author: Doyle, J.

text:
    Patton, Appellee, v. Pennsylvania Greyhound Lines, Appellant.
    (No. 3677
    Decided October 25, 1944.)

      Mr. J. A. Dean, for appellee.

      Mr. W. A. Woodling, for appellant.

      Mr. John G. Grimm, amicus curiae.

   Doyle, J.

The proceeding is one to recover damages for baggage, checked with a common carrier for interstate transportation and subsequently lost.

Olin L. Patton commenced the action in the Municipal Court of Akron, against the Pennsylvania Greyhound Lines, also known as Greyhound Lines, a common carrier by motor vehicle engaged in interstate commerce, and charged the carrier with the loss of his baggage, which had been checked by him in Akron for carriage to Tuscaloosa, Alabama, following the purchase of a ticket for his personal transportation between the two stations.

The Municipal Court awarded damages in the sum of $112. It is the claim of the carrier, in its appeal to this court, that its liability should not exceed $25. The assertion is bottomed upon the following argument :

* * under the motor carrier act of 1935, its operations are amenable to interstate commerce commission regulations, and inasmuch as it had on file with the interstate commerce commission a tariff, as required by section 317 of the motor carrier act and in the form required by interstate commerce regulations, in which tariff it is provided that its maximum liability for the carriage of baggage shall be $25, unless excess value is declared and charges paid for such excess value, it is not liable to plaintiff for a greater sum.”

Inasmuch as this litigation involves an interstate shipment of baggage with a common carrier by motor vehicle, where the carrier has complied with the federal regulations governing its field of operation, the rights and liabilities of the carrier are governed by federal laws and decisions. T. & O. C. Ry. Co. v. S. J. Kibler & Bros. Co., 97 Ohio St., 262, 119 N. E., 733; Zang v. Railway Express Co., 130 Ohio St., 17, 196 N. E., 901.

In this connection it is observed that, in the year 1935, there was' added to the interstate commerce act a new chapter which regulates interstate commerce by motor vehicle, and, while most of the federal court decisions under the act deal with the liability of carriers by rail or water, nevertheless, under the comprehensive language of the new chapter, those decisions become authority for cases involving carriage by motor vehicle.

Federal court decisions support the following-quoted text in 13 Corpus Juris Secundum, Carriers, Section 874:

* * Limitation of liability of carriers for an interstate passenger’s baggage is covered by the Interstate Commerce Act and amendments thereto, and limitation of liability, to some extent at least, by published tariff, is permissible under the Carmack Amendment, 49 U. S. C. A. Section 20 (11), and this rule was not altered by the Cummins Amendment, as amended 49 U. S. C. A. Section 20 (11). * '* *” Boston & Maine Rd. Co. v. Hooker, 233 U. S., 97, 58 L. Ed., 868, 34 S. Ct., 526, L. R. A. 1915B, 450, Ann. Cas. 1915D, 593; Galveston, H. & S. A. Ry. Co. v. Woodbury, 254 U. S., 357, 65 L. Ed., 301, 41 S. Ct., 114.

A part of Title 49, Section 20 (11), U. S. Code, of the interstate commerce act is in the following language:

“* * * that the provisions hereof respecting liability for full actual loss, damage, or injury, notwithstanding any limitation of liability or recovery or representation or agreement or release as to value, and declaring any such limitation to be unlawful and void, shall not apply, first, to baggage carried on pas^ senger trains or boats, or trains or boats carrying passengers * * V’

The new “motor carriers” addition to the act is so worded that, under the above provision, there may be a limitation of liability not only of “baggage carried on passenger trains or boats,” etc., but also of baggage carried on motor vehicles or busses engaged in interstate commerce.

One of the new provisions, Title 49, Section 319, U. S. Code, is as follows:

“The provisions of section 20 (11) and (12) of this title [49], together with such other provisions of chapter 1 of this title (including penalties) as may be necessary for the enforcement of such provisions, shall apply with respect to common carriers by motor vehicle with like force and effect as in the case of those persons to which such provisions are specifically applicable.” (Italics ours.)

We therefore conclude that, under certain circumstances, there may be a limitation of baggage liability under the interstate commerce act for baggage carried on motor busses as well as on railroad trains or boats.

And in connection with the facts in this case, we determine that the “certain circumstances” heretofore mentioned have been fully met by (1) the filing with the interstate commerce commission of a tariff covering this and similar shipments, and the approval of the commission of such tariff; (2) the notice to the passenger of such a baggage limitation, printed on his baggage receipt as well as on his passenger ticket; (3) the printed notice on the wall of the station; (4) the opportunity to pay a larger fare for an increased carrier risk; and (5) the failure of the passenger to declare any value on his baggage.

