author: Hurd, P. J. Skeel, J.,

text:
    Culver et al., Appellants, v. City of Warren et al., Appellees.

      (No. 1183
    Decided July 6, 1948.)

      Mr. William H. Brooks, Mr. J. Franklin Spruill and .Mr. W. M. Howard, for appellants.'

      Mr.- Mark J. Williams, city solicitor, and Mr. H. A. .Burgess, for appellees.
   Hurd, P. J.

This action in equity, now in this court ■on appeal on questions of law and fact, originated in the Common Pleas Court of Trumbull county wherein a judgment was rendered in favor of the defendants, appellees herein, denying the prayer of the plaintiffs’ amended petition for a declaratory judgment, injunction and equitable relief.

For brevity and convenience the parties will be •designated hereinafter as plaintiffs and defendants as they appeared in the trial court.

The defendants are the city of Warren, the duly •elected, qualified and acting mayor of the city, the •duly appointed, qualified and acting public service and safety director of the city, the superintendent of parks, the Veterans Swim Club, a corporation not for profit organized under the laws of Ohio, and the Attorney ■General of Ohio, the latter being made a party defendant because under the laws of Ohio it is so required.

This action relates exclusively to the rights of •colored citizens to use and enjoy the Warren municipal swimming pool built at public expense with federal and municipal funds, located on Mahoning avenue adjacent to Packard Park in the city of Warren.

In their amended petition the plaintiffs allege that they are citizens, residents and taxpayers of the city of Warren, and are the president and secretary respectively of the Warren, Ohio, branch of the National Association for the Advancement of Colored People,, an unincorporated association formed for the purpose of obtaining equal rights and opportunities for negro citizens and residents of the city of Warren and to fight injustices in courts when based on race prejudice, on behalf of themselves and other persons similarly affected at the time of the grievances complained of in the amended petition.

In August 1933, the council of the city adopted resolution No. 1143 “declaring the necessity for the construction of a concrete swimming pool with filters and bathhouse facilities upon city lands adjacent to-Packard Park at an estimated cost of $40,000; to take-advantage of the benefits available under the ‘National Recovery Act’ by constructing such public works as a means of providing employment and authorizing an-application to the Federal Emergency Public Works-Administration for a grant of thirty per cent of such-sum and a loan of seventy per cent thereof to be acquired by mortgage upon the improvement.”

Section 1 of the resolution is as follows:

“Warren City Council does hereby find and determine the necessity for the construction of a reinforced concrete swimming pool with filter and bathhouse-facilities, at an estimated cost of $40,000 to be constructed upon city-owned park lands adjacent to-Packard Park; as a means of providing work for numerous unemployed citizens of the city of Warren.”

The property upon which the swimming pool was-•constructed had been originally purchased by the city with municipal funds for the benefit of Packard Park Commission by ordinance No. 208 adopted in February 1913. In February 1934, ordinance No. 208 was amended by ordinance No. 2683, whereby the property was purchased for the city, removed from the control ■of the Packard Park Commission and placed under the jurisdiction of the public service director of the ■city. A reinforced concrete swimming pool with bathhouse and filtration facilities, denominated as the Warren Municipal Swimming Pool was constructed and ■completed some time in 1934 and was open to the use of the general public without discrimination as to race or color during the successive summer seasons from the time of its opening to the year 1946. However, in the year 1946 as appears from the record, difficulties arose concerning the use of the pool by members of the negro race. The testimony of the mayor of the city of Warren under cross-examination is illuminating on this subject and is in part as follows:

“Q. Directing your attention to the opening of the swimming pool for the season of 1946 was there any •discussion between you and a representative of the colored people as to the use of the swimming pool by them? A. Yes, sir.

■* * # * *

“Q. What was the substance of the discussion? A. That some arrangement might be made whereby we •could arrive at a date or some compromise as to the use of the pool because the pool the year before had been closed, because of this particular situation arising.

“Q. At first I believe you took the position that the swimming pool should be open for all citizens regardless of all races or creeds? * * * A. I wanted to open the swimming pool for use of the public. I got the-legal opinion from Mr. Del Bene that under the laws of Ohio I could — there was no way we could open it with discrimination and we opened it under that basis-.

“Q. In other words, as I get it, you got the opinion-from Mr. Del Bene the city solicitor? A. That’s right.

“Q. To the effect that there was no way to open the pool unless you opened it to all citizens? A. That’s right.

“Q. And that was your position? A. That’s right.”'

It appears further that during the swimming season of 1946 a number of white citizens, who objected: to swimming in the pool with persons of the negro-race, started going to Niles, Ohio, and- other adjoining cities to swim in their pools. The negro citizens were then approached through such organizations as-the Warren branch of the N. A. A. C. P. the Warren-Urban Society and requested to agree to restrict their use of the swimming pool to one day per week which-they declined to do. Thereafter on July 16, 1946, the-city council of Warren enacted emergency ordinance-No. 3518 authorizing the public works director to lease-the pool for the swimming season of 1946 and 1947. The pool was not leased during the swimming season-of 1946 but was leased for the season of 1947 to the-defendant, Veterans Swim Club. This is a private-corporation not for profit, evidently formed for the purpose of taking over the operation of the swimming pool, since its charter is dated January 20, 1947, and its constitution was adopted on June 3, 1947, three days before it acquired the lease from the city.

The purposes of the corporation set-forth in its constitution are as follows:

“(a) To incorporate swimming in the recreation program of veterans and their families ;

“ (b) To provide a place for swimming and recreation for veterans of the United States Armed Forces, ■all wars, and their families.'” (Emphasis added.)

Under the membership clause appears the following:

“(a) All prospective members shall be recommended for membership of the club.

“(b) All members must be veterans of the United States Armed Forces and relatives of a veteran.

“(c) All new members shall have the status of social members for a period of one year;

“(d) All applicants must pass a two-thirds vote (by secret ballot) of the executive board.” (All emphasis added.)

On June 6, 1947, the city of Warren leased the Warren municipal pool to the Veterans Swim Club for the season of 1947 without any consideration other than the provision in the lease contained in item 15 as follows:

“The successful bidder agrees to pay to the city of Warren on a bi-weekly rental equal to ten per cent of the gross receipts collected by the successful bidder, incident to the operation and maintenance of such leased premises.”

Other covenants are:

“The successful bidder shall keep proper books of accounts and records and the city shall have the right to audit such books and records as it deems necessary by its proper officers.”

“The city shall furnish all the buildings and equipment connected with the area and now located on the premises, described in ordinance No. 3518-46 except the personnel needed to manage and conduct the said premises.”

“The city reserves the right to make all the necessary repairs and alterations as it deems necessary during the term of the lease.” (Emphasis added.)

The record indicates that after the lease was executed the Veterans Swim Club through its agents and servants started circulating applications for membership at public schools, business places and private-clubs approaching and inviting only persons of the-Caucasian race. The plaintiffs herein attempted to secure membership application blanks but were unable-to do so.

When the swimming pool was opened for the season of 1947 the plaintiffs presented themselves to the Warren Municipal Swimming Pool and attempted to-gain admittance but were refused. The record shows also that all the negroes of the city who attempted to-gain admission to the pool were refused even though a number of them were world war veterans who were well qualified under the provisions of the constitution adopted by the Veterans Swim Club as veterans who had been honorably discharged from service. It is a peculiar fact appearing of record that applications of these negro veterans would be received in some instances together with the required fees and then later the applications and the fees were returned without explanation. At no time were any negro veterans or their families allowed the use of the swimming pool by the Veterans Swim Club.

There is evidence showing that before and after these incidents, committees of negro citizens called upon the city officials for the purpose of securing permission to use the facilities of the swimming pool but their efforts were unavailing. Thereafter on July 24, 1947, a petition was filed by plaintiffs for a declaratory judgment and mandatory injunction and on August 18, 1947, an amended petition for declaratory judgment, mandatory injunction and equitable relief was filed.

