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

text:
    Helvich, Appellee, v. The George A. Rutherford Co., Appellant.

      (No. 22794
    Decided September 21, 1953.)

      Messrs. Endress d Endress, for appellee.

      Messrs. Crossen d Chamberlin, for appellant.
   Skeel, J.

This appeal comes to this court on questions of law from a judgment entered on the verdict of a jury for the plaintiff in the Common Pleas Court of Cuyahoga County. The plaintiff’s action sounds in negligence. He was a watchman employed by Ostendorf Morris, a building management organization which was employed, by The Estates Holding Company to manage a six-story building at 1017 Euclid Avenue in Cleveland. The Estates Holding Company leased a storeroom in the most easterly part of the first floor which room included a balcony to the Eastman Kodak Stores, Inc. Prior to this lease to Eastman Kodak Stores, Inc., this storeroom was divided and had been occupied by two tenants, Dr. Scholl Foot Comfort Shop and Contour Chairs, Inc., contour chairs occupying the most easterly part of the divided room.

After Eastman Kodak Stores, Inc., leased the storeroom, they entered into a contract with The Geo. A. Rutherford Company to remodel the leased premises into a single storeroom. The Contour Chairs, Inc., moved out on Saturday, November 5, 1950, the shoe company having previously vacated their part of the storeroom. On Sunday, November 6th, the defendant, Rutherford, barricaded the entire front of the storeroom on Euclid Avenue, placing a small door in the barricade. The back door was also barricaded and both entrances were secured with a padlock, the keys being placed in the possession of Rutherford employees. The actual work of reconstructing and remodeling the storeroom began on November 7th.

The duties of the plaintiff were those of a watchman. He ran the elevator from four o ’clock in the afternoon until the employees working on one or two of the upper floors had left the building, took care of emptying paper baskets on one of the floors and, in a general way, watched over the premises until twelve midnight. On Saturday, his tour of duty began at twelve o’clock noon. He testified that for a part of the time his work day was extended to one o ’clock a. m.

On Friday, December 1, 1950, the plaintiff testified that in the evening around 8:00 p. m. he discovered a leaking pipe in the basement near the rear of the last passenger elevator shaft. He said the water was ‘ ‘spraying” out of the pipe. He testified that he wrote a note to his boss telling him of the leak. He did nothing further about it until he returned to duty at noon on Saturday, December 2nd. He found a note from his boss about the leak which he gave to the plumber who was then on the premises doing work for Ostendorf Morris in parts of the building other than that rented to the Kodak Company. The plumber, upon receiving the note from the plaintiff (there is conflict in the evidence as to the time he got the note, the plumber testifying that it was at 8:00 a. m. when he came to work, the plaintiff saying it was shortly after 12:00 o’clock noon) went to the basement to check the difficulty. He determined that the leak was on the first floor and after trying unsuccessfully to get into the storeroom because of the entrances being locked, he asked the plaintiff if he knew how to get in. Whereupon the plaintiff took the plumber and his helper to a door leading from the public stairway (located in the rear of the building) to the balcony. On the second day of December, the partition between the two storerooms had been removed and, in furtherance of its contract to remodel the storeroom for occupancy by the Eastman Kodak Stores Company, Rutherford had removed a part of the railing and some part of the outer edge of the floor of the balcony. The part removed was in that part of the storeroom formerly occupied by Contour Chairs Company, that is, on the east side of the room and between two supporting pillars. Directly to the east of the most easterly of these pillars, was a stairway leading from the ground floor to the balcony. The reason that the plaintiff took the plumbers to this balcony door was because it was not provided with a lock and it was therefore the only means he had of getting in.

When the plaintiff pulled the door open'and stepped onto the balcony, it was “pitch dark” except for the light coming through the door through which plaintiff entered reflecting in a westerly direction. The plaintiff testified that there was a light switch on the most easterly of the two pillars above referred to, which was some sixty feet south of the door. The plaintiff had a flashlight which he turned on and started toward the place where he thought the light switch was located. Instead of using the flashlight to light his way, he threw the light along the east wall and walked forward without being able to see where he was going. He did not know or then discover that the railing had been removed and walked off the end of the balcony falling to the floor below whereby he was injured.

From a judgment entered for the plaintiff, the defendant claims the following errors:

1. The trial court committed error prejudicial to the right of the defendant, The George A. Rutherford Company in submitting to the jury the question of whether or not the plaintiff was acting in an emergency.

2. In failing to direct a verdict for the defendant because of the plaintiff’s failure to establish any negligence on the part of said defendant.

3. In failing to hold as a matter of law that the plaintiff was himself guilty of negligence which was a proximate cause of the injuries complained of.

The first claim of error is well taken. The plaintiff’s action is based on the claim that when he discovered water spraying from a pipe in the basement he was confronted with an emergency in which he was compelled to act at once to prevent waste which would be caused by water running into the basement and therefore, in going into that part of the building under lease to the Kodak Company in an effort to find the leak, he was a frequenter and entitled to be provided with a safe place to work as provided by law.

Whether or not the plaintiff was acting in an emergency is ordinarily a question of fact, but where the facts are not in dispute, it becomes a question of law for the court.

An emergency means an unforeseen occurence or combination of circumstances which calls for immediate action leaving no time for deliberation.

The rule is well defined by the tenth headnote in the Northeastern Reporter in the case of Hedgecock v. Orlosky, 220 Ind., 390, 44 N. E. (2d), 93 (Supreme Court of Ind. 1942) where it is provided:

“Before the doctrine of ‘sudden peril’ applies, it must appear that the peril was caused by the negligence of the defendant, the apprehension of peril, from the standpoint of the injured person, must have been reasonable, and the appearance of danger must have been so imminent as to leave no time for deliberation.’’’ (Emphasis added.)

In 65 Corpus Juris Secundum, page 735, in Section 123, it is said:

“In order to relieve a person from the consequences of his own acts on the ground that they were'done suddenly and under impending danger, there must be either a real danger or the circumstances must be such as might create apprehension of danger in the mind of an ordinary prudent person, and the appearance of danger must have been imminent, leaving no time for deliberation. If there is time for him by the exercise of reasonable care to withdraw to, or to remain in, a place of safety he may not recover if he does not do so.”

See, also, 38 American Jurisprudence, 686, Section 41, and 38 American Jurisprudence, 874, Section 194.

The court granted some of the plaintiff’s requests to charge before argument and charged the jury as to the definition of a frequenter as provided by Section 871-13, subsection 5, General Code, and the duty of an employer to protect the safety of his employees as defined by Sections 871-13, subsection 11, and 871-15, General Code. The sections referred to are a part of the chapter creating the Industrial Commission and providing a safety code for those engaged in industrial activities. The court also gave plaintiff’s request to charge No. 6 which provided that by the laws of the state of Ohio published by the Industrial Commission of Ohio and the department of Industrial Relations in Bulletin 202, the defendant was required to comply with the following rule:

“All work places, stairways, corridors and passageways where workmen must frequent, pass or use in performance of their work, or, in the passage to and from their work shall be kept reasonably lighted, except as otherwise provided by law.”

Nowhere in the court’s charges as requested by plaintiff, or, in its general charge are the exceptions enumerated or explained so that the giving of such charge without explaining what is meant by the words “except as otherwise provided by law,” was prejudicial. The court also charged as requested by the plaintiff before argument,, the substance of Sections 264 and 265 of Bulletin 202, issued by the Industrial Commission, providing in part that platforms, runways, ramps, scaffolds and similar equipment, which are ten feet or more from the ground or over water, deep holes, etc. shall be provided with guard rails not less than 36 inches or more than 46 inches from the floor of the described places. These sections are a part of the construction safety code and have absolutely no application to permanent parts of a building either while under construction or reconstruction, and refer to contractors’ equipment. This is made to appear by the fact that these sections are now a part of Chapter 8 of Bulletin 202 as re-enacted by the commission, September 30, 1952, effective January 1, 1953, without a single change in content and are now known as Sections 186 and 187, being styled “Scaffolds, Ramps, Runways, — . ” These sections in Bulletin 202 have no application to the facts in the case now before us and their inclusion in the charge constitutes error prejudicial to the rights of the defendant.

The court, in concluding the special instructions before argument given at plaintiff’s request, instructed the jury that if the plaintiff was acting in an emergency not created by his own negligence, and he failed to act reasonably or as a prudent person would be likely to act when confronted by a similar circumstance, then he would be negligent, but, if, under the circumstances, he, when confronted with an emergency, if such there was, acted reasonably as would a prudent person under like circumstances, then, he could not be charged with contributory negligence.

The court in its general charge specifically included all the special instructions and further charged that at common law the owner of property was entitled to protect it against waste or damage by persons in possession under lease or otherwise. The court said: “Such owner need not sit idly by and permit the destruction of or serious damage to such property if he has knowledge thereof, and can, by reasonable intervention, prevent waste and possible damage.

“If the situation discovered is such as to constitute an emergency requiring immediate repairs or precaution, the landlord or his servant would be authorized to forthwith institute such repairs or precautionary moves.

‘ ‘ On the other hand, if the situation discovered is one not requiring immediate repairs, as an emergency, the owner would-be required to make such repairs during the time prescribed by the lease between the parties

Paragraph 15 of the lease (introduced in evidence) in part provides: “The lessor shall further have the right to enter the demised premises at all reasonable hours for the purpose of making repairs * * * necessary for the safety * * * of said building * *

The court then instructed the jury that it was its duty to determine the status of the plaintiff when he went upon the balcony the afternoon of December 2, 1950 and that his status would depend upon whether or not an emergency existed. If it did, he would be a frequenter and, under such circumstances, the defendant would owe him the duty of exercising ordinary care for his safety, including the duties imposed upon employers by the statutes and rules of the Industrial Commission as explained in the special instruction before argument and hereinabove referred to. But, if the plaintiff failed to show by the preponderance of the evidence that he was acting under an emergency, then he would have no right to enter the Kodak store except during reasonable hours of the working day and to do otherwise would make him a trespasser. The court then charged the jury that the only duty which the defendant would owe plaintiff as a trespasser would be not to wilfully or wantonly cause him injury and, there being no evidence to support a wanton or wilful injury, if the plaintiff was a trespasser, the jury’s verdict should be for the defendant.