The principles _ underlying a limitation of baggage liability are the establishment of base rates upon value,, and that the compensation paid should bear a reasonable relation to the risk and responsibility assumed.

It follows that the judgment must be reversed as being contrary to law; and this court, proceeding now to render the judgment which the Municipal Court should have rendered, hereby orders that judgment in the sum of $25 be entered in favor of the appellee (plaintiff below).

Cause remanded for execution.

Judgment reversed.

Stevens, P. J., and Washburn, J., concur.


source: Caselaw Access Project

author: Ross, P. J. Matthews, J.,

license: Public Domain

text:
    Turner, Appellee, v. Central Outdoor Advertising Co., Inc., Appellant.
    (No. 6388
    Decided June 5, 1944.)

      Mr. Arthur W. Gordon, for appellee.

      Mr. Bert H. Long and Mr. Milton M. Bloom, for appellant.
   Ross, P. J.

This is an appeal on questions of law from a judgment of the Court of Common Pleas of Hamilton county, entered upon a verdict in favor of the plaintiff.

The suit was brought to recover damages, both compensatory and punitive, from the defendant, based upon the institution by the defendant of an action for injunction against the plaintiff, the granting of a temporary restraining order against plaintiff and the instituting of contempt proceedings against plaintiff; such suit, when heard upon the merits, for permanent injunction, being dismissed by the Court of Common Pleas.

It is alleged by plaintiff that the acts of the defendant were “wrongful and malicious and without reasonable or probable cause.”

The first defense of the defendant was in effect a general denial including, however, admission of certain matters of record and allegations that the granting of the temporary restraining order was after notice to plaintiff and hearing by the court, and that at the hearing of the charges of contempt, plaintiff was found guilty as charged, and such proceedings were dismissed at costs of plaintiff.

A reply was filed in which it was alleged that the hearing upon application for a temporary restraining, order was had after short notice to the attorney for plaintiff and the matter was not fully presented to the court. Plaintiff denied that he was found guilty of contempt. Otherwise, the reply was a general denial of new matter set up in the answer.

The plaintiff at one time was an employee of the defendant. After he left the employment of defendant, he engaged in the same type of business in the city of Cincinnati as that conducted by defendant, which is generally described as “outdoor advertising.” The conduct of such business requires the securing of many suitable locations for the erection of display billboards and the exhibition of advertisements, usually painted signs on walls.

It is obvious that those industries interested in publicizing their products by means of such advertising will employ the agency which is able to secure the largest number of the most favorable positions for the purposes involved. This naturally causes those engaged in such “outdoor advertising” business to exert every effort to secure such positions.

It is apparent, also, from the evidence presented in the bill of exceptions, that very often it is to the advantage of a competitor to “block out” a sign erected by another competitor, for if an advertisement is so affected, the selling value of the space so obscured is rendered valueless, and the advertisement must be replaced in a new position as advantageous, or the patron’s business will be lost.

The evidence shows that, this form of rivalry existed between the plaintiff and defendant'and that it presented a situation of “give and take.” Both plain-' .tiff and defendant resorted to “blocking out” tactics. Sometimes the practice resulted in a direct financial profit to the one who placed the sign in front of the other, by reason of the receipt of revenue from the use of such signs. Sometimes the only advantage was in obscuring the competitor’s sign, thus depriving him of the space as a place for an advertisement.

It appears, also, that plaintiff secured a contract to “service” certain signs maintained by the defendant. Plaintiff claims that by virtue of such contract, defendant is obligated to pay him certain sums for such “services,” but has refused to pay. No action, however, appears to have been taken by plaintiff to secure what is due him, by recourse to the courts.

Does the mere failure to pay a disputed account indicate malice?

Plaintiff also introduced evidence that defendant was indebted to him for other contractual obligations. A suit was filed for this and dismissed by plaintiff, without prejudice.

Does the defense of such a suit indicate malice?

Whether such evidence of mere disputed obligations of the defendant to plaintiff is properly admissible in this kind of a case is certainly questionable.

A reading of the evidence shows clearly that there existed between the parties to this action the keenest competition and that each endeavored to secure as much business as possible and to prevent the other from advancing its business. All of these items of evidence were introduced to show malice on the part of defendant, or that plaintiff resorted to the same measures adopted by defendant, and that such expedients were incidents of the business in which each was engaged.

