25% in each ear,” and that his tests “of the labyrinthine or balance part of the ear” disclosed normal reactions as to each ear and that all tests made by him were objective findings.

The $6,000 allowed by the jury in this case, in our opinion, is adequate compensation to the plaintiff for his injuries, loss of earnings (about three months) and $700 medicial expenses, provided the deafness of his right ear (his doctor claimed total) and the vestibular vertigo are not permanent in nature. The jury obviously determined such injuries not to be permanent.

After a careful study of all the testimony and the exhibits in the record, on the question of injuries suffered by the plaintiff directly flowing from this accident, we come tc the clear conclusion that there was sufficient evidence .presented at the trial to warrant the jury in finding that the total deafness of the right ear and the damage to the eighth nerve producing the vestibular vertigo were not permanent in nature.

Nystagmus movement of the eyes, the rhomberg and the coloric tests, are objective tests of the labyrinthine or balance part of the ear. Nystagmus movement of the eyeballs was present, and the rhomberg test was positive in the first visits of the plaintiff to the Cleveland Clinic, confirming the subjective complaints of the plaintiff as to poor balance and vertigo. However, at tae visits to the clinic on October 17, 1950, March 15, 1951, April 19, 1951, and February 22, 1952, these two tests were negative, despite the fact that the complaints of the plaintiff continued the same. His eyes, examined on February 22, 1952, were reported normal in reaction to light and accommodation with pupils equal. The hearing was tested by an Audiometer in which the plaintiff was required to respond to tones electrically transmitted to his ear. This test is subjective and depends for accuracy upon the will and desire of the subject. Defendant’s expert tested the hearing with tuning forks used in such a way that the patient, in response to the tones produced by them, was unable at the time to tell whether the sound was heard by his right ear or left ear, thereby permitting the doctor to give absolute verity 4o the response given. This expert also reported the nystagmus movement of the eyes and the coloric tests negative.

It is fundamental that the jury determines the weight to be given the opinions of expert witnesses and can believe one or the other of two conflicting conclusions, depending upon which one, in their judgment, is the better sustained by the facts on which based and the reasons advanced. Clark v. State, 12 Ohio, 483.

We are consequently constrained to hold that the verdict was not grossly inadequate or manifestly against the weight of the evidence.

In Columbus Railway Power & Light Co. v. Pickles, 28 Ohio App., 183, 162 N. E., 614, paragraph three of the syllabus provides:

“To what extent injuries sustained by plaintiff when streetcar ran into rear of the automobile, were permanent, held question for jury.”

In Stremmel v. Lynch, 17 Ohio Law Abs., 197, paragraph two of the headnotes provides:

“It is the obligation of a reviewing court to support the judgment of a trial court if it can be done; to reverse a judgment on the weight of evidence, the verdict must be so contrary to the probative effect of the evidence as to shock the conscience.”

We, accordingly, find no prejudicial error in this case and affirm the judgment rendered.

Judgment affirmed.

Skeel, P. J., and Hurd, J., concur.


author: Hunsicker, J.

text:
    Nellas, Appellee, v. Manufacturers Casualty Ins. Co., Appellant.
    (No. 4360
    Decided December 2, 1953.)

      Messrs. Harris, Sacks S Subrin, for appellee.

      Messrs. Walker, Alpeter, Reed & Diefenbach, for appellant.
   Hunsicker, J.

This is an appeal on questions of law.

William Gf. Nellas, the appellee, herein called Nellas, operated a tavern in the city of Barberton, Ohio, and, desiring public liability insurance, called one Joe Hill to effect the insurance coverage. Mr. Hill was not an agent of any specific insurance company, but, as a solicitor, placed, through Carter-Jenkins Agency of Akron, Ohio, some of the insurance business he obtained.