In considering the defendant’s duty toward the plaintiff in the event the jury should find him to have been a frequenter, the court said:

“Whether or not the defendant exercised ordinary care with respect to such duty is a question of law which the jury will be required to determine.” (Emphasis added.)

Such a statement is hard to explain in a charge so carefully prepared as this. one. But that is the way the record is certified to us. Such a statment is clearly erroneous.

It is evident from the foregoing portions of the charge that the jury was instructed to determine from the evidence whether or not the plaintiff was faced with an emergency requiring immediate action for two reasons. First, to determine the status of the plaintiff when he entered the balcony and, second, to , judge whether his conduct on the balcony squared with ordinary care under the circumstances.

Except as provided for by the terms of the tenancy, a landlord ordinarily has no right to go upon the demised property.. One general exception to the rule as thus stated is to prevent waste. In 51 Corpus Juris Secundum, page 991, Section 318, it is provided: “Subject to some qualifications, the landlord has no right of entry and the lease does not contain a reservation of right. * * * According to some authorities however, the landlord may, without incurring liability as a trespasser, enter upon the demised premises during the term to demand the payment of rent when due, to prevent waste * * Flanders, Admr., v. New Hampshire Savings Bank, 90 N. H., 285, 7 A. (2d), 233; 32 American Jurisprudence, page 185, Section 195; 10 A. L. R., 711; Forsythe v. Shryack-Thom Grocery Co., 283 Mo., 49, 223 S. W., 39.

This brings us to a consideration of the evidence as it has to do with the questions of whether waste was being committed and whether, if so, it presented an emergency requiring immediate action whereby (as the court charged the jury) he would, in going upon the balcony, be a frequenter and not a trespasser.

In considering this part of the case all doubts as to the weight and credibility of the evidence must be re-resolved in favor of the plaintiff, but this does not mean that the court must accept the impossible as trué. The plaintiff testified that about 8:00 p. m. of December 1st, he found a water pipe in the basement near the rear passenger elevator shaft “spraying” water so much so that the water on the basement floor was 3 or 4 inches deep for a radius of 20 feet. How this could be so on a flat basement floor is hard to understand. The accuracy of this testimony is also challenged by the fact that directly thereafter, he testified that no water had run into the elevator pit only 10 feet away. His corroborating witness, the plumber, said, “There was quite a lot of water down there on the floor so I should say it would spread over an area of some 20 feet each way.” And again he said, “There was a valve on there that wasn’t functioning right; you couldn’t turn it off tight at all, no matter how tight you turned it the water kept on running. ’ ’

“Q. Was is running out there? A. Well, it was nothing that would raise a big amount of water, but a continuous little stream running all the time.”

The evidence is undisputed that the plaintiff first noticed the leak Friday night, December 1st, at about 8:00 p. m. He says he put a bucket and a wheel barrow under it and both were full and had to be emptied be-for quitting time at 1:00 a. m. All he did about it was to write a note to his boss. He did not return to work until 12:00 noon on Saturday, December 2nd. He found an answer to his note which he gave to the plumber and it was not until an hour later that he tried to show the plumber how to get to the first floor in the Kodak storeroom through the balcony, all other doors being locked. The place where the water was leaking was on the first floor in the premises of the Kodak Company and the place in the basement where the water was falling was also in the possession of the Kodak Company under the lease. It should be noted also that the “boss” did not contact the plumber who was on the job at 8:00 a. m. that morning. All he did was to leave an answer to the plaintiff’s note, knowing that the plaintiff would not be there until noon that day. This is conclusive evidence that he was not concerned about waste and did not consider the situation an emergency. There is, therefore, no evidence of an emergency. One who finds a leak at 8:00 p. m. on December 1st, and does nothing to help stop it until 1:00 p. m. the next day certainly was not hard pressed for time, nor much concerned about any supposed waste. We are unable to find any evidence of any waste to the building, or its contents, or that the plaintiff was upon the premises to deal with an emergency.

For the foregoing reasons, giving the plaintiff’s evidence its most favorable construction in his favor, he was, as a matter of law, a licensee when he went upon the balcony and the defendant’s duty in protecting him from harm was not to' wilfully cause him injury. It being admitted that there was no evidence to sup1 port a wilful injury, the court should have directed a verdict. The defendant’s first claim of error is therefore well taken.

The claim of error that the plaintiff was himself guilty of negligence as a matter of law must also be sustained. Here again, there is no conflict in the evidenee. We begin with the fact, as above determined, that the plaintiff was not acting under the stress of an emergency. When he opened the door from the rear stairway onto the balcony, except for the light coming through that door, the room on the balcony was “pitch dark. ’ ’ It was so dark that the plumber who was with the plaintiff, sent his helper for a “big flashlight. ’’ The plaintiff, however, did not wait the helper’s return. He took out his own flashlight, but did not use it to light his way. He held it so that the light would play on the wall to his left and not the floor in front of him. Then, in total darkness, he walked forward 60 feet without being able to see or to discover that the defendant, in furtherance of its contract, had removed the railing at the point of the balcony toward which plaintiff was walking. In addition to these facts, the plaintiff also testified that he knew the defendant was remodeling the storeroom, that he had not been in the room after the work had been begun and knew nothing of the extent and character of the changes being made.

The plaintiff’s evidence, therefore, is that he walked forward in total darkness giving himself no help from a flashlight which he had in his hand in a place the condition of which he was unfamiliar with and had no right to assume was the same as when he had previously been there. Certainly such conduct at least raises an inference of negligence which the plaintiff in no way attempted to dispel by other evidence.

In the case of Huyink v. Hart Publications, Inc., 212 Minn., 87, 2 N. W. (2d), 552, the plaintiff, a meter reader, entered defendant’s basement where he had gone for the first timefo read the water meter. He did not turn on the lights, but instead moved about the basement, which was dark, in search of the water meter, using a flashlight to illuminate the walls, but not the floor where he was walking and as he thus proceeded fell into a furnace pit. It was held that the plaintiff was guilty of contributory negligence as a matter of law. See 163 A. L. R., annotation page 587 at page 598. The first paragraph of the syllabus of the ease reported in 212 Minn., 87, provides:

“1. Where plaintiff, to read a water'meter, entered a dark basement with which he was unfamiliar and which he could have lighted, but did not, and moved about in search of the water meter, using a flashlight to illuminate the walls, but not the floor, as he proceeded, in the course of which he fell into a furnace pit, he was guilty of contributory negligence as a matter of law.”

In the case of McKinley v. Niederst, 118 Ohio St., 334, 160 N. E., 850, the plaintiff walked out of her apartment on the second floor of defendant’s apartment building in “total darkness” and in trying to reach for the stair post walked into the stairway and fell to her injury. The court said in the second paragraph of the syllabus:

‘ ‘ 2. The testimony of a plaintiff, tenant in an apartment house housing several tenants, with halls and stairways in common, that she passed out of her apartment into a hallway in total darkness, with full knowledge of the existence of a stairway leading downward only a few steps from the door of her apartment, and proceeded forward in the direction of such stairway seeking to descend the same and fell to her injury, raises an inference of negligence on her part, which, in the absence of any evidence tending to refute such inference, justifies the trial court in directing a verdict in defendant’s favor. ’ ’

Also, in the case of Flury v. Central Publishing House, 118 Ohio St., 154, 160 N. E., 679, where the plaintiff was attempting to repair the heating system and in following a heating pipe opened the door to an elevator shaft which as he looked in was in total darkness. He stepped in, falling to the bottom of the shaft and was injured. The court said in the third paragraph of the syllabus:

“3. The testimony of a plaintiff invitee, in an action for negligence, that from a lighted room he opened a closed metal-covered sliding door, was confronted with total darkness beyond the door, that he then stepped into such total darkness, to his injury, without any knowledge, information or investigation as to what such darkness might conceal, raises an inference of negligence on his part which, in the absence of any evidence tending to refute such inference, will require a directed verdict for the defendant.”

The law of the foregoing Ohio cases was reviewed and approved in the case of Johnson v. Citizens National Bank of Norwalk, 152 Ohio St., 477, 90 N. E. (2d), 145.

Upon the authority of the foregoing cases and in the light of the facts as testified to by the plaintiff and his witnesses, we hold that the plaintiff’s evidence raises an inference of negligence on his part which he in no way attempterd to dispel or counterbalance and, for that reason, the court should have directed a verdict for the defendant.

The third claim of error deals with the question of whether or not the defendant was guilty of negligence in failing to place a temporary barricade in front of the place on the balcony where the railing had been removed before leaving the job at the end of the day’s work. Here again, the evidence is not in dispute. The storeroom was closed to the public. Its entrances were barricaded and no one was “invited to enter” except those engaged in remodeling the room. The defendant was the general contractor employed by the Kodak Company to do the remodeling. One of the requirements of the defendant’s contract was to remove the railing in question and extend the balcony. This work was in progress to the extent of removing the railing at the close of work on December 1st. When a property is under construction, there are, of necessity, hazards created as the work progresses which are only eliminated by its completion. Anybody who goes upon such property with knowledge that it is under construction must meet with and guard himself against such natural and necessarily created dangers. A contractor is not compelled, in the exercise of ordinary care, to guard against such natural dangers after the work day is over and the property is' closed for ordinary purposes to business visitors, licensees or frequenters.

The right of the landlord or his servants to go upon the premises to inspect or make repairs as provided by the lease, must be exercised at reasonable times of the business day except in case of emergency. Here, as we have held, no emergency was shown.

We conclude, therefore, that there is no evidence of negligence shown on the part of the defendant, The Geo. A. Rutherford Company. The judgment of the Common Pleas Court is therefore reversed and final judgment entered for the defendant-appellant.

Judgment reversed.

Kovachy, J., concurs.

Hurd, P. J.