It is the claim of the plaintiffs that the lease and the ordinance under which it was enacted are null •and void as being contrary to the Constitution and laws of the United States and the state of Ohio, and further “that the lease arrangement as to the use of the Warren Municipal Swimming Pool was arbitrarily, maliciously and capriciously done by defendants herein in order to exclude negro citizens, taxpayers and residents illegally from the use of said swimming pool •and that negro citizens, taxpayers and residents are being excluded by the defendant lessees, the Veterans ■Swim Club,” all of which it is claimed constitutes an illegal and unjust exclusion of the use of public property and facilities on the ground alone of race and color.

As hereinbefore stated, the Common Pleas Court -denied the plaintiffs an injunction and held that the plaintiffs were not entitled to relief by way of a declaratory judgment or injunction.

The plaintiffs contend that the question presented in this action is:

“Can a municipality by leasing a swimming pool ■constructed with public funds to a corporation not for profit, relieve itself of the constitutional obligation to afford colored citizens equal rights with those #>of white citizens in the use of recreational facilities thereby provided?”

The defendants claim that the question presented :is “whether or not a municipality has a right to lease ■property when it is determined that it is no longer ■needed and is being operated at a loss.”

We shall consider both questions in the course of this opinion.

In order to arrive at the intent and purpose of the ■city in relation to the lease in question, the facts and -circumstances surrounding the transaction must be scrutinized. The history of events disclosed by the record is such as to lead to the inevitable conclusion that the real purpose of the lease to a private club, however it may have been disguised, was to exclude colored people from the use of this recreational facility, acquired and procured by the use of public funds ■derived from the municipality and from the United States Government.

In piercing superficial forms to view the substance it clearly appears from the conferences had with public officials before the legislation authorizing the lease was adopted in 1946 that efforts were first made to reach an agreement whereby there would be a segregated use of the facilities based alone upon racial distinctions. When these attempts of settlement by •agreement failed the ordinance providing for a lease to a private club was adopted and the Veterans Swim Club was organized for the purpose of securing the lease for the alleged benefit of veterans of “all wars of the United States.” The consideration for the lease was nominal, being merely a percentage of the gross income derived from proceeds of the operation of the pool thus requiring no initial outlay or expenditure by the corporation and no fixed sum by way of rental. There was no responsibility placed upon the lessees to maintain the pool. On the contrary all maintenance and repairs by the terms of the lease are the responsibility of the city. Despite the fact that this was ostensibly for the use of veterans of all wars of the United States, veterans who were colored were not permitted either membership in the club or the use of the pool. The provisions of the constitution of the Veterans Swim Club adopted three days before the lease was signed, were such that the membership could be controlled by an executive committee by secret ballot. The constitution of the association contains no provision either for selecting the executive committee or identifying its members. These and other facts and circumstances surrounding the entire transaction indicate a confirmed and determined policy to exclude the plaintiffs and those similarly situated from the use of the pool and its facilities on the sole ground of their race and color.

This case, therefore, presents for our consideration questions relating to the validity of a colorable leasing arrangement of public property by a municipality which has as its purpose the exclusion of persons of a designated race or color in the use and enjoyment thereof. Thus issues of basic importance are raised concerning constitutional guaranties under the Fourteenth Amendment.

Quite recently the Supreme Court of the United States has decided cases involving civil rights concerning enforcement of restrictive covenants based on race or color as violative of constitutional rights in respect of private property. The Supreme Court in the cases there under review, while dealing with private property rather than public property, held in substance that judicial enforcement by state courts of covenants restricting the use or occupancy of real property to persons of the Caucasian race is violative of the equal protection clause of the Fourteenth Amendment. Conceding that the amendment is directed against state action only and does not reach private conduct, however discriminatory, the Opinions hold that judicial action, even for the enforcement of private agreements, is state action, and so within the amendment’s field of operation; and that the enforcement of restrictive covenants against certain races is none the less discriminatory because courts will enforce them against any race against whom they are directed, including the white race. See Shelley v. Kraemer, 334 U. S., 1, 92 L. Ed., —, 68 S. Ct., 836, decided May 3, 1948. See, also, Hurd v. Hodge, 334 U. S., 24, 92 L. Ed., —, 68 S. Ct., 847, decided May 3, 1948.

In the case of Shelley v. Kraemer, supra, the fifth paragraph of the headnotes as reported in 92 L. Ed., is as follows:

<!5. The action of state courts and of judicial officers in their official capacities, even though taken for the enforcement of private agreements, is state action within the provision of the Fourteenth Amendment that no state shall deny to any person within its jurisdiction the equal protection of the laws.”

In the instant case we have a constitutional question concerning the use of public property where governmental as well as private discrimination is charged and in our opinion proved by clear and convincing evidence. In this respect our finding of fact is contrary to the finding of the Common Pleas Court where it was held in substance that the city council acted in good faith from motives of economy only. We think such a conclusion is not supported by the evidence in the record before us.

The action of the officials of Warren who are defendants herein together with the conduct of the defendant, Veterans Swim Club, indicates a concerted effort on the part of all those defendants which is violative of the first section of the Fourteenth Amendment which reads as follows:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

From the facts here found, it is clear that the Veterans Swim Club, a corporation not 'for profit, was a mere agent or instrumentality through which the city of Warren operated the swimming pool, at least to the extent that the rights of its citizens to the use of the pool are affected.

As stated by Moore, J., in the very recent case of Lawrence v. Hancock, 76 F. Supp., 1004 (U. S. Dist. Ct. Charleston, W. Va.), decided February 11, 1948:

“Justice would be blind indeed if she failed to detect the real purpose in this effort of the City of Montgomery to clothe a public function with the mantle of private responsibility. ‘The voice is Jacob’s voice’ even though ‘the hands are the hands of Esau.’ It is clearly but another in the long series of stratagems which governing bodies of many white communities have employed in attempting to deprive the Negro of his constitutional birthright; the equal protection of the laws. See Smith v. Allwright, Election Judge, et al, 1944, 321 U. S., 649, 64 S. Ct., 757, 88 L. Ed., 987, 151 A. L. R., 1110 [1944]; Nixon v. Condon et al. (1932), 286 U. S., 73, 52 S. Ct., 484, 76 L. Ed., 984, 88 A. L. R., 458; Clay Rice et al. v. George Elmore (C. C. A., 4, 1947), 165 F. (2d), 387; Kern v. City of Newton, 151 Kan., 565, 100 P. (2d), 709, 129 A. L. R., 1156.”

Paraphrasing certain language in that case the city of Warren said in effect to the Veterans Swim Club:

Take this swimming pool; operate it properly during one season; pay to us ten per cent of the gross income; we will maintain it and repair the property while you are using it; return it to us at the end of the season; establish your own rules, control the membership of your club and the use of the pool by secret ballot SO' that colored persons cannot belong to the club or use the pool; and return it to us at the end of the season in as good condition and repair as when you took it over, natural wear and tear and damage or destruction, by the elements excepted.

Counsel for .defendants, in their brief, argue the question of whether the municipality had authority to enter into a lease agreement covering municipal property, and make the point that there was no 'formal dedication of this particular public property for use as a swimming pool and further that there was no statutory rqquirement that this property should be so used when title to it was vested in the city. Likewise, the learned trial judge discusses this question at considerable length to the same effect.

According to our view of the case this question has no particular significance or materiality and certainly is not controlling under the facts here presented. Whether the property was dedicated to public use is immaterial. The lease was temporary in character and the property continued to be municipally owned. It might well be emphasized also that not only the funds of the municipality were used in the purchase of the land but the funds of the United States Government were also used in the construction of the swimming pool, thereby demonstrating conclusively its character as public property. We believe that, although this question of dedication to public use is susceptible of academic discussion, it is not an issue here because the primary question is in respect of plaintiffs’ constitutional rights to equality of use and enjoyment of public property irrespective of the fact of dedication. Here we have a set pattern where all the defendants, municipal officials as well as the Veterans Swim Club, have quite obviously conspired to prevent the use by plaintiffs and other colored persons of a public recreational facility. The power to lease does not include the power to discriminate against members of a minority race in the exercise of their constitutional rights.