Mr. Hill, accompanied by James R. Dunning, the president of Carter-J enkins Agency, the authorized agent of the appellant, Manufacturers Casualty Insurance Company, herein called Casualty Company, went to the Nellas tavern in September, 1949. Upon inspection of the premises, they determined the premium payment necessary to buy the type of insurance which Nellas desired. Upon leaving the tavern, Mr. Dunning said to Nellas, concerning the purchase of the insurance, “Whenever you gentlemen are ready, let me know, or let Joe know.”’ Mr. Dunning testified that Mr. Hill was a solicitor affiliated with the Carter-Jenkins Agency, saying “they are the same as a salesman, only we look upon them - as independent contractors. ’ ’

Mr. Hill received a call on September 16, 1949, from Nellas, who said that he wished to buy the insurance which was discussed a day or two before when Hill and Dunning were out to the tavern. Mr. Hill then called the Carter-J enkins Agency, and asked one of the girls in the office to issue the policy of public liability insurance. Mr. Hill immediately, after this phone call, told Nellas that the insurance was in effect.

The policy of insurance was mailed to Nellas on September 22, 1949, bearing an effective date beginning September 19, 1949.

On September 18, 1949, one William Malone, an invitee, suffered an injury in the Nellas tavern. When this injury was reported, through Mr. Hill, to the Carter-J enkins Agency, and through them to appellant, Casualty Company, the Casualty Company denied any liability, stating that the policy did not become effective until September 19, 1949. Mr. Malone thereafter brought suit against Nellas, and such action was settled by Nellas, at the time of trial, for $750, plus attorney fees of $250, and the court costs of $12.45, or a total of $1,012.45.

Nellas then brought an action against the Casualty Company, claiming that, upon representation of the insurance solicitor, Mr. Hill, his policy became effective on September 16, 1949, at the time Mr. Hill notified the authorized agent, Carter-Jenkins Agency, of the placing of the insurance, and then informing him, Nellas, that he had public liability insurance coverage.

At the trial in the Court of Common Pleas, the trial judge charged the jury, in part, as follows:

“Did Mr. Hill receive a request from the plaintiff for coverage some time before that Sunday when the injury occurred at the place, and did Mr. Hill, having received a request for coverage before that date, assure the plaintiff that he was covered. The plaintiff says that is true. The defendant says it is not true. That is the only question you have to determine, for if you find by the greater probability of the truth that it is true, then you should return a verdict for the plaintiff in the amount of $1,012.45. If you find there is not a greater probability of the truth in favor of what the plaintiff says, then you should return a verdict for the defendant. ’ ’

The jury returned a verdict against the appellant, and in favor of Nellas, for the amount prayed for, and a judgment on the verdict was then entered by the trial court. It is this judgment that is before this court for review.

The appellant, Casualty Company, says that the trial court should have directed a verdict in its favor, because, before any action could be brought on the policy, an action to secure a reformation of the policy must be sustained. The appellant also claims that the trial court erred in its instructions to the jury:

“ (a) In refusing to submit the question as to whether Mr. Hill was agent for the defendant.

“(b) In ruling that the only question for the jury was whether Mr. Hill received a request from the plaintiff for coverage prior to the Sunday when the injury occurred.”

In consideration of the claim that the action in the trial court was upon a written policy of insurance whose effective date was September 19, 1949, and that such policy must be reformed before an action will lie, it is to be noted that the petition is based upon the claim that a contract of insurance was entered into on September 16, 1949. The petition does contain an allegation that a policy of insurance, containing all the terms and conditions of the agreement of September 16, 1949, except as to the date when it became effective, was issued to Nellas on September 19,1949. Since the petition disclosed that the action was being brought on the oral contract of insurance, and not on the written policy of insurance issued on September 19, 1949, the claim that Nellas must first secure a reformation of the agreement is not well taken.

The chief complaint of the Casualty Company concerns the charge of the court, which in effect stated that, as a matter of law, Mr. Hill was the agent for the appellant, with authority to enter into the contract of insurance.

It is well settled that the law itself makes no presumption of agency. In the instant case; however, we are not confronted with a presumption of agency, for Mr. Dunning, president of Carter-Jenkins Agency, the authorized agent of the Casualty Company, said that Mr. Hill was the solicitor for his agency, and, further, when talking to Nellas, said that, if insurance was desired, he, Nellas, should notify either Mr. Hill or Mr. Dunning.