(Dissenting as to final judgment for defendant.) 1 dissent from the holding of the majority that there is no evidence of negligence on the part of defendant and that plaintiff was himself guilty of negligence as a matter of law, and that therefore the trial court erred in failing to direct a verdict for defendant-appellant, Rutherford. In my opinion the record shows questions of fact for determination of the jury in respect to such issues under proper instruction of the court.

I concur with the majority in that there were errors of law prejudicial to the defendant, as I think the court erred in holding the defendant subject to certain specific safety requirements relating to building and construction work contained in Bulletin 202 issued by the Industrial Commission of Ohio, both in the charges before argument and in the general charge for the reason that said specific requirements are not applicable to the facts and circumstances of this case.

In my opinion the cause should be reversed only and remanded for further proceedings according to law.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    The State, ex rel. Stoeckle, v. Jones, Supervisor, et al.
    (No. 7761
    Decided July 6, 1953.)

      Mr. Frank H. Richter and Mr. R. E,. Simmonds, Jr., for relator.

      Mr. John L. Undercoffer, Messrs. Peck, Shaffer & Williams and Mr. Judson AUgood, for respondents.
   Per Curiam.

This is an action in mandamus originating in this court seeking a writ requiring the respondent Jones to issue a permit authorizing the relator to connect his premises, at No. 318 Jackson Street, in the Village of Loveland, with the public sewer, and as an incident thereto, for an injunction restraining the respondent Fritz from taking any action against relator to enforce the penal ordinance for failure to tap, pending the final determination of this action.

The case is submitted upon the petition, the answer, and a stipulation of facts.

After the state of Ohio had joined with six other states located in the Ohio River watershed in agreement for concerted action to reduce and, if possible, eliminate the pollution of the water of the Ohio River, and after the Ohio General Assembly had enacted a law forbidding municipalities from discharging sewage into tributaries of the Ohio River, the Village of Loveland, which is located on the Little Miami River, a tributary of the Ohio River, proceeded to arrange for the construction of a sewer system and disposal plant to enable it to discontinue discharging its sewage into the Little Miami. To this end, as the village had no sewer system, the council passed a resolution on October 16, 1951, declaring it necessary to construct sanitary sewers in a large number of its streets and providing that $175,000 of the cost should be assessed by percentage of the tax value, as shown by the tax duplicate, upon all the lots and lands in the village abounding and abutting thereon or serviced thereby. Whether this description included all the taxable property is not clear.

The relator’s property, located at 318 Jackson Street, was unimproved and was assessed for taxation purposes at $70. The rate of the assessment for the construction of this sewer system, based on the duplicate of August 1951 was $11,691 per hundred dollars, in accordance with which there was assessed against relator’s lot the sum of $8.19, which he paid on September 11, 1952.

The cost of the sewer system and sewage disposal plant was $575,000, so that after crediting the special assessment there remained $400,000 to be financed. This was accomplished by the issuance of mortgage revenue bonds under Section 12 of Article XVIII of the Constitution.

On July 8, 1952, the Village of Loveland passed an ordinance to regulate the establishment of connections with the sewer system and to provide for inspection thereof. It required an application for the permit to be accompanied by a fee of $5. It contained also penal provisions for the enforcement of observance of its provisions, and by another ordinance there were outlawed all other methods of disposal of sewage by those whose properties were accessible to the public sewer system.

On December 16, 1952, the Village pf Loveland passed still another ordinance, which was entitled: “An ordinance providing for tap-in charges for the sanitary sewer system.” In its preamble, it was recited that certain portions of the sanitary sewer system were being placed in operation and that it was deemed necessary to provide tap-in charges for property owners whose property was not listed as improved on the tax duplicate at the time or was not included in the assessment. It was then ordained that a tap-in charge of $300 should be required of owners whose property had been improved after October 16, 1951, and a like tap-in charge from owners whose property had in fact been improved before October 16, 1951, but which improvement had not been included in the tax duplicate valuation at the time. There was an omnibus provision also, requiring all owners who for any reason had not been assessed for the construction of the sewer to pay a tap-in charge of $250, and, finally, the ordinance provided that owners of property outside of Loveland not assessed for the construction of the sewers should pay a tap-in charge of $450.

We deem it worthy of calling attention to the recital in the preamble of this ordinance that a portion of the sewer system was about to be placed in operation. We infer that no part had been used by any one at the time.

All the revenue derived from the operation of the sewage disposal plant, the special assessment against the property owners, and the charges against those subject to the “tap-in” ordinance, was appropriated to the payment of the. $400,000 mortgage revenue bonds and the bonds issued in anticipation of the collection of the special assessment.

Sometime after October 16,1951, and before July 15, 1952, the plaintiff constructed a dwelling upon the lot at 318'Jackson Street, and on that date the county auditor reappraised the lot at $90, and appraised the building at $3,620, making a total value of $3,710. Thereafter, it was placed on the tax duplicate at that valuation.

On May 20, 1953, the relator presented an application in due form to the respondent Jones for a permit to connect 318 Jackson Street with the public sewer system, and tendered $5 to pay the fee required by the ordinance of July 8, 1952. The respondent declined to issue the permit, insisting that he could issue the permit only upon the relator complying with the ordinance of December 16, 1952, by the payment of $300. This action was instituted as a result of respondent Jones’ refusal to issue the permit.

At the trial there was a general discussion, prompted by questions from the bench, as to what governmental power was exercised by the Village of Loveland in the enactment of these ordinances. Further study has made it clear to us that the charge of $5 for making the connection can be justified under either the police or taxing power. A charge of $5 for issuing the permit and inspecting the connection to see that the law has been complied with conld not be regarded as an excessive license fee. The impositions under the other ordinances are clearly exercises of the taxing power. It is not necessary to be more specific and determine whether they are assessments based on special benefits, a charge for services rendered, or an excise tax. In any event they would be within the power delegated to the municipality.

The Village of Loveland made no contract with the relator to maintain the status quo. It was engaged in legislating and was free to repeal, amend, or supplement any of these ordinances within its delegated powers, provided only that its actions were confined within constitutional limits.

The principal contention, in fact the only contention, of the xelator is that these ordinances in their terms and in their operation are unequal and discriminatory, and, therefore, deny to the relator his constitutional right to the equal protection of the law. In support of his contention, the relator points to the ordinance of December 16, 1952, imposing a charge upon those who, for one reason or another, had not contributed anything or less than what the village regarded as their fair share to the construction of the sewer system. In passing upon this contention, we must bear in mind that this ordinance was designed, patently, to apply only to exceptional situations.

In determinang whether the charges imposed by this ordinance are so unequal or discriminatory as to violate constitutional provisions, we can eliminate from our consideration the provision for charging owners of property outside Loveland $450 for the privilege of connecting with the Loveland sewer system. That provision stands apart and is justified by Loveland’s complete liberty to permit or deny the use of its sewer system to those outside its borders. There is no doubt that a reasonable differential in rates to those outside would be justified should Loveland conclude, as it manifestly has, to offer its utility to those beyond its border. See, State, ex rel. Indian Hill Acres, Inc., v. Kellogg, City Mgr., 149 Ohio St., 461, 79 N. E. (2d), 319; and Louisville & Jefferson County Metropolitan Sewer District v. Seagrams & Sons, Inc., 207 Ky., 413, 211 S. W. (2d), 122, 4 A. L. R. (2d), 588.

This leaves two classes to be considered; owners who improved their property after the effective date of the assessing ordinance, and owners whose property, for any reason, had not been assessed. For the privilege of ‘ ‘ tapping-in, ’ ’ the former are required to pay $300, and the latter $250.

There is no evidence that to require owners whose property was unimproved at the time to pay $300 on connecting with the sewer would operate to their disadvantage _ and in favor of those who had been assessed on improved real estate. Indeed, the illustration given by counsel sIioavs just the contrary. According to this illustration, if relator’s property had been improved at the time of the assessment, as it was a.t the time he applied for the permit, the use of the sewer would have cost him an assessment of $435.84, plus the permit fee of $5, making a total of $440.84; whereas, under the ordinances as actually passed, he will get the use of the sewer for $300, plus $8.19, plus $5, making a total of $313.19. In other words, it will cost him $137.65 less than the owner of a lot similarly improved at the time of the assessment. It would seem, therefore, that the relator has no ground for complaint of discrimination to his detriment.

As we understand the law on the subject of uniformity required by constitutional mandate, it does not prohibit all classification. It does prohibit arbitrary and unreasonable classification. If, however, a class is established based upon some actual similarity,- and the classification based thereon has some, reasonable or logical relation to the object to be accomplished, such classification, for the purpose of legislation, is within the power of the law-making body, and if the purpose to be accomplished is a just object of government, the legislation is unassailable. We think the instant classification meets both requirements. Of course, owners of unimproved land have an actual similarity, if all within the class are similarly treated. That it is a just object of government to seek uniformity in bearing the burden of government, we do not doubt.

In Hermann v. State, ex rel. Cooper, 54 Ohio St., 506, 43 N. E., 990, 32 L. R. A., 734, the facts were that the City of Cincinnati had constructed a system of sewers, and to pay a part of the cost had assessed the abutting property at $2 per front foot. Some of the property owners successfully contested the assessment. Thereupon, the city adopted a rule requiring those property owners to pay their share of the cost, not .exceeding $2 per front foot, before they would be granted a permit to connect their property with the sewer system.

The court held the rule to be valid and said at page 508:

“The rule in question was adopted and properly conditioned to require that those who had not paid assessments should, when desiring to use the sewer, accept an equal burden with those who had. We cannot say that the rule is unreasonable.”

Certainly, Hermann v. State, ex rel. Cooper, is sufficient answer to the suggestion that the Village of Loveland having made an assessment on the tax valuation basis, authorized by Section 3812, G-eneral Code, to pay a part of the cost, could not have recourse to other methods of raising revenue for the same purpose. In the Hermann case, the court sustained recourse to- an excise tax to supplement a special assessment. Neither in that case nor in this one are we confronted with the problem resulting from the commingling of two methods of special assessments.