The city cannot, under a technical defense such as is here presented by means of a colorable leasing arrangement having no real substance except as to temporary operation, relieve itself from its constitutional obligation to afford to all citizens equal rights in the use of* public property. The facts here show that neither the members of the swim club nor any other private persons, contributed toward the acquisition of the land or the construction of the pool. Neither did the members of the swim club have any part in the operation or management thereof until the plan of leasing was hit upon as a means of exclusion on racial grounds.

It is our conclusion, therefore, that the Veterans Swim Club, a corporation not for profit, was a mere agent or instrumentality through which the city of Warren operated the swimming pool, ostensibly for veterans of all wars of the United States, but actually only for war veterans of the Caucasian race.

The facts in this case pose a question of constitutional right and privilege which cannot lightly be cast aside by a process of legal legerdemain which has the effect of turning over to a private organization public property for the sole purpose of racial discrimination.

Many cases have been cited as authority for the proposition herein discussed. The case most nearly analogous on the facts is the case of Lawrence v. Hancock, supra. Except that the names of the parties are different and the locale is different, the opinion of the court in that case could well be the opinion in this case. However it is not necessary to rest upon this authority alone. Time and again when issues such as are here determined have been presented to our courts the constitutional provisions of the Fourteenth Amendment have been repeatedly and consistently upheld.

In the case of Lincoln Park Traps v. Chicago Park District, 323 Ill. App., 107, 55 N. E. (2d), 173, decided by the Appellate Court of Illinois, May 2, 1944, it was held that a city park board cannot lease a portion of its lands to a private individual, group or corporation, when, by the terms of such lease, the demised land and the facilities located thereon are not available equally to all the people.

In that case a lease agreement to a private club similar to the one here in question was held invalid.

In the case of Kern v. City Commissioners of City of Newton, decided by the Supreme Court of Kansas, 151 Kan., 565, 100 P. (2d), 709, 129 A. L. R., 1156, the city officials leased a swimming pool to an individual who denied the use of the swimming pool to a colored man. The first paragraph of the-syllabus reads:

“In a proceeding for a writ of mandamus to compel city officials and the lessee of a swimming pool to permit plaintiff, a colored man, to use the pool, the fact that the city has leased the pool to one who is operating it does not relieve the city officials from the obligation to cause the pool to be operated so that there will be no discrimination against members of the colored race.”

It was held in that case that the city officials could not evade any of their official obligations or take away from the pool any of its characteristics by entering into a lease thereof. See note, 129 A. L. R., 1164.

Counsel for the city, in commenting upon the case of Kern v. City Commrs. of City of Newton, supra, says:

“The city had leased a swimming pool to Hunt and the court relying on Bailey v. Topeka, 97 Kan., 327, 154 P., 1014, held that the lease between the city and Hunt was nothing more than an arrangement whereby Hunt was to manage the pool for the city. Referring to Bailey v. Topeka the court said: ‘It was there determined that nothing was done to take away any of the public features of the park.’ ”

We note the comments to the same effect in the opinion of the trial court.

According to our view of the facts in this case we could make practically the same statement here. The relationship between the city of Warren and the Veterans Swim Club was nothing more than an arrangement whereby the Veterans Swim Club was to manage the pool for the city and further that nothing was done here to take away any of the public features of the swimming pool except the Veterans Swrim Club was given a free hand to operate the pool and to exclude people of the colored race. Such, we think, was the obvious purpose of the entire transaction, when the city was unable in the first instance to persuade colored people to agree to restrict their use of the pool in accordance with the request of the public officials.

Many other cases bearing upon the question of racial discrimination could be cited and quoted at great length. To do this would, however, extend this opinion .unduly. In a recent case decided by the Supreme Court of the United States, namely, Oyama v. California, 332 U. S., 633, 92 L. Ed., 257, 68 S. Ct., 269, the opinion, on page 636, covers well, we believe, what should be the attitude of a court in viewing facts such as are presented in this case. It reads as follows:

“In approaching cases, such as this one, in which federal constitutional rights are asserted, it is incumbent on us to inquire not merely whether those rights have been denied in express terms, but also whether they have been denied in substance and effect. We must review independently both the legal issues and those factual matters with which they are commingled. ’ ’

The recent cases of Shelley v. Kraemer and Hurd v. Hodge, supra, and Trustees of Monroe Ave. Church of Christ v. Perkins, 334 U. S., 813, 92 L. Ed., —, 68 S. Ct., 1069, decided May 10, 1948, the Supreme Court of The United States, reversing the judgment of the Ohio Supreme Court in the case of Perkins v. Trustees of Monroe Ave. Church of Christ, 147 Ohio St., 537, 72 N. E. (2d), 97, all of which inhibit the judicial enforcement by state courts of covenants restricting the use or occupancy of real property for reasons of racial discrimination, indicate the extent to which our law has progressed in upholding the constitutional guaranties contained in the Fourteenth Amendment. In the case of Shelley v. Kraemer, supra, the court said in part:

“The historical context in which the Fourteenth Amendment became a part of the Constitution should not be forgotten. Whatever else the framers sought to achieve, it is clear that the matter of primary concern was the establishment of equality in the enjoyment of basic civil and political rights and the preservation of those rights from discriminatory action on the part of the states based on considerations of race or color. Seventy-five years ago this court announced that the provisions of the amendment are to be construed with this fundamental purpose in mind * *

In the instant case we are discussing issues with respect to the use of public property rather than private property. Here governmental discrimination is practiced. It is, therefore, clearly the duty of this court to prevent such discrimination if the issue is properly raised.

There remains for consideration only one further question and that is whether this appeal should be-dismissed on the ground that this matter is moot. This issue was not raised as a defense in the pleadings-either in this court or in the Common Pleas Court. Nor was this question discussed in the briefs of any of the parties filed on the merits of the cause although it was presented by the defendants in oral argument without the citation of any supporting authorities.. The record of the proceedings in this case shows that on February 9, prior to the final hearing on the merits,, the defendants herein filed a motion to dismiss this-appeal for the reason “(1) that the matter is now moot.”

In a memorandum in support of the motion to dismiss, the defendants did not cite any authorities but set forth the following statement:

“An examination of the pleadings in this case will show that the ordinance which the appellants herein are endeavoring to have declared void, expired Dec. 31, 1947, and the contract which the city entered into with the Veterans Swim Club has likewise expired. Therefore there is no relief that can be granted the appellants by any decision of this court.”

The Court of Appeals of the Seventh Appellate District decided the issue thus raised adversely to the claim of the defendants, in a journal entry reading in part as follows:

“This day this cause came on for hearing upon the motion and briefs of appellees to dismiss the appeal, and the briefs of appellants in opposition to said motion, and the court being fully advised in the premises finds that the appeal should not be dismissed on the ground that the matter is now moot * * * and that the motion to dismiss should be overruled.

“It is therefore ordered, adjudged and decreed that the motion to dismiss the appeal be and is hereby overruled. ’ ’

This same question was raised in the case of Lawrence v. Hancock, supra. The court in that case disposed of the question in the following language:

“The contention of the city that there is no pending controversy upon which to base a suit for a declaratory judgment is without merit. Plaintiff tried on two occasions in successive seasons to obtain' admission to the pool, and each time was denied that right solely because of his race. He could hardly have done more in the attempt to enforce his constitutional right. But, it is said, the season is now ended and the lease has expired; there is no indication that the City will again lease the pool, or that plaintiff will again be denied admission. In view of my conclusion that the refusal to admit him to the pool was governmental and not private action, there is no basis for this argument. The pool still exists, although temporarily closed. If it is opened to the public again, the plaintiff will be entitled to the rights he asserts. He has twice been denied these rights. It is the duty of this court on his complaint and the evidence in its support to declare what his rights are. Morris (Hibler, Intervener) v. Williams (C. C. A. 8, 1945), 149 F. (2d), 703.” (Emphasis ours.)