For whom, then, was Mr. Hill acting when a day or two later he phoned to the Carter-J enkins Agency, and ordered the insurance effective on that day — to wit, September 16? He was at that time, from the testimony of Mr. Dunning, the agent of Carter-J enkins Agency, the admitted authorized agent of the appellant, who thereafter issued the policy of insurance to Nellas.

In this case we are confronted with the effect of Section 9586, General Code (Section 3929.27, Revised Code), which was a statute entitled “Solicitor agent of company” and found in Chapter 1 (General Provisions) of Subdivision II (Insurance Upon Property and Against Certain Contingencies) of Division III (Insurance Companies) of Title IX (Private Corporations) of Part Second of the General Code of Ohio. This statute read as follows:

“A person who solicits insurance and procures the application therefor, shall be held to be the agent of the party', company or association, thereafter issuing a policy upon such application or a renewal thereof, anything in the application or policy to the contrary notwithstanding. ’ ’

If such statute was effective as to an application for public liability insurance, the question for the jury was: Did Mr. Hill, as the insurance solicitor, receive the application on September 16, and at that time notify the authorized agent of the appellant Casualty Company to immediately issue the insurance, and, after that conversation with such agent, did Mr. Hill notify Nellas that the insurance coverage was effected?

In the case of Fay, Admr., v. Swicker, 154 Ohio St., 341, 96 N. E. (2d), 196, the court said, at p. 346:

“It is a query whether this section is applicable to any contracts of insurance except those concerning buildings and structures. The section stems from an act ‘to regulate contracts of insurance of buildings and structures,’ enacted March 5, 1879 (76 Ohio Laws, 26, Section 2). It was coupled with present Section 9583, General Code, which requires agents in this class of insurance to examine the buildings or structures insured and to fix their insurable value.

“Section 9586, General Code, was amended in 1904 (97 Ohio Laws, 160), but still carried the designation that it concerned insurance on buildings and structures. The section was codified in the Revised Statutes of 1880 under the heading, ‘insurance companies other than life,’ and it was not until the revision of the Code in 1910 that the section received its present number and was placed under the general provisions in respect to insurance upon property and against certain contingencies.”

The application of the statute (Section 9586, General Code) to situations with respect to fire insurance has been pased upon by the courts in many cases. Hall v. Franklin Fire Ins. Co., 149 Ohio St., 216, 78 N. E. (2d), 360; John Hancock Mutual Life Ins. Co. v. Luzio, 123 Ohio St., 616, paragraph three of syllabus, 176 N. E., 446; Krumm v. Jefferson Fire Ins. Co., 40 Ohio St., 225; Lambert v. Connecticut Fire Ins. Co., 49 Ohio App., 483, 197 N. E., 349; Northwestern National Ins. Co. v. Ferstman, 42 Ohio App., 55, 181 N. E., 499; Mechanics & Traders Ins. Co. v. Himmelstein, 24 Ohio App., 29, 155 N. E., 806.

There are few reported cases where the force and effect of such statute has been held applicable in other types of insurance. State Auto Mutual Ins. Assn. v. Spileski, 10 Ohio Law Abs., 618 (auto liability); and National Surety Co. v. Bohn, 11 Ohio Law Abs., 113 (credit insurance), affirmed in 125 Ohio St., 537, 182 N. E., 506.

In the case of John Hancock Mutual Life Ins. Co. v. Luzio, supra, the court clearly pointed out the difference in the nature of the duties of a solicitor for life insurance and a solicitor for fire insurance. The insurability of one seeking life insurance usually depends upon an examination by a skilled medical examiner, whereas the insurability of one seeking fire insurance does not depend upon a technical or skilled examination of the premises, but rests principally upon the value of the premises, the amount of insurance desired, and the fixed rate of premium for premises of the kind and character sought to be insured.