Counsel seek to distinguish the Hermann case from the case.at bar by pointing out that an invalid assessment was levied in that case against the relator, whereas, in the case at bar, the assessment that was levied against the relator was valid and was paid. We consider that distinction as unimportant. In both cases an inequality resulted from the application of the assessing ordinance and the municipality resorted to its power to impose an excise tax to correct the inequality. A reading of the opinio'n makes it clear that the only concern of the court was the determination of whether the rule adopted was reasonable, and upon determining that, the court sustained it.

The distinction between an assessment for the construction of h sewer and a charge for its use is clearly pointed out in the case of Carson v. Sewerage Commrs. of Brockton, 175 Mass., 242, 243, 244, 56 N. E., 1, 48 L. R. A., 277, affirmed in 182 U. S., 398, 45 L. Ed., 1151, 21 S. Ct., 860, where it is stated:

“No one denies that it was a special benefit to the petitioner to have a sewer built in front of bis land. That benefit was the probability that the sewer would be available for use in the future. But the city, by building it and receiving a part of the cost from the petitioner, did not impliedly bind itself or the general taxes that the sewer should be maintained forever and that the petitioner should be at liberty to use it free of further expense. If building the sewer was a special benefit, keeping the sewer in condition for use by such further expenditure as was necessary was a further special benefit to such as used it.”

With reference to the charge of $250 to the hypothetical owners of fugitive property, there is no showing that any such property existed, and, for aught that appears, there is nothing upon which the provision can operate. The presence of an ineffective provision, even though discriminatory in terms would not invalidate the other provisions of the ordinance. .By this we do not mean to intimate that we regard placing such owners in a separate class as being unreasonable.

The rule on this subject of the meaning of the constitutional provisions requiring uniformity of operation of laws is so clearly stated in 16 Corpus Juris Secundum, 995, that we feel justified in quoting extensively from it at pages 997 and 998:

“Discrimination alone, irrespective of its basis or effect, is not the test of denial of equal protection of the laws by a statute. A discrimination which is merely technical and in no sense substantial or unjust does not render a statute void. Also, the constitutional requirment does not prevent a state or municipality from adjusting its legislation to differences in situations and making a discrimination or distinction in its legislation in respect of things that are different, provided the discrimination or distinction has a reasonable foundation or rational basis and is not palpably, purely, and entirely arbitrary in the legislative sense, that is, outside of the wide discretion which the legislative body may exercise. The courts will not lightly assume legislative arbitrariness, nor will they draw the dividing line between rational and arbitrary legislation with a view of remote possibilities, but instead they will refuse to set aside a statutory discrimination as a denial of equal protection of the laws if any state of facts reasonably may be conceived to justify it.”

Viewing this municipal legislation either collectively or separately, we fail to find any part beyond the power of the municipality.

For these reasons, our finding is in favor of the respondents.

The writ is denied.

Writ denied.

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


author: Guernsey, J.

text:
    Kemp, Appellant, v. Industrial Commission of Ohio, Appellee.

      (No. 944
    Decided August 18, 1953.)

      Messrs. Wetherill & Schwemmer, for appellant.

      Mr. C. William O’Neill, attorney general, and Mr. James F. DeLeone, for appellee.
   Guernsey, J.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Logan County, in an action wherein the appellant, Harley Kemp, was plaintiff, and the appellee, the Industrial Commission of Ohio, was defendant.

The plaintiff, Harley Kemp, filed his claim with the defendant, the Industrial Commission of Ohio, for compensation from the State Insurance Fund, under the provisions of the Workmen’s Compensation Law of Ohio. Upon a rehearing of plaintiff’s application for such compensation, on the 10th day of February 1951 the Industrial Commission made the following order:

“That the commission find from proof of record that claimant suffered a period of disability by exposure to fumes sustained January 8, 1948, resulting in congestion of the lungs with simple pneumonia and severe bronchitis from which he is now recovered and that the claim be allowed on rehearing as to such disability and compensation and medical expenses be paid as approved.

“It is further ordered that the claim be disallowed on rehearing as to the enlarged heart from which claimant suffers for the reason that such. disability is not the result of an injury sustained in the course of and arising out of employment. ’ ’

This order was a final order denying plaintiff the right to further participate in the State Insurance Fund under the Workmen’s Compensation Act of Ohio, on the ground that plaintiff’s heart condition was not due to an injury sustained on the date alleged in the application filed by plaintiff with the commission.

The plaintiff duly perfected his appeal from said order to the Court of Common Pleas of Logan County, the county in which plaintiff resides and where the injury is claimed to have occurred.

The cause was thereafter duly tried in said court to a jury upon the issue of plaintiff’s right to participate further in the State Insurance Fund under the Workmen’s Compensation Law, by reason of the condition of enlargement of plaintiff’s heart, and the jury returned a verdict upon such issue in favor of the Industrial Commission of Ohio and against the plaintiff. Thereafter, judgment was duly rendered on the verdict denying plaintiff the right to participate further in said fund.

That is the judgment from which this appeal is taken.

Plaintiff, appellant herein, has assigned error in the following particulars, to wit:

‘ ‘ 1. Said court erred in overruling the motion of appellant for a new trial of said cause, to which the appellant at the time duly objected.

“2. Said court erred in the admission of evidence offered by the appellee, to which appellant excepted.

“3. The verdict of the jury is against the manifest weight of the evidence.

“4. Irregularity in the proceedings of the court and prevailing party by which appellant was prevented from having a fair trial.

“5. There are other errors manifest upon the record prejudicial to the substantial rights of appellant. ’ ’

Assignments of error Nos. 2, 3, 4 and 5 will be first considered, and then assignment of error No. 1 will be considered.

2. Under his second assignment of error the plaintiff contends that the court erred in permitting Dr. George W. Kress, an expert medical witness called by the Industrial Commission, to answer a hypothetical question submitted to him by the commission, partially predicated on a statement that the physician who had been plaintiff’s family doctor and who attended him during the period of the injuries complained of by him (Dr. McCracken of Bellefontaine), had, when called upon to attend plaintiff upon the day following the injury of which plaintiff complained, found, among other things, that plaintiff was suffering from an enlarged heart, the plaintiff contending that there was no evidence in the record tending to prove such assumed fact.

We have carefully read all the testimony of Dr. McCracken, both upon direct examination and upon cross-examination, and find that by reason of the failure to ask more specific questions, the testimony of Dr. McCracken is ambiguous as to the time when he found that plaintiff was suffering from an enlarged heart, in that from the doctor’s testimony an inference may be drawn that such finding was made on the doctor’s examination on the day following plaintiff’s injury, and such testimony is equally susceptible of an inference that the doctor made such finding that plaintiff was suffering from an enlarged heart from an examination at a later date.

In this situation, defendant was warranted in assuming in its hypothetical question the inference of fact which it considered most favorable to its contention, and the court did not err in admitting such question over the objection of plaintiff.

To this hypothetical question, Dr. Kress replied, in effect, that plaintiff’s enlarged heart was not caused by the injury on the day preceding Dr. McCracken’s first examination, and, in answer to a subsequent question, testified in effect that the enlarged condition of plaintiff’s heart was of such a character that irrespective of the time subsequent to plaintiff’s injury such condition was found to exist, it was not attributable to the injury complained of by plaintiff.

If any error had existed in the admission of the hypothetical question of which complaint is made, such error was cured by the question and answer thereto last above mentioned.

3. There is competent, credible and substantial evidence of record tending to prove all the facts essential to sustain the verdict of the jury and the verdict is not against the manifest weight of the evidence.

4. Under assignment of error No. 4, the plaintiff contends that defendant’s attorney was guilty of misconduct in arguing to the jury that Dr. McCracken, on his examination of the plaintiff on the day following the injury complained of, found that plaintiff, among other things, was suffering from an enlarged heart and that the court was guilty of misconduct in permitting defendant’s attorney to proceed with such argument without admonishing the jury that the evidence before them did not tend to prove such fact.

As stated above, the testimony of Dr. McCracken was ambiguous and the defendant was warranted in arguing to the jury the inference deducible therefrom which he considered most favorable to the Industrial Commission, and the court was not guilty of misconduct in not ordering defendant’s attorney to desist from such argument or in not admonishing the jury that there was no evidence upon which the defendant could base such argument.

This assignment is therefore without merit.

5. The plaintiff does not specify or argue in his brief any claimed error under this assignment and the court, in the exercise of its statutory prerogative, will not consider this assignment.

1. All the errors assigned in the motion for new trial in this cause are comprehended in the assignments of error above discussed and are found to be without merit. From this it follows that the court did not err in overruling the motion for a new trial.

Finding no error in any of the particulars specified and argued in plaintiff’s brief, the judgment of the Common Pleas Court is affirmed at costs of plaintiff, and the cause is remanded for execution.

Judgment affirmed.

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


author: Miller, J.

text:
    Smith, d. b. a. Terminal Hotel, Appellant, v. Board of Liquor Control et al., Appellees.

      (No. 4987
    Decided February 8, 1954.)

      Mr. Simon L. Leis, for appellant.

      Mr. C. William O’Neill, attorney general, Mr. Kiehner Johnson and Mr. Ralph N. Mahaffey, for appellees.
   Miller, J.

This is an appeal on questions of law from a judgment of the Common Pleas Court, affirming an order of the Board of Liquor Control, which revoked the D-l and D-3 liquor permits of Ernest P. Smith, the appellant herein. The revocation was based upon a finding by the board that the permit holder or his employee knowingly and willfully allowed improper conduct and immoral activities on the permit premises.