We think that the principles of law applied by the court to the facts in that case are equally applicable here and that the contention of the city in this case that the question' is now moot is without merit. It was stated in open court during this hearing without contradiction that the same Veterans Swim Club had again made inquiry of the city of Warren concerning the use of the swimming pool for the season of 1948. A determination of this suit and a .dismissal of the appeal on the ground that the question is now moot would undoubtedly lead once again to the same method and pattern of exclusion and the process of discrimination could again be set in motion. If another suit were commenced it is easily conceivable and quite probable that by the time it would again reach a reviewing court it would again be argued that the matter was moot for the same reasons and on the same grounds. We-think this is a fair and logical deduction from the-history of the facts of this case heretofore related as-shown by the record.

The persistent efforts of the plaintiff and the colored veterans of the world wars to secure membership in the swim club; the persistent refusals of their applications for admission despite their undoubted qualifications as war veterans; the efforts to induce plaintiffs to agree to a segregated use prior to the passage of this legislation; the comments of city officials as shown by the record; and the opinion of the city solicitor given to the mayor that the city could not under constitutional guaranties exclude plaintiffs under direct city operation, all support the charges of racial' discrimination alleged in the amended petition. In-reality the exclusion of the plaintiffs and those similarly affected constitutes governmental action under the guise of private management. This pool exists as public property even though temporarily closed. If the pool is again reopened either under a leasing arrangement or directly by the municipality, plaintiffs and those similarly situated have equal rights to its use.

In the case of Morris v. Williams, 149 F. (2d), 703, cited by the court in the case of Lawrence v. Hancock, supra, the court at page 709, in commenting upon a question involving racial discrimination, states as follows:

“We can not say from the facts stated whether the ‘policy, custom and usage’ complained of have been .abandoned or not; there is no assurance given in the statement of counsel that such usage and custom may not be resumed at any time, even though presently .abandoned. Under these circumstances this court can not consider the matter and things thus brought to our attention. Since the controversy remains it is the duty of the court to adjudicate the issues presented. They are not moot, and would not be moot even had the changes been made prior to the trial. United States v. Aluminum Co. of America, 2 Cir., 148 F. (2d), 416, 448; Southern Pac. Terminal Co. v. Interstate Commerce Commission, 219 U. S., 498, 515, 31 S. Ct., 279, 55 L. Ed., 310; Federal Trade Commission v. Goodyear Tire & Rubber Co., 304 U. S., 257, 260, 58 S. Ct., 863, 82 L. Ed., 1326.” (Emphasis added.)

“Actions or opinions are described as ‘moot’ when they are or have become fictitious, colorable, hypothetical, academic, dr dead. The distinguishing characteristic of such issues is that they involve no actual, genuine, live controversy, the decision of which can definitely affect existing legal relations.” Borchard, Declaratory Judgments (2 Ed.), 35.

In support of the text the author cites the following:

“A moot case is one which seeks to get a judgment ■on a pretended controversy, when in reality there is none, or a decision in advance about a right before it has been actually asserted and contested, or a judgment upon some matter which, when rendered, for any reason, cannot have any practical legal effect upon a then existing controversy.” Citing Ex parte Steele (D.C. Ala., 1908), 162 F., 694, 701.

Many other cases are cited by the author in support ■ of the text. In respect to the matter of construction, Borchard, Declaratory Judgments (2 Ed.), at page 295 says:

“With the greater use of the declaratory action which marks the twentieth century and with the ever-growing conviction of its practical utility in the solution of legal issues, the policy has changed from one of conservatism to liberality. The uniform act, like' most of the other state statutes, provides:

“ ‘This act is declared to be remedial; its purpose is to settle and to afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations; and is to be liberally construed and administered..'

“A federal court has recently expressed this policy in the following terms:

“ ‘The discretion to grant or refuse declaratory-relief should be liberally exercised, to effectuate the-purposes of the Declaratory Judgments Act and thereby afford relief from uncertainty and insecurity with respect to rights, status and other legal relations.' Citing Lehigh Coal & Nav. Co. v. Central Ry. of N. J., 33 F. Supp., 362, 365 (E. D. Pa., 1940.).

Section 12102-12, General Code, contained in the chapter on declaratory judgments, reads precisely the-same as the uniform act above quoted. It will be observed that the Ohio courts are likewise required to-administer and construe the act liberally with a view to afford relief from uncertainty and insecurity with respect to rights, status and other legal relations.

A comparatively recent case decided by the Supreme Court of the United States, namely, Porter, Price Admr., v. Lee, 328 U. S., 246, 90 L. Ed., 1199, 66 S. Ct., 1096, decided on May 27, 1946, is considered a leading case on whether a question is moot.

One Beever was sued for forcible detainer in the justice of the peace court of Kenton county, Kentucky, to allow the landlord to recover possession of his apartment. The price administrator filed in Federal District Court an injunction to order the respondent not to prosecute eviction proceedings against Beever or .any other tenant, and to restrain him from violating the rent regulations. The injunction was denied. While the case was in the process of appeal to the •Circuit Court of Appeals the state court evicted the tenant. The Circuit Court of Appeals held the question moot. Justice Black, speaking for the Supreme ■Court, said:

“We also think the Circuit Court of Appeals erred in holding that the case was moot * * *. Moreover, here the administrator sought to restrain not merely the eviction of Beever but also that of any other ten•ant of the íandlord as well as other acts in violation of the Regulation. * * * The isstie as to whether future violations should be enjoined was still before the Court ■and toas by no means moot.” (Emphasis added.)

Following this same line of reasoning is the case of Miller v. Incorporated Town of Milford, 224 Iowa, 753, 276 N. W., 826, paragraph 10 of the syllabus of which reads as follows:

“Fact that a municipal electric plant has been built does not preclude, as a moot question, citizens from bringing action to restrain its operation if the contract is void, since question is not moot if there remains anything on which a decision of the court can operate. ’ ’

In the case of Southern Pacific Terminal Co. v. Interstate Commerce Comm., 219 U. S., 498, 55 L. Ed., 310, 31 S. Ct., 279, cited in Morris v. Williams, supra, at page 709, it was held that a case is not moot where interests of a public character are asserted by the government under conditions that may be immediately repeated, merely because the particular order has ■expired.

As between the plaintiff's here and the city of Warren and its officials there was at the time of the trial in Common Pleas Court and there exists now, a justiciable controversy respecting rights, status and legal relations concerning the use by the citizens of Warren of the public property here under discussion. With respect to the lease of the Veterans Swim Club, the lease having expired, the amended petition against the defendant, Veterans Swim Club, should be dismissed. The plaintiffs, however, are entitled to a declaratory judgment against the city of Warren and the defendant public officials in order to settle and afford relief from the uncertainty and insecurity with respect to the rights, status and other legal relations of and between the plaintiffs and the city of Warren because of the racial discrimination which has been practiced.

In the instant case there are interests of a public character asserted against a municipal government under conditions that may be immediately repeated. As we have hereinbefore observed, a pattern of governmental discrimination with respect to public property has been set by the municipal authorities and the plaintiffs are entitled to a declaratory judgment so that there may not be a repetition of such conduct, so long as the swimming pool remains the property of' the city.

In conclusion we wish to emphasize that we are not here dealing with social questions involving race relationships or with the question of whether the city might suffer a loss because of the use of this pool by persons of the negro race. If this is the price that must be paid for constitutional guaranties, the price is indeed small enough. It is one thing to pay lip-service to the Constitution and another thing to abide-by its specific provisions. In this connection we might; inquire.from whence springs the great zeal to operate this particular recreational facility at a profit to the city? The operation of public parks, playgrounds and other recreational facilities are not ordinarily viewed as a source of pecuniary profit to the municipality. Cities ordinarily provide parks, playgrounds and other recreational facilities such as the swimming pool in this case, as a means of providing pleasure, recreation and cultural enjoyment for the benefit of all its citizens without respect to race or color and without hope or expectation of financial profit. Packard Park which adjoins this recreational facility is an example. In practically all of the cities of this country examples could be multiplied where city officials, past and present, have taken pride in furnishing such recreational facilities at the expense of the public either free or for a nominal charge to all and not for profit or pecuniary gain to the municipality.