The similarity, in so far as a fire insurance risk Is concerned, and the nature of the contingencies for which insurance is desired in other types of liability, such, as personal liability insurance and property damage insurance, is readily apparent. In such types of insurance, there need be no examination by a skilled person. In addition, liability for injury to persons or damages to property is-present at all times to one who is engaged in any commercial transaction. A similar liability to respond in damages may arise in the everyday life of an individual, even though he may not be engaged in business.

Thus, from the very nature of the contingencies for which public liability insurance is purchased, and the similarity in conducting the sale of fire insurance policies and public liability policies, we believe that Section 9586, General Code, was applicable in the situation presented by the instant case.

In the above discussion with respect to the nature of fire insurance and public liability insurance, we have sought in part to show that, in the case now before us for review, the statute (Section 9586, General Code) was properly applied by the trial court. There is another and more efficient reason why the statute had application to the instant case.

As we stated earlier, Section 9586, General Code, was found in Chapter 1, entitled “General Provisions,” of Subdivision II, entitled “Insurance Upon Property and Against Certain Contingencies.” Section 9510, General Code, of such subdivision, as amended effective August 6, 1941, said in part:

“A company may be organized or admitted under this chapter to:

“2. Make insurance on the health of individuals and against personal injury, disablement or death, resulting from traveling or general accidents by land and water; make insurance against loss or damage resulting from accident to property, from cause other than fire or lightning; guarantee the fidelity of. persons holding places of public or private trust, who are required to, or, in their trust capacity do receive, hold, control, disburse public or private moneys or property; guarantee the performance of contracts other than insurance policies, and execute and guarantee bonds and undertakings required or permitted in all actions or proceedings, or by law allowed; make insurance to indemnify employers against loss or damage for personal injury or death resulting from accidents to employees or persons other than employees and to indemnify persons and corporations other than employers against loss or damage for personal injury or death resulting from accidents to other persons or corporations. ”

Thus it is seen that, by this section, insurance other than fire was provided for, and the very type of insurance under consideration was specifically mentioned therein. The general provisions in this subdivision, in which Section 9586, General Code, was a part, must be held to apply to all forms of insurance mentioned in Section 9510, General Code.

It therefore follows that one who solicits and takes an application for insurance of the type set out in the instant case, upon which application a policy is thereafter issued, is deemed to be the agent of the company issuing such policy, “anything in the * # * policy to the contrary notwithstanding.”

When Mr. Hill accepted the application of Nellas and notified Carter-Jenkins Agency, the authorized agent of the appellant Casualty Company, to put the insurance into effect, and told Nellas that such insurance was in full force from the time of such notification, he, Mr. Hill, was the agent of the appellant Casualty Company.

We determine that the trial court did not commit error prejudicial to the rights of the appellant when, in its charge to the jury, it stated in effect that, as a matter of law, Mr. Hill, the insurance solicitor, was the agent of the appellant Casualty Company at the time he accepted the application of Nellas for the public liability policy.

We have examined the claimed errors, and find none prejudicial. The judgment is affirmed.

Judgment affirmed.

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


author: Doyle, P. J.

text:
    The Direct Transportation Co., Appellant, v. The Baltimore & Ohio Rd. Co., Appellee.

      (No. 4374
    Decided November 25, 1953.)

      Messrs. Gottwald, Rershey <& Hatch, for appellant.

      Messrs. Wise, Roeteel, Maxon, Kelly & Andress, for appellee.
   Doyle, P. J.

The Direct Transportation Company contracted with The Baltimore & Ohio Railroad Company to haul quantities of its freight from one of its freight stations in Akron, Ohio, to others of its freight houses, as well as to the freight depots of other connecting railroad lines in the cities of Akron, Barber-ton and Cuyahoga Falls, Ohio. In part performance of the agreement, the independent contractor (Direct Transportation Company) parked four of its trailer units at the railroad company’s freight house loading platform, for the purpose of being loaded, per contract provisions, by the railroad company’s employees, under the supervision of the contractor. Sometime shortly thereafter, before the loading commenced, a freight car, under the exclusive control of the railroad, was pushed off of the end of its track during a switching operation, and caused to collide with the contractor’s trailers. The trailers were substantially damaged.