The record reveals that the appellant is the operator of a three-story hotel, consisting of eight rooms, known as the Terminal Hotel and that it is located near the Union Terminal in Cincinnati, Ohio. In addition to the guest rooms located on the second and third floors of the premises, there is a bar, kitchen and lunchroom on the first floor. On or about 9:30 p. m. on August 2, 1952, police officers of the city of Cincinnati visited the premises and found three of the rooms occupied by unmarried couples who were engaging in immoral acts. Appellant does not question such activities of the hotel guests, but urges that the record does not support the conclusion that the appellant had any knowledge that such guests, when registering at the hotel, intended to indulge in any improper conduct. Knowledge, either actual or constructive, is one of the essential elements which must be proven in order to sustain the charge. Sata v. Board of Liquor Control, 88 Ohio App., 88, 94 N. E. (2d), 464. There is nothing in the record to indicate that the appellant or any of his agents had actual knowledge of such intended misconduct. The only remaining question, therefore, is whether knowledge of said activities by the hotel guests may be inferred from all the surrounding facts and circumstances. It is our conclusion that the record does not disclose any facts which could form the basis for such an inference. It reveals that all the parties were properly registered as man and wife, and that none of them was known to the agent in charge of the premises, excepting one of the men whom the agent had seen before, but lacked any further information concerning him save that he tended bar somewhere. There was some evidence to the effect that the hotel register, which was not offered in evidence, showed in several places that some of the rooms had been checked into as many as two or three times in one day, but it does not disclose the number of persons who used the rooms, and clearly the acts charged could not have been committed by single occupants. It appears that many of the patrons of the hotel are waiters, dining room porters and railroad workers who check into the hotel sometimes for a few hours to clean up and rest between train times, and that even some of the travelers come into the hotel for just a few hours to have breakfast or lunch and rest. The permit premises are in close proximity to the railroad station and constitute a convenient place as a stopover for the railroad workers and passengers.

The appellee cites the case of Wittenberg v. Board of Liquor Control, 52 Ohio Law Abs., 65, 80 N. B. (2d), 711, a case decided by this court, but which we think is distinguishable on, the facts from the case at bar. An examination of the cited case discloses that from the facts the court found that the permit holder should have known that the premises were to be used for immoral purposes.

On page 73, Judge Hornbeck said:

“The facts appearing here, in our judgment, amply supported the conclusion that the licensee had reasonable cause to know that the place which he was operating was to be and was used for lewdness and the licensed premises was a disorderly place which should have been known by the appellant, even though the specific purposes and acts admitted by the occupants of the rooms may not have been shown to have been directly brought to his attention. ’ ’

In our case, we think the evidence is insufficient to warrant the conclusion that the permit holder had constructive knowledge of any misconduct to be performed upon the premises.

The order is, therefore, not supported by the degree of proof required by Section 154-73, General Code. The judgment is reversed and the cause is remanded.

Judgment reversed.

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


author: Wiseman, P. J.

text:
    Economy Savings & Loan Co., Appellee, v. Lindsey, Appellant, et al.
    (No. 5015
    Decided February 23, 1954.)

      Mr. Elwood L. Carpenter, for appellee.

      Mr. Isadore L. Margulis, for appellant.
   Wiseman, P. J.

This is an appeal on questions of law from a judgment of the Municipal Court of Columbus in an action for the foreclosure of a chattel mortgage.

The defendant, Lindsey, appellant herein, assigns as error that the court erred in overruling defendant’s motion for judgment on the pleadings; in permitting plaintiff to file a reply; that the judgment is contrary to law; and that the evidence did not show the real party in interest.

The first and third assignments of error raise the principal question in the case: Did the plaintiff waive its right to foreclose the chattel mortgage and was its lien extinguished by taking a judgment on the note in a prior suit and levying execution on the same chattels as were covered by the mortgage?

In the suit on the note, á levy was made but no order of sale was issued. Appellant contends that by taking judgment on the note and levying execution, the plaintiff extinguished its lien, and cites in support, Albright v. Meredith, 58 Ohio St., 194, 50 N. E., 719; Bolinger v. National Cash Register Co., 52 Ohio App., 217, 3 N. E. (2d), 640; and State, ex rel. Armstrong, v. Lacy, 18 C. C., 379, 10 C. D., 111. These cases have no application to the issue raised in the instant case.

The applicable principle of law was stated in Green v. Bass, 83 Ohio St., 378, 94 N. E., 742, Ann. Cas. 1912A, 828, although the factual situation was slightly different. The syllabus of the Green case is as follows: “The owner of a senior chattel mortgage does not, by recovering a judgment on the note which it secures and causing execution to be levied on the chattels mortgaged, waive the priority of his lien. (Frost v. Shaw, 3 Ohio St., 270, approved and followed.) ”

On page 384, the court said:

“That the note became merged in the judgment which was a higher form of the same debt is clear enough upon both principle and authority. But it is not made to appear how it could affect the lien of the mortgage, which, according to the established view in this state, is only a security for the debt. Why should not that which was a security before the recovery of judgment be a security after it? Plaintiff did not, in any way, change his position in consequence of the recovery of that judgment, nor was he, in any way, affected by it. No reason appears why the case should not be governed by the general rule that a security continues until the discharge of the obligation.”

In 17 Ohio Jurisprudence, 1147, Section 777, the text reads in part:

“That a chattel mortgagee may, instead of pursuing his remedy to foreclose the chattel mortgage, bring an action on the secured debt, reduce such debt to judgment and levy execution on the mortgaged property has been recognized by a number of Ohio cases.”

Section 778, ibid., reads in part:

“It is a general rule that an independent action on the mortgage debt by a chattel mortgagee, and the levy of execution on the property secured, do not waive the mortgage lien, or the priority of such lien, although the debt may have become merged in the judgment.”

See, also, 2 Jones on Chattel Mortgages and Conditional Sales (Bowers Ed.), 533, Section 758.

We conclude that the former action did not operate to extinguish the chattel mortgage lien.

Appellant contends the court erred by permitting plaintiff to file a reply out of rule. This matter rests within the sound discretion of the trial court. There is some question whether a reply was necessary in view of the answer. Plaintiff was not required to controvert a conclusion of law. The reply as it appears in the record is sworn to and regular.

The fourth assignment of error was disposed of by stipulation agreed to by counsel.

We find no assignment of error well made.

Judgment affirmed.

Miller and Hornbeck, JJ., concur.


author: Skeel, J.

text:
    Burlovic et al., Appellants, v. Farmer, Admr., et al., Appellees.
    (No. 22858
    Decided November 9, 1953.)

      Messrs. Wallach do DeVine and Mr. D. F. Sammon, for appellants.

      Mr. M. S. Farmer, for appellees.
   Skeel, J.

This appeal comes to this court on questions of law from a judgment for the defendant in the Common Pleas Court of Cuyahoga County. The action is one seeking a declaratory judgment as to the validity and enforceability of a separation agreement between the plaintiffs’ son, now deceased, and the defendant Martha Burlovic. At the conclusion of the opening statements in which the pleadings were incorporated and the filing of stipulations of fact, the defendant moved for judgment, which motion was granted.

The allegations of the pétition are that Joseph T. Burlovic, now deceased, and the defendant Martha Burlovic were married in Alabama July 12, 1950; that, at the time of said marriage, Martha Burlovic had no intention of living with the deceased as man and wife, but employed that means of escaping parental control; that upon arriving in Cleveland after the marriage she took up separate living quarters and supported herself by her own efforts; and that by reason of defendant’s conduct in refusing to physically consummate said marriage, the deceased, who was the son of these plaintiffs, and the defendant Martha Burlovic entered into a separation agreement which reads as follows:

“This agreement made and entered into this 19th day of July, 1950, by and between Joseph Burlovic, first party and Martha Burlovic, second party, witnesseth: That, whereas, unhappy differences have arisen between the said two parties and they have agreed to live separate and apart from each other henceforth, and,

“Whereas, they are desirous of adjusting their marital rights,

“Now, therefore, it is hereby agreed that the party of the first part, and the second party shall immediately separate and shall release each other from all claims of any nature by reason of or arising out of said marital relationship, and the second party shall receive no alimony or support of whatever nature, and will not demand any rights accruing to her by reason of said marriage relationship. ’ ’

It is alleged further that Joseph T. Burlovic died August 2, 1950, two weeks after the execution of the separation agreement, and that letters of administration were, upon application to the Probate Court of Cuyahoga County, issued to the defendant M. S. Farmer on September 22, 1950. Appraisers were appointed as provided by law, who allowed the defendant Martha Burlovic, as the surviving spouse of the deceased, an award of $500 as her statutory exemption out of the assets of her husband’s estate, and $750 for her year’s support. The petition alleges further that, although both defendants, to wit, Martha Burlovic and M. S. Farmer, administrator, who is also Martha Burlovic’s attorney, knew of the separation agreement, they “failed to disclose the same to the Probate Court, or any other court. ’ ’

The plaintiffs’ petition concludes by alleging that the plaintiffs are respectively the father and mother of the deceased and (with the possible exception of Martha Burlovic) his sole surviving heirs; that they are informed that in contravention of the separation agreement the said Martha Burlovic claims a share in their son’s estate, including the part found exempt from administration, and the year’s allowance and unless restrained, the administrator will turn said sum of $500 over to her, together with any money left after paying funeral expenses and the costs of administration.

The prayer of the petition seeks a declaratory judgment holding that the separation agreement is valid, that the defendant Martha Burlovic be barred from any right as a surviving spouse and that the administrator be restrained from paying any money to her, but if it has already done so, that plaintiffs be granted a judgment against both defendants for any sums so paid.

The defendants filed separate answers. The administrator’s answer admits the marriage in Alabama; the death of Joseph T. Bnrlovie; that he is the qualified and acting administrator of said deceased’s estate; that $500 was set off by the appraisers as exempt from administration; that Martha Burlovic was granted $750 for her year’s allowance as surviving spouse, and admits that there was a separation agreement of which both defendants had full knowledge, and that no action was commenced within six months from the appointment of the administrator to set aside such agreement. This defendant admits further that plaintiffs are the father and mother of the deceased, and, except for the widow’s rights as surviving spouse, they are the heirs of said deceased. This defendant then denies any improper motives of the defendant Martha Burlovic or her failure to consummate the marital relation with the deceased, and alleges that said allegations are irrelevant and immaterial.