Holding these views, an order may be entered in the form of a declaratory judgment to the effect that the refusal of the Veterans Swim Club to admit plaintiffs and other colored persons, to the swimming pool was an exercise of governmental power by the city of Warren and as such was in violation of plaintiffs’ rights under the Constitution of the United States. The order may further include an injunction against the defendants, the city of Warren, the duly elected, qualified and acting mayor and the duly appointed, qualified and acting public service and safety director of the city, restraining them from again denying the plaintiffs the right to use the swimming pool at any time when the pool is open for public use, under the same terms and conditions as are allowed to all other citizens of Warren and so long as such swimming pool remains the property of the city of Warren. The Veterans Swim Club having had no interest in the controversy since the expiration of its lease, the complaint will be dismissed as to the club and its officers.

Decree for plaintiffs.

Morgan, J., concurs.

Skeel, J.,

dissents, for the reason that the question of law presented by this appeal is now moot. The ordinance and lease under which a declaratory judgment and injunction are asked by plaintiffs expired prior to the case being filed for trial ele novo in the Court of Appeals. Hagerman, Dir., v. City of Dayton, 147 Ohio St., 313, 71 N. E. (2d), 246, 170 A. L. R., 199.

If the question were before us, I would concur thoroughly with the statement of the majority of this court that a city in providing recreational facilities for the people within its jurisdiction cannot discriminate on the basis of race or color. All citizens are entitled to equal protection under the law.

I am not convinced, however, that the record establishes bad faith on the part of the public officials of the city of W arren in renting the swimming pool to the Veterans Swim Club. It seems from the record that the pool had been operated at a loss for a<number of years and that the city, through its duly elected and qualified council concluded that there were not sufficient funds available to run the pool at city expense. If, in fact, the pool could not be used as a part of the city’s recreational facilities and the city council, acting within its sound discretion, determined to sell it or lease it, under the provisions of Section 3631, General Code, council would have the legal right to do so. The sale or lease of such facility or property must have been conducted in absolute good faith and such method cannot be used as a means of avoiding the constitutional obligations of the city to afford all citizens the equal protection under the law.

Hurd, P. J., Morgan and Skeel, JJ., of the Eighth Appellate District, sitting by designation in ■ the Seventh Appellate District.


source: Caselaw Access Project

author: Hunsicker, J.

license: Public Domain

text:
    Kinter, Appellant, v. Kinter, Appellee, et al.
    (No. 3983
    Decided April 6, 1949.)

      Messrs. Radley & Weaver, for appellant.

      Messrs. Bailey & Bailey, for appellee.
   Hunsicker, J.

In this appeal on questions of law, appellant, .Leah Louise Kinter, seeks to reverse a judgment sustaining a demurrer to her petition for damages, alleged to be the result of a conspiracy to give false testimony in appellant’s prior divorce action against the appellee herein, Clarence C. Kinter. No summons was ever served on the other alleged conspirator.

The appellee Kinter demurred to the petition on the ground that no cause of action was stated therein.

In the petition, claim is made that appellee and another conspired to give false testimony in appellant’s divorce action, which testimony was given by the other party, resulting in a divorce being granted appellee on the ground of adultery.

The deteiuninative question in this case is whether a petition which alleges a conspiracy to give false testimony in a prior divorce action between the parties herein, which claimed testimony was then given in such prior divorce action, states a cause of action for damages claimed to be the result of the testimony so given.

The general rule is that the giving of false testimony in a judicial proceeding does not give rise to a civil action for damages for injury resulting from the giving of false testimony. 58 American Jurisprudence, Witnesses, Section 886; 12 A. L. R., 1269; 81 A. L. R., 1126; 3 Restatement of the Law of Torts, Section 588.

In Ohio, the rule is declared to be that “language used in the ordinary course of judicial proceedings, whether by the judge, a party, counsel, jurors or witnesses, is protected if it be relevant to the matter under consideration, and the court have jurisdiction. ’ ’ Liles v. Gaster, 42 Ohio St., 631, 635.

This privilege accorded to a witness is founded upon public policy. The administration of justice would be impeded if actions, such as the one herein, were permitted to be brought against a witness by a party to the action, for damages, claimed to be the result of the testimony given.

If the statements allegedly made were pertinent to the issue, and by a reading of the petition such pertinency is obvious, then this action cannot be maintained.

“Where a witness in a judicial proceeding testifies to matters pertinent to the issue an action cannot be maintained against him by the party against whom such testimony is given on the ground that the testimony is false and was the cause of the judgment rendered against such party.” Bickerstaff v. Hingsley, 1 Ohio App., 91.

•We have examined all other claimed errors and find none prejudicial to the rights of the appellant.

The judgment is affirmed.

Judgment affirmed.

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


author: By the Court.

text:
    City of Columbus, Appellee, v. Charlton, Appellant.
    (No. 4246
    Decided January 31, 1949.)

      Mr. Richard W. Gordon, city attorney, and Mr. Walter W. Grelle, Jr., for appellee.

      Mr. Roscoe R. Walcutt,. for appellant.
   By the Court.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Franklin county, affirming a judgment of conviction, rendered by the Municipal Court of Columbus.

The defendant was charged with the reckless operation of a motor vehicle. The evidence on the material issues was in conflict. The case was a proper one for submission to the jury. The jury resolved the issues against the defendant. There was substantial evidence presented to support the verdict.

The charge as given was correct and not misleading. No specific request was made to charge further on what is a lawful use of the highway. If the charge as given did not properly cover the subject it was the duty of the defendant to bring such matter to the attention of the court, otherwise error does not lie.

We have carefully read the record and examined briefs of counsel. We cannot say that the verdict is against the manifest weight of the evidence, and the refusal of the court to direct a verdict for defendant was not error.

As we find no error in the record prejudicial to defendant, the judgment is affirmed.

Judgment affirmed.

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


author: Metcalf, P. J.

text:
    Duff, Admr., Appellee, v. Corn, Appellant.
    (No. 756
    Decided January 30, 1947.)

      Messrs. Peyton & Winters and Messrs. Pratt & €rowe, for appellee.

      Mr. A. J. Layne, for appellant.
   Metcalf, P. J.

The plaintiff, G. M. Duff, as administrator of the estate of Golden E. Estep, deceased, brought suit in the Court of Common Pleas of Lawrence county against the defendant, D. E. Corn, for -damages for wrongful death of his decedent, and, because of the nature of the errors complained of as hereinafter set out, we here quote the material allegations of the amended petition.

“Plaintiff says that the defendant at the time hereinafter mentioned was the owner and operator of a. nite club in Ironton, Ohio, then known as the ‘Ritzy Ray’ but now known as the ‘Riviera,’ wherein beer and intoxicating liquor were dispensed; that said establishment remained open for business late at night and large crowds congregated therein, and that the-defendant in furtherance of his plan to control the-patrons of his establishment and to prevent damage to his property employed to assist him one, Willard Mays, causing the said Willard Mays to be armed with a pistol and a blackjack and authorized said Willard Mays to use said weapons and such force as he deemed necessary in furtherance of defendant’s business.

“Plaintiff says that on Sunday, October 28, 1945, shortly after midnight his decedent went to the Ritzy Ray to get his wife, who was a patron in said establishment; that when the said Estep attempted to remove his wife from said establishment the said Willard Mays, agent of the defendant and acting within the scope of his employment, grabbed the said Estep and violently jerked him away from his wife and ordered him to leave the premises. Plaintiff says that in compliance with said order G-olden E. Estep, the decedent, walked away from said establishment across the parking lot and the adjoining sidewalk to Third street; that as said Estep started to cross Third street the said Willard Mays, agent and employee of the defendant, as aforesaid, wrongfully fired a pistol into the lower part of decedent’s back causing him to fall to the street.