In an action in tort for damage to the property In which the above facts were admitted, the trial court (the Court of Common Pleas of Summit County) found for the defendant railroad company, and based its judgment upon language in the contract — which language, under various circumstances, exempted the railroad company from liability to the contractor. We are here called upon to .determine the propriety of the court’s ruling.

The controversial paragraph in the contract is in the following words and phrases:

“8. Said contractor agrees to and does hereby release all his claims on account of injury to or death to himself, or damage to or loss of any of his property arising in any manner whatsoever in the performance of the obligations he has undertaken in this agreement, whether the negligence of said Baltimore Company contributed thereto in whole or in part. ’ ’

1. It will first be observed that the law of exculpation does away with some of the legal incidents which arise from the creation of a legal relationship when the parties, by express contractual stipulation, so agree. In the case under consideration, if the facts are those stated in the pleadings' — and we so find them— the liability for the damage sustained would seem to rest upon the railroad, in a suit brought by the independent contractor, unless the claimed exculpatory clause does away with the legal incident of liability for the railroad’s negligence.

On the ground that there is neither disparity of bargaining power between the contracting parties nor a social reason for preserving the legal incidents of the relationship of the parties, we hold that they should be allowed in law to freely contract in reference to situations confronting them. Under this view of the contract, the exculpating provision in this case cannot be successfully challenged.

In II Restatement of the Law of Contracts, Sections 574 and 575, may be found the following terse rules, which we adopt for the case before us: *

“A bargain for exemption from liability for the consequences of negligence not falling greatly below the standard established by law for the protection of others against unreasonable risk of harm, is legal except * * *

“ (1) A bargain for exemption from liability for the consequences of a wilful breach of duty is illegal, and a bargain for exemption from liability for the consequences of negligence is illegal if

“ (a) the parties are employer and employee and the bargain relates to negligent injury of the employee in the course of the employment, or

“(b) one of the parties is charged with a duty of public service, and the bargain relates to negligence in the performance of any part of its duty to the public, for which it has received or been promised compensation.

“ (2) A bargain by a common carrier or other person charged with a duty of public service limiting to a reasonable agreed valuation the amount of damages recoverable for injury to property by a nonwilful breach of duty is lawful. ’ ’

See: 37 Columbia Law Review, 248, and cases and texts therein cited; 175 A. L. R., 8, annotation; 12 American Jurisprudence, Contracts, Section 183; 38 American Jurisprudence, Negligence, Section 8; 29 Ohio Jurisprudence, Negligence, Section 11.

It is obvious that the facts of the case under review do not bring the case under any of the exceptions noted above.

2. Deciding, as we do, the legal effect of the exculpating provision, we next approach an interpretation of it.

The appellant has resorted to dictionary definitions of various of the words used in arguing his claim that exoneration of liability of the railroad for its negligence is contractually given only for negligence committed by it in its work in fulfilling its part of the contract, and, in the instant case, that the railroad’s negligence was not committed in fulfilling any of its contractual obligations.

We accept as a fact that words generally have several meanings, even in the dictionary. We must assume the obligation of determining, from the language used, what the words, would mean in the mouth of a normal speaker of English, using them in the circumstances in which they were used. If the words used are taken in that sense, neither party can complain, for each party has notice that the other will understand his words accordingly.

It is specifically claimed by the appellant (plaintiff below) that the provisions of the exculpating clause are inapplicable because:

“ (a) Direct Transportation Company was not in the act of performing its obligations under the contract at the time of the occurrence, and

“(b) The act of the railroad causing the collision had no connection whatsoever with the subject matter of the cartage contract.”