For his second defense, he alleges that defendant Martha Burlovic was a minor sixteen years of age when she was married and when she signed the separation agreement, and that she now disaffirms and revokes such agreement, wherefore the cause is prematurely brought.

Five other affirmative defenses are pleaded by this defendant wherein it is alleged that the Common Pleas Court is without jurisdiction to hear this case, for the reason that the Probate Court obtained jurisdiction of the proceeding and having appointed appraisers and approved their inventory and appraisal, without exceptions being taken by the plaintiffs, the claims of these plaintiffs are now judicially concluded; that the plaintiffs’ lawyers having taken part in the appointment of the appraisers who set out the property exempt from administration, and the year’s allowance to the widow, and not having filed exceptions thereto, the plaintiffs are thereby estopped from asserting the claims set forth in plaintiffs’ petition; that the plaintiffs are guilty of laches in bringing this action after the approval of the inventory and appraisal by the Probate Court; and that Section 2131.03, Revised Code (Section 10512-3, General Code), does not apply to a minor.

The defendant Martha Bnrlovic, through her guardian for the suit, sets forth the same defenses as are pleaded by the administrator and also alleges that she was induced to sign said separation agreement for the purpose of appeasing her deceased husband’s parents; that a permanent separation was not intended by the parties; and that she acted on her husband’s advice and would not have signed such agreement had she fully understood it would constitute a waiver of all her rights growing out of the marriage.

The plaintiffs filed replies, denying the affirmative allegations of both answers and such other claims inconsistent with the allegations of plaintiffs’ petition.

Upon trial, the parties entered into stipulations of fact which were filed with the papers in the case, providing :

“1. M. S. Farmer is the duly qualified administrator of the estate of Joseph T. Bnrlovic, deceased;

“2. That said deceased and Martha Bnrlovic (now known as Martha Seymour) were married at Dothan, Alabama, July 12, 1950, at which time Martha Burlovic was sixteen years of age and at the time of trial was still a minor.

‘ ‘ 3. That the deceased died August 2, 1950, at which time he was 23 years of age.

“4. That on September 22, 1950, letters of administration were granted by the Probate Court of Cuyahoga County to M. S, Farmer.

“5. That the appraisers set off to the widow, Martha Burlovic, the sum of $500 as exempt from administration, and a year’s allowance of $750.

‘ ‘ 6. That no action was taken within six months after the administrator was appointed to set aside the separation agreement.

“7. The separation agreement attached to plaintiffs’ petition is a true copy thereof.

“8. That both the administrator and Martha Burlovic knew of the separation agreement but did not disclose its existence to the Probate Court.

“9. That the plaintiffs are respectively the father and mother of the deceased and, with the possible exception of Martha Burlovic, are the sole heirs of the deceased.

“10. That plaintiffs’ attorney suggested the names of the appraisers to the court.

“11. That the inventory and appraisal were filed with the court by the appraisers on January 5, 1951, and was approved by the court on January 31, 1951, without objection or exception of the plaintiffs as to the amounts set off to Martha Burlovic.

“12. That the pleadings of the parties should be considered as their opening statements.”

From the judgment entered for the defendants upon the pleadings, opening statements and stipulations of fact, the plaintiffs claim that the court committed error prejudicial to their rights in entering such judgment for the defendants.

Generally speaking, the contracts of an infant are' not void but voidable. Lemmon v. Beeman, 45 Ohio St., 505, 15 N. E., 476; Curtiss v. McDougal, 26 Ohio St., 66. And the right to avoid contractual obligations is exclusively within the power of the infant or one who has the legal right to act in his stead. There are some contracts, however, that are binding upon him.

In the case of Mestetzko v. Elf Motor Co., 119 Ohio St., 575, 165 N. E., 93, the third paragraph of the syllabus provides:

“Contracts of an infant except those authorised by law, those entered into in the performance of a legal duty and for the purchase of necessities are voidable at the election of the infant and may be disaffirmed by him at any time before or within.a reasonable time after reaching his majority.” (Emphasis added.)

Contracts which are enforceable against an infant are gradually being expanded by legislative enactment.

Section 1903.08, Revised Code: Recognizances signed by minors, enforceable.

Section 3911.08, Revised Code: Insurance contracted for by minor fifteen years of age or older cannot be avoided by reason of minority alone.

Section 3109.02, Revised Code: Purchase of home and mortgaging same by veteran minor.

Section 3101.01, Revised Code: Who may contract matrimony. This section provides that females 16 years of age and males 18 years of age may join (contract) in marriage. (Minors must obtain consent. )

Under Section 3101.01, Revised Code, once the relationship of husband and wife is lawfully created, the contract of marriage is good and cannot be terminated except by divorce. In this case the deceased and the defendant Martha Burlovic were married in Alabama. Without proof of the law of Alabama, dealing with the right of infants to marry, it will be assumed that the law of that state is the same as is now in force in the state of Ohio. Mendelson v. Mendelson, 123 Ohio St., 11, 173 N. E., 615; 20 American Jurisprudence, 70, Evidence, Section 47.

In all events, the validity of the marriage is not chailenged by the parties to this action. It follows that by Section 3103.06, Revised Code, the deceased and the defendant Martha Burlovic were authorized by law to enter into a separation agreement like the one here under consideration.

Section 3103.06, Revised Code (Section 8002-6, General Code), provides:

“A husband and wife cannot, by any contract with each other, alter their legal relations, except that they may agree to an immediate separation and make provisions for the support of either of them and their children during the separation. ’ ’

The subject of the contract here under consideration is not against public policy in Ohio, as is true in some jurisdictions, by reason of the fact that the right to enter into a separation agreement is provided for by Section 3103.06, Revised Code, supra.

In the case of Hoagland v. Hoagland, 113 Ohio St., 228, 148 N. E., 585, the Supreme Court said:

“1. Where husband and wife, in contemplation of separation, enter into mutual covenants for release of dowfc- and distributive share, and as part consideration therefor the husband pays the wife the sum of $5,000, which she accepts, and separation occurs pursuant thereto, such contract, if made in accordance with the rules controlling actions of persons occupying confidential relations, is lawfully permitted under Section 8000, General Code.

“2. Sections 7999 and 8000, General Code, when construed together, permit a husband and wife, contemplating such separation, to enter into an engagement mutually releasing each other’s right to dower and distributive share in the other’s property; they are also authorized thereby to contract for the future support of either of them and their children during such separation. ’ ’

Also, in the case of Meyer v. Meyer, 153 Ohio St., 408, 91 N. E. (2d), 892, the court said in the second paragraph of the syllabus:

‘ ‘ On separation, a husband and wife may enter into an agreement mutually releasing their respective rights to dower and distributive shares and releasing each other from claims for care, support or maintenance.”

See, also, 14 Ohio Jurisprudence, 556, “Divorce and Separation,” Section 155.

Whether or not under the circumstances of the case the provisions of the separation agreement here under consideration were fair and reasonable did not engage the court’s attention. The trial court simply held, before any evidence was offered on that question, that because it was admitted that the defendant Martha Burlovic was an infant when she signed the separation agreement and was still under age upon trial, she had the right to disaffirm the agreement and in doing so was entitled to her rights as provided by law, as the surviving spouse of her deceased husband.

The statute does not distinguish between married persons who have attained the age of 21 years and those who have not. It refers to those who are husband and wife, and that relationship can be lawfully assumed by persons under 21 years of age (Section 3101.01, Revised Code, supra). The contract of separation being one authorized by law, it is therefore binding on the parties and cannot be avoided by the defendant Martha Burlovic, for the sole reason that she was not of age when the contract was made and has not, as of the date of trial, yet reached her majority.

One other reason requires us to reverse this judgment. The Probate Court is, by the Constitution of Ohio, vested with sole jurisdiction to administer estates. (Sections 1, 7 and 8 of Article IV.) A complete administrative code has been established by the Legislatere, known as the Probate Code, spelling out each step to be taken in the administration of the estate of a deceased person. As a part of that code, Section 2131.03, Revised Code, provides as follows:

‘ ‘ Any antenuptial or separation agreement to which a decedent was a party is valid unless action to set it aside is begun within six months after the appointment of the executor or administrator of the estate of such decedent, or unless within such period the validity of such agreement is otherwise attacked. ’ ’

This statute is a part of the Probate Code. The limitation provided for is effective only in the event 0'p the death of one of the parties to an antenuptial or separation agreement. It (the statute, Section 2131.03, Revised Code, supra) provides that action to set aside such agreement must be commenced within six months after the appointment of the administrator. It is admitted by the stipulations of fact that this was not done.

On behalf of the defendant Martha Burlovic, it is contended that until she reaches her majority she has the right to disaffirm such contract and by her answer to plaintiffs’ petition does disaffirm the separation agreement.

It is to be noted that there is no saving clause provided for by this statute, tolling its operation in case of disability (including minority) (Section 2131.03, Revised Code). Until one who is a party to a separation agreement and who is a surviving spouse in such estate takes action to set the separation agreement aside, it remains binding on one not of age at the time of the appointment of an executor or administrator. The failure of the Legislature to exempt persons under disability is fatal to the defendant Martha Burlovic ’s contention.

In the case of Favorite v. Booher’s Admr., 17 Ohio St., 548, paragraph lb of the headnote, found in the Century Edition annotated, is as follows:

“The general rule in regard to the application of statutes of limitation is, that all persons, whether under disability or not, are barred by them, unless excepted from their operation by a saving clause.”

And at page 554 the court said:

“Nor will the fact that the creditor is under the disability of infancy save him from the operation of the bar which the statute interposes.