“Whereupon said Mays came into the street, picked up the said Estep by the hair of the head, cursed him, shook him violently and kicked him in the body, thereby inflicting wounds and injuries which caused the death of the said Golden E. Estep on November 3, 1945, all to plaintiff’s damage in the sum of $50,000. Plaintiff says that all of said acts of said Willard Mays, above complained of, were done and performed in furtherance of said established plan of the defendant, D. E. Corn, to control the patrons of his establishment.”

The defendant filed an answer which in substance admits the killing and sets up three separate defenses: First, that Mays was at the time of the shooting of the decedent a duly appointed deputy sheriff and acting as such; second, that Mays was acting in self-defense ; and third, that the defendant was not at his place of business at the time the decedent was shot and did not know of the occurrence until sometime thereafter.

The reply of plaintiff admits that Mays was at the time a duly authorized deputy sheriff but denies that Mays was engaged in the discharge of official duties at the time he inflicted the fatal injuries.

On the issues so joined the trial was had before a jury, which resulted in a verdict in favor of the plaintiff in the sum of $7,500, from which verdict and judgment thereon the defendant appeals on questions of law.

There are four separate assignments of error in the following language:

“The trial court erred in refusing to render judgment for defendant upon his motions for judgment:

“1 — Upon the pleadings; and

“2 — Upon the pleadings and statement for plaintiff; and

“3 — Upon the pleadings and evidence, at close of plaintiff’s evidence when plaintiff rested and at close of all the evidence; and

“4 — Upon the pleadings and the special findings of the jury in answer to interrogatories, non obstante veredicto.”

It is the defendant’s contention as evidenced by those assignments of error that the question of whether Willard Mays, at the time of the matters complained of, was acting as a public officer in the discharge of a public duty or as the agent of the defendant or in the dual capacity of both was one of law and not of fact for the jury.

The record discloses that the defendant was the owner and operator of a night club in the city of Iron-ton, Ohio, where beer and liquors were dispensed and' served on the premises and where large crowds congregated, and that the defendant employed at least three men to keep order in and about the club, to prevent trouble and disturbances and to prevent minors from frequenting the place.

As one of those men, defendant employed Willard Mays on or about July 13, 1945; and the defendant caused Mays to be appointed a deputy sheriff in early August of the same year. The defendant signed Mays’ bond as such officer and retained him in his employ and continued to pay him $220 per month up to and including the time complained of in the amended petition.

The defendant testified under cross-examination:

“A. When he [meaning Mays]'first came to work I give him his orders, told him what to do.

“Q. Now then, what were those orders? A. Tho.se orders at that time were to — if any trouble developed, or anything like that, to take care of it the best he could, and to prevent minors being in the place.

“Q. And what else did you tell him to do? A. And to take care of anything that might be of our line, that wouldn’t be right in a place of business, anybody fussing, quarreling anything like that come up to eliminate it the best he could.”

Although the defendant continued to pay Mays’ salary at the same rate after he was appointed deputy sheriff, and although the record discloses that Mays’ duties did not change, the defendant maintains that after this appointment he gave Mays no orders.

At the time complained of in plaintiff’s amended petition, plaintiff’s decedent went to this night club in a taxi at or about midnight on Saturday night looking for his wife whom he found therein seated at a table with another girl. The evidence is in conflict as to just what occurred at this table but it is clear that the decedent attempted to have his wife leave the club and go home with him. The wife ran outside the building and around to another entrance in order to return to the club. The decedent crossed through another part of the club and met her as she approached this second entrance and again the testimony is conflicting as to what transpired but all agree that the decedent was remonstrating with his wife attempting to prevent her from re-entering the club. Mays, observing the decedent hurriedly coming through the club to this entrance, which entrance entered into a small vestibule where Mays was stationed, and further observing the decedent in his attempt to prevent his wife from re-entering, interceded. The evidence is clear that the decedent informed Mays that the lady he was trying to prevent from entering the club was decedent’s wife. As to what transpired at this time the wife testifies:

“Q. Now, what happened next when you met your husband there in that doorway? A. I had taken about two steps in the doorway and I met him and he started to shove me toward the door outside, and said I wasn’t going in there.

“Q. What next happened? A. About that time why ■someone grabbed him, I didn’t know who it was, .grabbed him and Golden said ‘That’s my wife,’ and he said ‘I don’t give a damn who it is,’ and that was the last I seen, he had Golden’s ’coat turned up over his head and I went on to the ladies rest room, that’s ■ all I seen of it.”

The testimony of Mays at that point is' in conflict with that of the wife of decedent in that he claims that the decedent was striking his wife and that he threw his wife through the, door. There is a further conflict -as to what took place following this incident, that is, whether the decedent had Mays down as a result of their tussle or scrap, but one thing is clear that the

■ decedent was on his way back to the taxi and had reached the vicinity of the curb of the street when Mays shot him in the back, from which wound the decedent died.

In determining the question as to whether Mays was ■acting as a public official in the discharge of a public ■duty when he shot the decedent or whether he was ■ acting as an employee and agent of the defendant and in the course of his employment or in the dual capacity of both such officer and agent, we are guided by certain • definite rules of law that are universal throughout the various jurisdictions of the United States, where this •question has been presented. In 18 Ruling Case Law, '786, Section 246, it is said:

“The weight of modern opinion * * * is that where ■private persons, with the consent of the state, employ its police officers to represent them, and to do special work for them in protecting and preserving their prop•erty and maintaining order on their premises, and such •officers are engaged in the performance of their duties to their employers, and are acting within the scope of their powers and duties, they become and are the servants .and employees of such private persons, and that for negligent and wanton acts committed by them in the line of their duty, and when engaged in the performance of such duties, to the injury of others, their masters or employers are liable.”

Whether these officers are at the time and place protecting and preserving the property of their employers- and maintaining order on their employers’ premises- and otherwise engaged in the performance of their duties to their employers within the scope of their employment is universally held to be a question of fact for the determination of the jury. See Sharp v. Erie Rd. Co., 184 N. Y., 100, 76 N. E., 923.

That rule is deviated from only in a case where it so-clearly appears that the officer was acting only in his-capacity as an officer or beyond the limits of any express or implied authority derived from or of any duty owed to the employer that no conclusion, other than that the officer was not acting in his capacity as-an employee, could reasonably be drawn. In such instance it becomes a question of law because there is no issue for the jury. 8 L. R. A., 846; 23 L. R. A. (N. S.), 289, note; Penna. Rd. Co. v. Kelly, 177 F., 189, 30 L. R. A. (N. S.), 481.

In 55 A. L. R., 1201, annotation, in quoting from Kusnir v. Pressed Steel Car Co. (D. C.), 201 F., 146,. it is stated:

‘‘Employers cannot escape responsibility for the-grossly negligent, wanton, and wilful acts of persons-employed by them, and representing them, and paid by them, by employing constables, marshals, sheriffs,, and peace officers of the state, provided such grossly negligent, wilful, wanton, and wrongful acts are done-by such representatives where and while acting within the general scope of the authority conferred on them. To establish a rule to the contrary would lead to the grossest acts of infamy and outrage, and destroy, as it ought, respect of government and courts. The state would not be liable for such acts, and if the employer — that is, the master, who makes the officer his representative for his private purposes — is not, because the wrongdoer is a police officer, such officer may perform the work he is employed to do in the most grossly careless, wanton, and wilful manner, fraught with great peril to others, and the injured party must look to the wrongdoer, usually of no pecuniary responsibility, and not the employer, who employed the wrongdoer to do the very acts complained of, but not in a wanton, wilful, and negligent manner, a mode fraught with peril to others. Of course, the employee must be acting in the line of his duty to his master, and within the general scope of his authority, and represent him in that matter.”