Directing attention to (a) above, if we accept the appellant’s analysis of the contractual phrase, “arising in any manner whatsoever in the performance of the obligations he has undertaken in this agreement, ’ ’ as meaning ‘ ‘ arising in any manner whatsoever during the performance,” etc., we still must conclude that, to the normal speaker of English, the phrase would control a completed part performance of the contract— i. e., the parking of the trailers on the railroad company’s premises for the purposes of being loaded by the railroad and later being hauled away by the contractor, and that, as a result thereof, the damage oceurred “during” the contractor’s performance — i. e., throughout the continuance and course of the contract. In other words, we hold that the contractor was performing its obligations under the contract when the damage occurred; and even though he had entirely completed the first step of his several obligations, he was nevertheless in the performance of his obligations.

In reference to appellant’s claim under' (b) above, it is argued that the trial court entirely ignored the significance of the phrase “whether the negligence of said Baltimore Company contributed thereto in whole or in part.” It is urged that the word “contribute” means “give something, to a common purpose,” etc. It is argued that “In the light of the meaning of the word ‘contribute,’ it would seem unequivocal that the negligent acts for which the railroad shall be relieved are those which contributed to the common purpose— namely, the cartage of the railroad’s * * * freight. To hold as the trial court did, that paragraph 8 includes all negligent acts of the railroad, irrespective of their relationship to this common purpose of cartage, is to do violence to the general rule constituting the major premise of this syllogism.”

The members of this court think contrarywise to this claim of the appellant. The contract relieves the railroad from liability for the contractor’s property damage while the contractor is in- the performance of his contract, regardless of the cause of the damage. “In any manner whatsoever” means, as stated by the trial judge, “however it may happen in the performance of the obligations he (the contractor) has undertaken.” The word “contributed” as used in the contract refers to the damage, and not, as claimed, to the negligence of the railroad while it is performing its obligations under the contract of “cartage of the railroad’s * * * freight.”

It-is our conclusion that the exculpating clause of the contract relieves the railroad from liability, and that the trial court’s judgment should be sustained.

J udgment ■ affirmed.

Stevens and Hunsicker, JJ., concur.


author: Middleton, J.

text:
    The State, ex rel. Spitler, City Solicitor, v. Beidleman, Auditor.
    (No. 332
    Decided June 17, 1953.)

      Mr. Downs C. Spitler and Messrs. Squire, Sanders & Dempsey, for relator.

      Mr. Paul R. Ebel, for respondent.
   Middleton, J.

This is an action in mandamus begun in this court and is submitted to the court upon the petition and a demurrer filed thereto.

The facts are not in dispute, and, in brief, are as follows:

The council of the city of Tiffin passed a resolution which provided for the submission to the electors of the city of Tiffin the question of issuing bonds for the purpose of constructing, enlarging and improving the municipal sewerage system. The resolution provided for a tax levy outside of the 10-mill limitation to pay the interest and principal on such bonds which are to be retired over a maximum period of 25 years.

This resolution was certified to the auditor of Seneca county who calculated the average annual levy which would be required to pay the interest and retire the same. The certification was based upon the language of the resolution providing for a maximum maturity period of 25 years for such bonds.

Thereafter, the Tiffin city council adopted its resolution determining to proceed with such election, and, pursuant to the resolution and the county auditor’s certificate, such action was certified to the Board of Elections of Seneca County.

Pursuant to such certification, the Board of Elections of Seneca County caused notice of the election to be published as provided by law. The notice of election provided that the bonds in question should have a maximum maturity period of 25 years, but the ballot which was prepared and which was submitted to the electors of the city of Tiffin provided for a maximum period of 30 years to pay the principal and interest of such bonds.

This question was submitted to the electors of the city of Tiffin at the regular election following, and as a result of such election an affirmative vote cast upon the issuing of such bonds was more than the majority required by law. The result of said election was certified by the board of elections to the auditor of Seneca county and the Department of Taxation of the state of Ohio.

Thereafter, the county auditor furnished a certificate as to the estimated life of the property and improvement to be financed, and the maximum maturity period of such bonds, which was certified to be 25 years.

The Tiffin city council thereupon passed its resolution providing for the issuance of notes to be issued in anticipation of the bonds authorized at such-election.

The notes authorized were offered to the treasurer of the city of Tiffin and rejected by him and, thereafter, tendered to the respondent auditor for her signature and delivery as provided by the ordinance.