“The general rule in regard to the application of statutes of limitation is, that all persons, whether under disability or not, are barred by them, unless excepted from their operation by a saving clause. General words of a statute are to receive a general construction, and unless there is found in the statute itself some ground for restraining it, it cannot be restrained. Angelí on Lim. Sec. 194. ’ ’

The holding in that case has never been overruled by the Supreme Court and was followed by Wash-burn, J., of the Ninth District Court of Appeals in the case of Breen, Admx., v. Conn et al., Exrxs., 64 Ohio App., 325, 28 N. E. (2d), 684, where in the syllabus it is provided:

“The provisions of Section 10509-112, General Code, requiring the filing of a claim against an administrator as a condition precedent to the bringing of an action against him on the claim, apply to a suit brought by a minor on such a claim, and the disability of infancy will not save him from the operation of the statute; and a petition by or for the benefit of a minor on such a claim which does not allege that the claim has been so presented, does not state facts sufficient to constitute a cause of action. ’ ’

It is to be noted that in the chapter on Limitation of Actions in the Revised Code of Ohio, the Legislature found it necessary to provide a saving clause against absence from the state, self-concealment and the effect of certain disabilities including minority. Likewise, in the Probate Code, Section 2107.23, Revised Code, time for contesting a will; Sections 2107.39 to 2107.45, inclusive, Revised Code, dealing with the right to elect whether the surviving spouse will take under the law or under the will; Section 2117.07, Revised Code, dealing with filing of claims; and Section 2117.41, Revised Code, dealing with actions against heirs and devisees, all provide certain exceptions to the running of the statute in case of stated disabilities.

Section 2131.03, Revised Code, as above indicated, provides no exception as to the time within which action must be brought to challenge the validity of a separation agreement. We hold, therefore, under the stipulations of fact, the defendant Martha Burlovic, having failed to bring action to set aside the separation agreement within six months of the appointment of an administrator of her deceased husband’s estate, is, under the provisions of Section 2131.03, Revised Code, bound by the agreement.

The contention that the Common Pleas Court cannot now take jurisdiction of the case because the Probate Court having taken jurisdiction of the probate proceedings is now vested with exclusive jurisdiction of all questions to be litigated in the case, and the failure of plaintiffs to object to the confirmation of the appraisers’ return, is a complete bar to this action, cannot be supported. The appraisers have no power to deal with the validity of a deceased person’s separation agreement.

In the case of Keever v. Brown, Exrx., 36 Ohio App., 1, 172 N. E., 626, in the second paragraph of the syllabus, the court said:

“The administrator of an estate should make his inventory, including the statutory set-offs,. notwithstanding the claimed existence of an antenuptial contract that would defeat such set-offs. The order of the Probate Court requiring such inventory is not an adjudication that there is no such antenuptial contract, nor is it an interpretation of such contract.”

The approval of the inventory and appraisal by the court does not finally adjudicate the validity or invalidity of a separation agreement or the question of whether a surviving spouse has, by such contract, lost the right to participate in the estate of his deceased spouse, to the extent of the property exempt from administration under Section 2115.13, Revised Code, or for the year’s allowance under Section 2117.20, Revised Code.

In the case of Scott v. Mofford, 64 Ohio App., 457, 28 N. E. (2d), 947, the second paragraph of the syllabus provides:

“Inclusion of the real estate in the inventory of the grantor’s estate, to which no exception was filed and no actual hearing conducted by the Probate Court, is not res jucticata, and does not estop the grantee from asserting title to the real estate.”

And at page 459 the court said:

‘£ The primary purpose of an inventory is to furnish a list of the property which appears to belong to the decedent and a valuation thereof. It is made on an ex parte investigation and clearly binds no one. Where no exceptions are filed to it, there is no judicial inquiry at all. It is only when exceptions are filed and the jurisdiction of the Probate Court is invoked to inquire into the validity of the schedule of property that the proceeding takes on the character of litigation. ’ ’

It has been almost universally held that, where, by the terms of a separation agreement, all rights of the surviving spouse in the estate of his deceased spouse are waived, such waiver includes that portion of such estate as is by law exempt from administration by statute.

In the case of Cohen v. Cohen, 82 Ohio App., 260, 80 N. E. (2d), 813, the court held:

“An antenuptial agreement found to be fair, reasonable and by the decedent fully performed for some sixteen years is sufficient to preclude the widow from receiving the exemptions provided by Section 10509-54, General Code, and is a complete bar to setting them off to her. ’ ’

See, also, In re Prudenzano’s Will (1949), 116 Vt., 55, 68 A. (2nd), 704, where, in the fourth paragraph of the syllabus, it is stated:

“A widower’s statutory rights in his deceased wife’s estate may be barred in equity by a postnuptial contract, made after separation or in contemplation of an immediate separation which takes place as contemplated, provided that the bargain is' fair and equitable in view of the circumstances of the parties. ’ ’

See, also, Matter of Baratta, 199 Misc., 246, 102 N. Y. Supp. (2d), 766.

In re Estate of Winter (1948), 164 Kan., 615, 192 P. (2d), 186, where, in the second headnote in Pacific Reporter it is provided:

“Postnuptial contracts fixing property rights between husband and wife, freely and intelligently made and just and equitable in their provisions, may effectively dispose of homestead rights and other allowances granted to surviving spouse under statute.”

We must therefore hold that by the provisions of the separation agreement the defendant waived any right to her husband’s estate set off to her by statute.

The Common Pleas Court was vested with jurisdiction to entertain this action for a declaratory judgment, by reason of the declaratory judgment act, Sections 2721.01 to 2721.15, inclusive, Revised Code. Radaszewski v. Keating, Exrx., 141 Ohio St., 489, 49 N. E. (2d), 167.

For the foregoing reasons, the judgment of the Common Pleas Court is reversed and final judgment entered for the plaintiffs.

Judgment reversed.

Hurd, P. J., and Kovachy, J., concur.


author: Hunsicker, J.

text:
    Smith, Appellee, v. Etling, Appellant.
    (No. 4428
    Decided February 3, 1954.)

      Mr. George R. Platt, for appellee.

      Mr. Otto C. Moyer, for appellant.
   Hunsicker, J.

This is an appeal on questions of law from the Municipal Court of Barberton, Ohio.

On August 15, 1953, Elizabeth B. Smith, the appellee herein, filed an action in forcible entry and detainer against B. O. Etling, the appellant herein, seeking restitution of certain premises which Mr. Etling had leased from Mrs. Smith. The lease, which, was in writing, called for a term of five years, commencing on May 1, 1951, and' ending on April 30, 1956.

The lease contained the following provision:

‘ ‘ That if default be made in payment of said rent or any part thereof or in fulfillment of any of the covenants or agreements herein specified to be fulfilled by the lessee, or if any waste be committed or unnecessary damage done upon or to said premises, the lessor may, at lessor’s election at any time while such default continues or before the replacement or repair of such waste or damage, without notice declare the said term ended and enter into possession of said premises and sue for and recover all rents and damages accrued or accruing under this lease or arising out of any violation thereof; or lessor may sue and recover without declaring this lease void or entering into possession of said premises.”

B. O. Etling became delinquent in his payment of the rent called for by the lease, and an action in forcible entry and detainer was then filed in the Municipal Court of Barberton, Ohio, after the proper notice to vacate and surrender the premises was served.

The trial court awarded a judgment of restitution of the premises to Mrs. Smith, from which judgment B. O. Etling has appealed to this court, assigning as error that:

“1. The Barberton Municipal Court was without jurisdiction to hear the above-entitled action.

“2. The court erred in overruling the defendant’s motion for dismissal of plaintiff’s case upon the opening statement of the plaintiff.

“3. The court erred in failing to sustain the defendant’s motion for dismissal of plaintiff’s cause at the conclusion of all of the plaintiff’s evidence.

“4. The judgment is against the weight of the evidence.

‘ ‘ 5. The judgment is contrary to law. ’ ’

The principal complaint and the one most strenuously urged upon us, is that the Barberton Municipal Court was without jurisdiction to ente'rtain this action in forcible entry and detainer, and that the only way for Mrs. Smith to get possession of her property is by an action in ejectment filed in the Court of Common Pleas.

The question posed by the appellant, B. O. Etling, may be stated as follows: May the lessor herein, who has entered into a written lease for a term of years, maintain an action in forcible entry and detainer in the Municipal Court, where the lease by its terms gives to the lessor, in case of default in the payment of rent, an express right to declare the lease void, and a right to re-enter and repossess the premises?

The action in forcible entry and detainer was not available at common law, but is a creature of statute. Yager v. Wilber, 8 Ohio, 398; Rothwell v. Winterstein, 42 Ohio St., 249.

"The action of forcible entry and detention, or of forcible detention only, is intended to be a speedy and summary mode for the recovery, in the cases specified in the statute, of lands and' tenements. ’ ’ Carroll v. O’Conner, 25 Ohio St., 617.

It has long been recognized that actions in forcible entry and detainer are possessory in nature and do not involve the question of the title to the premises. Jaeger v. Goldzwig, 42 Ohio Law Abs., 340, 60 N. E. (2d), 625; 19 Ohio Jurisprudence, Forcible Entry and Detainer, Section 2.

The Uniform Municipal Court Act, Section 1581 et seq., General Code (now Section 1901.01 et seq., Revised Code), continued the existence of the Municipal Court for Barberton, Ohio. Section 1594, General Code, of such act provided for the jurisdiction of Municipal Courts, including the Municipal Court of Barberton, and it said, in part, that "* * * a Municipal Court shall have original jurisdiction within its territory : * * # (H) In any action of forcible entry and detainer * *

Section 10449, General Code (now Section 1923.02, Revised Code), provided the conditions under which an action in forcible entry and detainer may be prosecuted, and said, in part:

“Proceedings under this chapter may be had against tenants holding over their terms * * *. Also when the defendant is an occupier of lands or tenements, without color of title, and to which the complainant has the right of possession, or any other case of their unlawful detention.” (Emphasis ours.)

The lease from Mrs. Smith to B. O. Etling was terminated according to its terms, and when it was so ended, B. O. Etling held over his term and had no right of occupancy thereafter.

The bringing of the action upon this holding over was then authorized by the statute (Section 10449, General Code).

, The legal question involved in this case has been before the courts of this stare in a number of instances, and the authorities hereinafter cited hold that, where a lease for a term of years provides that, upon breach of a covenant to pay rent, the lessor may declare the lease void and re-enter and repossess the premises, the action in forcible entry and detainer may be invoked to gain a restitution of the premises. Adair v. Crepps, 81 Ohio App., 136, 76 N. E. (2d), 287; Jaeger v. Goldzwig, supra.