As to the question of whether the employee is acting in the line of his duty and within thé general scope of his authority, that same annotation reads, at page 1205:

“It may be stated as a general proposition that, where the capacity in which the person acts when occupying the dual position of public officer and private employee is uncertain, and dependent upon conflicting testimony and inconclusive facts and circumstances, the question whether he was at the time acting in the course of his employment for the private employer or whether he was acting in his public capacity as an officer is for the jury.”

The Supreme Court of Ohio, in line with other jurisdictions, 1ms established.the principle that such a question as that presented in the instant case as to whether Mays was acting in his official capacity and performing a public duty or acting in his capacity as an employee of the defendant and in the course of such employment is a question of fact to be determined by the jury under appropriate instructions. In Penna. Rd. Co. v. Deal, 116 Ohio St., 408, at page 414, 156 N. E., 502, the Supreme Court, quoted with approval 7 Labatt’s Master and Servant (2 Ed.), Section 2477, where the author, after discussing the liability of the master for' the torts of a servant employed as a public policeman, uses this language:

‘ ‘ In every instance, therefore, the liability of the defendant is a question of fact, to be determined by the jury under appropriate instructions.”

We agree with counsel for defendant that the Supreme Court of Ohio was not endeavoring to say that in every case this question is one of fact for the jury because as hereinabove shown the evidence may be so clear and conclusive as to make it a question of law, but we do maintain that so far as the situation presented in this appeal is concerned it brings it within the rule enunciated in the Deal case, supra.

In Republic Steel Corp. v. Sontag, 21 Ohio Law Abs., 358, the Court of Appeals of the Seventh Appellate District followed the same rule when it held in the third paragraph of the syllabus that:

“A deputy sheriff paid by a private corporation as a policeman to protect its plant, who exercised no official functions outside of the plant property, and whose immediate superior was a lieutenant in the plant police force, who with the knowledge of the lieutenant, in seeking to protect company property in the plant, assaulted the plaintiff in attempting to apprehend another man discovered stealing property, cannot as a matter of law, be said to have been acting in the capacity of a public official.’.’

Counsel for defendant urges that the case of N. Y., Chicago & St. Louis Rd. Co. v. Fieback, 87 Ohio St., 254, 100 N. E., 889, 43 L. R. A. (N. S.), 1164, is in point and controlling in the instant case. In that case the Supreme Court held that in situations similar to this the public official although employed by the defendant will be presumed to have been performing the acts- complained of in his capacity as such officer, until such presumption is overcome by sufficient evidence, and that such acts must be shown to be outside the public duties of the officer and be either authorized or ratified by the defendant.

We appreciate the law laid down in the FiebacJc case. We approach this appeal fully realizing that the presumption is that the officer was acting in his official capacity unless and until such presumption is overcome by ti\e preponderence of the evidence. The trial court recognized this principle as law and followed it and so instructed the jury. Where we disagree with counsel for defendant is that the facts in the instant case present an entirely different situation than those presented in the Fieback case. In the Fie-back .case the Supreme Court said on page 265 that, starting with a clear presumption the officer was acting officially and in line of his duty, it was incumbent upon the plaintiff to affirmatively show the officer was not so acting. And then this statement follows:

“In the present case, there is no testimony whatever that any person competent to act for the railroad company, authorized or directed Beattie to in any way interfere with the defendant in error; and the circumstances as well as the testimony of all the witnesses are consistent with Beattie’s own claim that he was acting as an officer of the law.” (Emphasis ours.)

That is not the situation in the instant case. There is ample evidence in the record to support the finding of the jury that Mays was not acting as a public official in the discharge of a public duty when he shot the decedent. It is true the testimony is conflicting but the jury had a right to believe those witnesses who testified that, so far as Mays interfered with the decedent in his endeavor to take his wife home, such interference was not only unofficial but outside the conduct of any public official. And then it must not be forgotten that the defendant himself testified as to the orders .he gave Mays at the time he employed him and, although both he and Mays claim no control was exerted after the appointment of Mays as a deputy sheriff, there is sufficient evidence to indicate that the relationship, the purpose of the employment of Mays, the •duties, and his services to the defendant never changed.

From what has been said it must clearly appear that this case resolves itself into a simple question. Was Mays acting as a public official in the discharge of a public duty, or as an employee and agent of the defendant and in the course of his employment, or in the dual capacity of both? It must further appear that the answer to this question is one of fact to be determined only by the jury from the evidence and the law given it by the court.

It seems conclusive to this court that the pleadings in the instant case presented a justiciable issue and that this was in nowise changed by the opening statement of counsel for plaintiff. The evidence in this case is conflicting but there is sufficient evidence to substantiate the verdict of the jury if believed by it; and, by the verdict, it is clearly shown that any presumption that Mays was acting only as a public officer performing a public duty was overcome by the preponderance of the evidence.

There remains the assignment that the defendant ■is entitled to a judgment notwithstanding the verdict. This assignment is predicated upon the answers given, by the jury to interrogatories.propounded by the defendant. Those given and answered read:

No. 1: “Did Willard Mays arrest Golden' E. Estep shortly before Estep was shot? Ans.: Yes.”

No. 4: “Why did Willard Mays shoot Golden E. Estep? Ans.: No apparent reason.”

No. 7.: “Why was Golden E. Estep at the Ritzy Ray the night he was shot? Ans.: Looking for his-wife.”

No. 8.: “If you find that Mays was performing a. duty for D. E. Corn when he shot Estep, state what duty he was then performing for Corn. Ans.: To quell-a disturbance.”

It is contended by defendant that in answering interrogatory number eight as above set out the jury specifically found that Mays in quelling a disturbance was acting in his official capacity as a public officer. It must not be overlooked that the defendant testified' that when he employed Mays it was one of the specific-duties of Mays to take care of trouble, to take care of anything that would not be right in the place of business, to eliminate fussing and quarreling, or in other-words to quell disturbances. It is true that both the defendant and Mays claim that no such instructions-were ever given after Mays was deputized as an officer but his duties never changed. The jury had been properly instructed and knew that the important question under those instructions was whether Mays was acting as a public officer or as an agent and employee of the defendant at the time of the shooting of the decedent. The fact that the jury found that Mays was quelling a disturbance does not bear out defendant’s contention that this is inconsistent with the verdict, but on the other hand, in the opinion of this court, substantiates the verdict rendered. The answer to this question .most be considered in the light of the duties Mays was hired to perform. The place of business of the defendant cannot be likened to those in the reported cases cited by counsel for the defendant wherein the property to be protected is tangible. This defendant was operating a place of business where crowds congregated, orderly and disorderly, where beer and intoxicating liquors were sold and consumed on the premises and where disturbances by the crowd or members thereof were likely to be nightly occurrences. •Can it be said that Mays was not protecting, conserving and furthering the property and business of the defendant when he quelled such disturbances? That was the very purpose of the employment of Mays. Both the good name and the preservation of the tangible property of the defendant, when operating such a business, must of necessity be under the protection of those who see to it that disturbances are not permitted. Therefore, it may well have been the conclusion of the jury that Mays in quelling whatever disturbance occurred between the decedent, and decedent’s wife was acting not exclusively in his public capacity as an officer but acting either solely as the agent of the defendant or jointly as a public officer and the agent of the defendant which in either event makes the defendant liable. This was one of the main ■questions for the jury to determine and the court correctly and fully so instructed the jury. Counsel for ■defendant has within the last few days cited the case ■of Masters v. N. Y. Cent. Rd. Co., 147 Ohio St., 293, 70 N. E. (2d), 898, contending that this case is applicable to the answer given to interrogatory number four. In the Masters case the Supreme Court holds that in the event the jury finds the defendant guilty of negligence, the jury is required, upon the proper interrogatory, to specify the act or acts of negligence, an d the failure or inability of the jury to find the existence of a claimed act of negligence in such interrogatory is equivalent to finding against the party having the burden to establish the negligence. Without a prolonged discussion of the Masters case a reading of it reveals that the answer given by the jury eliminated, all but two of the acts of negligence charged in the petition. This brought the Masters case within the consideration of whether the plaintiff was guilty of' contributory negligence directly contributing to the-cause of his injury or whether he assumed the risk, or both. A different situation exists by reason of the answer given to interrogatory number four in the instant case. Here the jury was asked “Why did Willard Mays shoot Golden E. Estep” and the jury answered “No apparent reason.” It seems to this court-that the only interpretation that can be placed upon that answer is that Mays had no reason to shoot the-decedent, which answer is not only in line with the allegations of the amended petition but is supported' by the evidence. It certainly eliminates once and for all the defendant’s defense that Mays was acting in-self-defense. There is no inconsistency in the answers given to the interrogatories with that of the-general verdict.