Respondent has refused and does refuse to execute such notes for the reason that the legislation above referred to and the notice of the election submitting such proposal to the electors of the city of Tiffin provided for a maximum maturity period of 25 years for the bonds, whereas the ballot submitting the same to the electors of the city of Tiffin provided for a maximum maturity period of 30 years.

The sole question presented in this case is: Does the form of the ballot which was submitted to the electors of the city of Tiffin, which provided for a maximum maturity period of 30 years rather than a maximum maturity period of 25 years, as set by the proceedings of the city council and the certifications of the county auditor and the city auditor render said bonds invalid?

The case of State, ex rel. Curren, Dir. of Law, v. Rees, Dir. of Finance, 125 Ohio St., 578, 183 N. E., 432, is relied upon by the respondent for her refusal to execute and deliver the notes in question.

In that ease, the Supreme Court adopted as its per curiam opinion the journal entry of the Court of Appeals which held that the provisions of the Uniform Bond Act must be strictly and not liberally construed; that the maximum time for bonds to run ■ cannot be lessened or increased; that substantial compliance with the provisions of the Uniform Bond Act is not sufficient; and that the discrepancy existing in that case was material and impaired the validity of the proceedings in connection with the bond issue.

Since the decision of the Curren case, the Supreme Court in several cases has referred to and commented on the court holding in the Curren case.

In the case of State, ex rel. City of Delaware, v. Main, Mayor, 129 Ohio St., 239, 194 N. E., 454, Chief Justice Weygandt, referring to the Curren case, stated at page 242:

“The court held simply that the provisions of that general act [the Uniform Bond Act] should be construed with sufficient strictness to prevent the issuance thereunder of bonds whose maturities had been left in doubt by reason of a discrepancy in the various steps taken during the proceedings.”

In the case of State, ex rel. Bd. of Edn. of Springfield Local School Dist., v. Maxwell, 144 Ohio St., 565, 60 N. E. (2d), 183, it is stated in the second proposition of the syllabus:

“2. The bond issue of a political subdivision, approved at an election by more than the requisite percentage of electors voting thereon, will not be invalidated on the ground that the resolution of necessity passed under Section 2293-19, General Code, provided for a maximum maturity of 20 years, whereas the notice of the election and the ballots submitted provided for a tax levy covering a maximum period of 22.5 years.”

In the opinion, Judge Zimmerman. stated at page 569:

“It has been generally held that defects, variances and irregularities in the several steps relating to the issuance of bonds should be material, harmful or both before the proceeding may be successfully attacked. See 5 McQuillen on Municipal Corporations (2 Ed.), 363, 1025 and 1035, Sections 2035, 2263 and 2264. It has also been held that unsubstantial irregularities in the resolution of a political subdivision inaugurating an election on a bond issue which do not prejudice anyone will be disregarded, especially where the proposed bond issue as submitted was approved by considerably more than the requisite number of- electors. ’ ’

Later, in the case of State, ex rel. Lauderbaugh et al., Bd. of County Commrs. of Franklin County, v. Little, Clerk, 149 Ohio St., 560, 80 N. E. (2d), 148, in commenting on the Curren case, it is stated at page 562:

“That case was distinguished on the facts and for the reasons stated in the two later cases of State, ex rel. City of Delaware, v. Main, Mayor, 129 Ohio St., 239, 194 N. E., 454, and State, ex rel. Board of Education of Springfield Local School District, Summit County, v. Maxwell, 144 Ohio St., 565, 60 N. E. (2d), 183.

“In neither of those two later cases did this court hold that the variance, irregularity or discrepancy in maturity dates impaired the validity of the bond-issue proceedings.

“Section 2293-9, General Code, explicitly provides that ‘the maturities of bonds, notes or other evidences of indebtedness * * # shall hot extend beyond’ the limitations specified in the classifications named in that section, but does not require that all such obligations must run the full period of time.