The jurisdiction of the Municipal Court to entertain an action for the restitution of real property, where a contract for the purchase of the land was in default, and for that reason such contract had been declared void by the vendor (as provided in the land contract), has heretofore been determined by this court in the case of Maxen v. Brogle, 16 Ohio Law Abs., 555. The similarity in this case to the one now before us is readily apparent.

See also: State, ex rel. Kennelly, v. Miller, Judge, 43 Ohio App., 173, 183 N. E., 41; and Martin v. Bircher, 46 Ohio App., 239, 188 N. E., 365.

We therefore determine that a lessor of lands, situated in the city of Barberton, Ohio, who has entered into a written lease for a term of years, may maintain an action in forcible entry and detainer against the lessee in the Municipal Court of Barberton, where the lease by its terms gives to the lessor, in the event of default in the payment of rent, an express right to declare the lease void and a right thereafter to re-enter and repossess the premises.

We have’ examined all other claimed errors, and find none prejudicial.

Judgment, affirmed.

Doyle, P. J., and Hurd, J., concur.

Hurd, P. J., of the Eighth Appellate District, sitting by designation in the Ninth Appellate District.


text:
    In re Quatman.
    (No. 172
    Decided February 28, 1953.)

      Messrs. Durbin, Navarre & Risor, for petitioner.

      Mr. George Monahan, for respondent.
   Per Curiam.

This cause is submitted on application of Frederick Quatman for a writ of habeas corpus, the return of such writ made by the sheriff of Auglaize county, and the evidence.

A. G. Gerstner, the chief of police 'of the city of St. Marys, filed his affidavit in the mayor’s court of said city charging the petitioner with threatening him in a menacing manner, in violation of Section 12423, General Code.

Petitioner was brought before the mayor of the city by the chief of police, at which time he claims he understood the charge against him was that of being intoxicated and, with that understanding, pleaded guilty to such charge.

Petitioner’s claim is disputed by both the mayor and chief of police who insist the charge of threatening in a menacing manner, in violation of Section 12423, General Code, was read to him before the plea of guilty was made by the petitioner.

The petitioner was found guilty upon such plea and sentenced by the mayor to the maximum penalty under said section, viz., six months in jail and a fine of $200 ana costs, and was committed to the county jail of Auglaize county where he is now held in the custody of the sheriff of said county.

It is not claimed and it does not appear of record in the cause before the mayor, that the petitioner was advised of his right to a trial by jury upon the charge filed against him, or that he waived such right by any affirmative action on his part, except as his plea of guilty may have operated as such a waiver.

Since the penalty for the violation of Section 12423, General Code, may be imprisonment, a waiver of a trial by jury is a prerequisite to a hearing upon such charge before the mayor of a city, under the provisions of Section 4530, General Code. This section governs procedure in such cases before the mayor, to the exclusion of the provisions of Section 13424-1, General Code. Village of New Miami v. White, 73 Ohio App., 12, 15, 53 N. E. (2d), 664.

Consequently, the failure of petitioner to demand a trial by jury did not constitute a waiver of such trial, and no such waiver having been made, the mayor, under the provisions of Section 4530, General Code, was without jurisdiction to act upon the plea of guilty or to sentence the defendant, his jurisdiction in such situation being limited to examining the defendant on such charge and if he found that probable cause existed, binding him over to the grand jury of said county. See, also, City of Fremont v. Keating, 96 Ohio St., 468, 118 N. E., 114; and Simmons v. State, 75 Ohio St., 346, 79 N. E., 555.

It is therefore ordered that petitioner be and he hereby is ordered discharged from the custody of the sheriff of said county under his pretended sentence and delivered by the sheriff to said mayor’s court for further proceedings according to law.

Petitioner discharged from custody.

Younger, P. J., Middleton and G-uernsey, JJ., concur.


text:
    City of Dayton, Appellee, v. Zoller, Appellant.
    (No. 2279
    Decided April 1, 1954.)

      Mr. Herbert S. Beane, Mr. Wm. P. Keane and M«•. Mr. John R. Ensley, for appellee.

      Messrs. Murray é Murray, for appellant.
   Wiseman, P. J.

This is an appeal on questions of law from a judgment of conviction by the Municipal Court of Dayton for a violation of the noise ordinance of the city of Dayton, Ohio.

The charge made was that the defendant, James E. Zoller, did, on the second day of October 1953, * ‘ while operating a motor vehicle on the streets of the city of Dayton, discharge into the open air the exhaust of said motor vehicle through a muffler which did not effectively prevent loud or explosive noises therefrom,” contrary to Ordinance Section 420-2 (7) of the city of Dayton, Ohio.

The evidence shows that on said date the defendant was operating his automobile in an easterly direction on Linden Avenue; that when he reached Smithville Boad he stopped for the traffic signal; when the traffic signal permitted him to proceed, he crossed the intersection and, a few hundred feet beyond, he was stopped and arrested by police officers of the city and was charged with violation of the noise ordinance.

The 1950 Ford coach which defendant was driving was equipped with what is known as a dual exhaust system, and “Echo tips” and a “Hollywood” or ‘ ‘ straight-through ’ ’ muffler. This equipment amplified the sound caused by the exhaust. The standard equipment which would have caused less noise had been removed. The police officers testified that the exhaust on defendant’s automobile made a loud and excessive noise which annoyed and disturbed them; that the noise would have annoyed and disturbed residents on the street.

The ordinance in question reads as follows:

“420-1. It shall be unlawful for any person to make, continue, or cause to be made or continued any loud, unnecessary or unusual noise or any noise which either annoys, disturbs, injures or endangers the comfort, repose, health, peace or safety of others, within the limits of the city.

“420-2. The following acts, among others, are declared to be lond, disturbing and unnecessary noises in violation of this ordinance, but said enumeration shall not be deemed to be exclusive, namely:

( ( * * #

“ (7) Exhausts. The discharge into open air of the exhaust of any steam engine, stationary internal combustion engine, motor boat, or motor vehicle except through a muffler or other device which will effectively prevent loud or explosive noises therefrom.”

We are concerned only with Section 420-2 (7). The defendant was charged with violating this particular section.

. The defendant was found guilty and sentenced. The defendant contends the judgment is contrary to law. Specifically, the defendant contends that the ordinance is void for vagueness and for lack of sufficient standards by which to determine whether any given act is made an offense; that the ordinance violates the “due process” clause of the 14th Amendment to the United States Constitution.

This is a case of first impression in Ohio. Defendant cites numerous cases decided by the Supreme Court of the United States in which ordinances and statutes were held to be void because of vagueness and uncertainty: Joseph Burstyn, Inc., v. Wilson, Commr. (1952), 343 U. S., 495, 96 L. Ed., 1098, 72 S. Ct., 777; Gelling v. Texas (1952), 343 U. S., 960, 96 L. Ed., 1359, 72 S. Ct., 1002; Winters v. New York (1948), 333 U. S., 507, 92 L. Ed., 840, 68 S. Ct., 665; Lanzetta v. New Jersey (1939), 306 U. S., 451, 83 L. Ed., 888, 59 S. Ct, 618; Connally, Commr., v. General Construction Co. (1925), 269 U. S., 385, 70 L. Ed., 322, 46 S. Ct., 126; United States v. L. Cohen Grocery Co. (1921), 255 U. S., 81, 65 L. Ed., 516, 41 S. Ct., 298; and many other cases. In onr opinion, the ordinances and statutes in the cited cases were so dissimilar to the ordinance under construction here that the decisions construing them are not controlling.

The case of Kovacs v. Cooper, Judge (1949), 336 U. S., 77, 93 L. Ed., 513, 69 S. Ct., 448, 10 A. L. R. (2d), 608, bears a close analogy to the case at bar. In that case the ordinance of the city of Trenton, New Jersey, in part, provided:

“That it shall be unlawful for any person, * * * to play, use or operate for advertising purposes, or for any other purpose whatsoever, on or upon the public streets * * * any device known as a sound truck * * # or any instrument of any kind or character which emits therefrom loud and raucous noises * * *.”

In that case the defendant operated a sound truck on the public streets, and was arrested and convicted. The conviction was upheld by the Supreme Court by a divided court. In a dissenting opinion attention is called to the fact that the defendant was neither charged with nor convicted of operating a sound truck that emitted “loud and raucous noises.” He was charged with operating on the public streets a device known as a sound truck. There was no evidence that the noise was either “loud or raucous.” However, the majority of the court stated that the evidence was to the effect that the police officer heard the sound truck broadcasting music. Upon going in the direction of the sound, the officer located the truck on the public street. The defendant admitted that he operated the mechanism for the music and spoke into the amplifier. It was contended in that case that the ordinance violated Section 1 of the 14th Amendment to the United States Constitution, which guarantees freedom of speech and “due process,” on the ground that the ordinance was so obscure, vague and indefinite as to be impossible of reasonably accurate interpretation. Tbe court rejected this view and, on page 80, held:

“We think the words of Section 4 of this Trenton ordinance comply with the requirements of definiteness and clarity, set out above.”

In a concurring opinion, Justice Jackson agreed with Justice Reed, who wrote the majority opinion, and, on page 97, said:

“I join the judgment sustaining the Trenton ordinance because I believe that operation of mechanical sound-amplifying devices conflicts with quiet enjoyment of home and park and with safe and legitimate use of street and market place, and that it is constitutionally subject to regulation or prohibition by the state or municipal authority.”

In our opinion, the ordinance of the city of Dayton under consideration is a valid enactment, and falls within the proper exercise of the police powers of the city. In the application of the reasoning in the Kovacs case, supra, we hold that the ordinance designates the act which is made an offense with sufficient specificity to avoid a charge of unconstitutionality on the ground of vagueness and uncertainty.

There being no error in the record prejudicial to the rights of the defendant, the judgment is' affirmed.

Judgment affirmed.

Miller and Hornbeck, JJ., concur.