While not made an assignment of error, counsel for defendant in oral argument and through subsequent citations claims prejudicial error by reason of the-court refusing to give certain special instructions-proffered by the defendant before argument and in the giving of special instructions on behalf of the-plaintiff. While it is not incumbent upon this court to-pass upon any question not assigned as error, we have-carefully examined the special charges requested and refused on behalf of the defendant and those given on behalf of the plaintiff and we find no prejudicial error in the ruling of the court relative thereto. A casual reading of those special instructions offered by the defendant before argument and refused will reveal that they are not complete within themselves on the particular point of law attempted to be stressed, but that on the other hand they are more in the form of a suggestion that the court itself prepare and give certain special instructions before argument based upon various holdings of the Supreme Court. This, of course, the court should not have been called upon to do at that stage of the proceedings and the same were rightly rejected.

In this connection it may not he amiss to say that we have carefully read the general charge of the court and find it to be clear, correct and concise, covering each issue presented by the pleadings and the evidence. So, it cannot be said that the jury was not in a position to determine by its verdict the issues joined, which under the law it was bound to do in the instant case. There is no question raised as to the amount of the verdict.

The issues presented in this case being solely for the jury, the evidence being conflicting on each material point to such a degree that it cannot be said that reasonable minds must reach the same conclusion, and there being sufficient creditable testimony to support the verdict of the jury, neither the trial court on the motions offered nor this court on review, under such circumstances, can disturb . the verdict and judgment.

Finding no error prejudicial to the defendant the judgment, must be affirmed.

Judgment affirmed.

Gillen and McCurdy, JJ., concur.


author: Doyle, J.

text:
    Painter, Appellant, v. The Twinsburg Banking Co., Appellee.
    (No. 3982
    Decided April 4, 1949.)

      Mr. William N. Shane and Mr. Ray J. McGowan, for appellant.

      Messrs. Snyder, Seagrave, Roudebush & Adrion and Messrs. Foust é Rolden, for appellee.
   Doyle, J.

Josephine Painter and The Twinsburg Banking Company entered into an agreement, later consummated, in which the banking company promised to finance Mrs. Painter’s purchase of real estate, consisting of land and several buildings, by the making of a loan of $4,500, secured by a note, and a mortgage on the property.

It is claimed that the bank, acting through its president, agreed to have the buildings insured against fire loss, and that the failure and neglect of the bank to secure a coverage resulted in loss and damages as a consequence of fire.

At the conclusion of all the evidence, the court directed a verdict for the defendant bank, and entered its judgment thereon. The appeal is from this order. It is claimed that the developed facts were sufficient to require the submission of the question of liability to the jury, and the court’s failure so to do constituted error prejudicial to the rights of the plaintiff.

The record of the trial reveals evidence which tends to prove that in April, 1945, upon the suggestion of the bank officials, the plaintiff made an application for a loan to finance the purchase of the real estate heretofore mentioned; that several days later the loan was approved and the plaintiff was notified by the defendant to appear and sign a note and a mortgage in the amount of the loan.

The plaintiff and her husband, pursuant to the instruction, executed the instruments, and, in the course of this transaction, the plaintiff inquired of the bank whether she should secure fire insurance on the property. The bank official replied that insurance should not be obtained until the property had been transferred to her. Thereupon the executed note and mortgage were left with the bank, and the contemplated loan was held in abeyance until the title to the property in the name of the grantor was shown to be clear.

Later, in June of 1945, plaintiff was notified by the bank that the title was clear and that she should appear at the bank to complete the transaction. This she did, and, during the negotiations, the president of the bank brought up the subject of fire insurance; and, after discussion, it was determined that $3,500 was the proper amount to place on the building which later burned. Mr. Roxbury, the bank president, then said: “Do you want us to handle this insurance for you through our bank?” He was told to do so; following which, discussion was had of the manner of premium payments. The bank official then said that he would obtain the policy, and, in connection with the premium payments, he would “hold it on your mortgage or you could write in and authorize me to take the money out of your bank account.”

Several days later, the deed to the property was recorded, and within two minutes thereof the mortgage was likewise placed on record; and the negotiations with respect to financing and title came to a close.

Later on, in January, 1946, the building in question burned to the ground. It was then discovered that fire insurance had not been obtained. There is testimony to the effect that after the fire the bank president, in answer to questions about the insurance, said: ‘ ‘ Evidently, when I went.away on my vacation, my secretary failed to follow my instructions.” At another place in the record is found this claimed statement of the president: “I am sorry I muffed up on taking out insurance, but it is just your hard luck.”

The officers of the defendant company denied any agreement to secure insurance, and denied making the statements set forth above.

The mortgage deed executed by the plaintiff contained a provision that the “grantors agree to keep the building's on said premises at all times until payment of said note, * * * insured against loss or damage by fire, in the sum of at least $4,500 and under policies approved by and deposited with the grantee and which shall provide for the payment of any loss under the same to the grantee or its assigns as its or their interest may appear,” and “that if such insurance be not so procured the grantee may procure the same and pay the premiums therefor” and have a lien “by virtue of this mortgage on said premises” to secure such premium payments by the mortgagee.

We do not question the general rule that parol evidence of extrinsic facts is inadmissible to vary or contradict a written contract. Nor do we determine that the contract under consideration comes within any of the rules which exempt certain factual situations from the rigor of the doctrine. 9 Ohio Jurisprudence, Contracts, Section 399.

Under the written provisions of the mortgage, it was the duty of the mortgagor to insure the mortgaged property, not only for her own benefit, but likewise for the benefit of the mortgagee, who, in the event of a fire, would be entitled to a share of the payment to apply on the principal of the note and mortgage. There was, however, no obligation of the mortgagor to personally secure the insurance. She could contract with another to care for this business detail. And, if the ■contract was based upon a consideration, she could hold the agent responsible for damages resulting from his negligence or breach of contract. Such verbal agreement, in which the mortgagor employs the mortgagee as her agent, is not contradictory to or in derogation of the written agreement in the mortgage.

The question usually presented for determination in cases of this character, in which the mortgagee is claimed to have undertaken an agency, is whether the agreement to insure is merely gratuitous or whether it is based upon consideration. And, in deciding this ■question of consideration, it is proper to find that "there is sufficient consideration for the promise to insure if the execution and delivery of the mortgage, the agreement to procure insurance, the disbursement of the money loaned, and the recording of the deed and mortgage, is one continuous business transaction. If it is, then the giving of the note and the mortgage, and the borrowing of the money with promise to pay interest, presents sufficient consideration to support a contract with a mortgagee which makes such mortgagee the agent of the mortgagor to procure the fire insurance.

If, however, the promise of a mortgagee to insure the mortgaged premises is made after the completion of the business transaction and was not a part of it, then such agreement would lack consideration, unless there is shown to be consideration of a kind other than that mentioned above. See 41 A. L. R., 1284; 130 A. L. R., 600.

It is the conclusion of the members of this court that there is sufficient evidence in the record for submission of the various disputed facts to the jury, with proper instructions on the law, and for this reason the rendering of judgment for. the defendant as a matter of law was error prejudicial to the rights of the plaintiff. The judgment will be reversed and the cause remanded.

Judgment reversed.

Stevens, P. J., and Hunsicker, J., concur.