“Section 2293-21, General Code, requires that a notice of election shall state, among other facts, ‘the maximum number of years during which such bonds shall run,’ and Section 2293-23, General Code, prescribes the form of ballot setting forth the average millage ‘for a maximum period’ of years to pay principal and interest of the bonds. Those requirements are for the purpose of informing the electors of the greatest length of time they may be compelled to pay principal and interest.

“Section 2293-26, General Code, relating to the resolution to issue bonds, although providing that the amount of bonds shall not be greater than that authorized and their purpose shall be in accordance with the prior resolution or ordinance, expressly provides that ‘the date, rate of interest and maturity * * * need not be the same as those fixed in the prior resolution or ordinance.’ ”

In the instant case, the misstatement of the maximum maturity of the bonds was not such a departure from the statute as could mislead, deceive or confuse the electorate.

On the authority of the cases just referred to, decided by the Supreme Court since the opinion was announced in the Curren case, the court finds on the question of the invalidity of the bond proceedings in favor of the relator. The demurrer to the petition is, therefore, overruled.

Demurrer overruled.

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


text:
    The State of Ohio, Appellee, v. Miller, Appellant.
    (No. 537
    Decided October 23, 1953.)

      Mr. George B. Smith, prosecuting attorney, for appellee.

      Messrs. Sehlafman & Elliott, for appellant.
   Per Curiam.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Greene County overruling defendant’s motion to dismiss the indictment.

On July 7, 1953, the grand jury returned an indictment against the defendant for forgery. On July 9 the defendant was arrested and released on bond. On July 10 the defendant pleaded not guilty and the matter was continued. Upon request of the defendant the bond posted in the Municipal Court of Xenia was transferred to the Common Pleas Court. On July 23 the defendant moved to dismiss the indictment for the reason that prior to the indictment defendant had requested a preliminary hearing on the same charge in the Municipal Court of Xenia; that this case was still pending on the day the grand jury returned the indictment; and that the preliminary hearing had not been held. The charge in the Municipal Court of Xenia was dismissed on July 10.

The order appealed from is the overruling of defendant’s motion to dismiss the indictment. This is not a final order within the meaning of Section 12223-3, General Code. The “judgment or final order” referred to in Section 13459-1, General Code, and “judgment or order” referred to in Section 13459-3, General Code, contemplate only such final orders as are defined in Section 12223-2, General Code. See 2 Ohio Jurisprudence, 170, 194, Sections 90 and 100. The order appealed from does not determine the action and prevent a judgment, and the action is still pending in the trial court.

■ The principal issue raised by the defendant is whether the grand jury had the authority to return an indictment against him while a charge for the same offense was pending in the Municipal Court of Xenia in which the defendant had requested a preliminary hearing, which had not been held at the time of the return of the indictment. Only the jurisdictional question can now be raised, as other defenses were waived by entering a plea of not guilty to the indictment. Section 13439-11, General Code. We draw from the defendant’s brief the contention that the Common Pleas Court was without jurisdiction.

In our opinion, the grand jury, in the exercise of the authority conferred by Section 13436-5, General Code, may return an indictment against a defendant even though such defendant has been charged with the same offense in a magistrate’s court and has requested a preliminary hearing under the provisions of Section 13433-1, General Code, which has not been held at the time of the return of the indictment. The Common Pleas Court had jurisdiction to proceed against the defendant under the indictment.

It should be noted also that the examination or preliminary hearing in the Municipal Court of Xenia was postponed at the request of the defendant for a period of time in excess of that provided by Section 13433-1, General Code. The record does not show that both parties consented to such continuance. In such case such postponement “shall have the legal effect of a dismissal of said proceeding for want of prosecution.” in the entry of dismissal the Municipal Court of Xenia found that it had lost jurisdiction. Such dismissal “shall not have the effect of a bar to any further proceeding upon the same charge.” Section 13433-1, General Code.

The Common Pleas Court had jurisdiction, and it was not error to overrule the defendant’s motion to dismiss the indictment.

The judgment is affirmed, and the cause is remanded for further proceedings according to law..

Judgment affirmed.

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