One particular case is cited by counsel for plaintiff •as indicating an example of malice by defendant.' In fact, it merely demonstrates what the defendant thought good business in the particular instance. The plaintiff purchased a building on which the defendant had a large sign imposed upon an iron framework, and resting upon brick foundations. The plaintiff offered to purchase the superstructure and foundations from defendant. It refused to sell and took down the framework and removed the foundations. The price offered for the structure would have produced a substantial profit to defendant over the value of the structure removed. It is also noted that defendant took away the brick foundations which would have been serviceable to plaintiff. It is apparent that defendant considered it better business to take down its structure tba.n to sell it to plaintiff, although this resulted in immediate financial loss to defendant. Obviously, if the sign had simply been transferred to plaintiff, resulting in the replacing of his sign for that of defendant, the difference in cost of removal and sale might not have offset the prestige lost hy the evident substitution of a sign of a competitor.

Such was the situation between these parties when the incidents occurred which led up to the filing of the injunction proceedings by the defendant.

In May 1940, the plaintiff obtained permission from the owner of a building known as the Blymyer building to place a painted sign on the south side of this building on Main street in the city of Cincinnati and he painted that portion of the south side of this building, extending above the roof of the adjacent building to the south, owned by the University of Cincinnati, with two large advertisements. In order to do this, it was necessary to hang ropes from the top of the Blymyer building, and some extensive use of the roof of the building on the south, owned by the University of Cincinnati, was incident to this work. Permission at that time was obtained from the University of Cincinnati .to so use the roof of its building.

In June 1941, the defendant obtained a “lease” from the University of Cincinnati, permitting it to use the roof of the latter’s building', adjacent on the south to the Blymyer building, for the purpose of erecting a sign or billboard thereon. The terms of this document will be considered later.

Thereafter, in August 1941, the plaintiff commenced to repaint the signs on the Blymyer building and, in so doing, again made extensive use of the roof of the university building. There is some evidence that paint was thrown upon the skylight in the roof of the university building, and that this caused the tenant of the upper floor to become irritated, resulting in his refusal to permit defendant to put bolts through the roof, which were necessary to the erection of a sign superstructure on such roof.

On August 11, 1941, the attorney for the defendant wrote plaintiff claiming- a previous trespass against its exclusive possession of the university building roof and stating that further trespass would be prosecuted to the fullest extent of the law. The attorney, of course, was in error as to the “previous” trespass. The plaintiff ignored this letter, but did secure from the executive vice-president of the University of Cincinnati permission to again use the roof of its building- for purposes incident to the repainting of the signs on the Blymyer building.

Strangely, this permission was not divulged to the defendant or the court even at the hearing upon application for a temporary restraining order.

The plaintiff continuing with its use of the university building roof, defendant filed suit for injunction, made an application for a temporary restraining order and gave notice of the hearing to plaintiff. The plaintiff was represented by counsel, hearing was had and evidence was introduced. No request was made by plaintiff in the instant case for a continuance. This occurred on Saturday morning on January 3, 1942. The restraining order was granted. The defendant in the case at bar gave a cash bond. No further action was taken by plaintiff in this case, who left his ropes, scaffolding and paraphernalia on the roof of the university building or hanging on the Blymyer building walls, until April 1942, when he removed same. Defendant then filed contempt proceedings and, upon hearing, the court dismissed the same at the costs of the plaintiff. Although such action was somewhat anomalous, no appeal was taken from this judgment.

The temporary restraining- order required plaintiff to remove his equipment. Why he delayed from January until April does not appear.

His intention to remove in April however, was not brought to the attention of the court. The defendant had every reason to believe that he had abandoned any intention to comply with such order. i

In July 1942, the case was heard upon its merits, and the court then dismissed the petition for injunctive relief upon the theory that the “lease” from the University of Cincinnati to defendant did not give it exclusive use of the roof of the university building, but that such “lease” was in fact but a bare permit to use such roof for the purpose of erecting a sign thereon.

No appeal was taken by the defendant from that judgment.

' In September 1942, an order was made for a refund of the bond posted upon the giving of the restraining order.

It is clearly apparent from the evidence that the defendant at all times acted strictly upon the advice of its counsel who was not associated with defendant in any other manner than its legal adviser, and that defendant made a full disclosure to its attorney of all facts necessary to form an opinion as to its rights. In fact, its counsel made, at its request, personal inspection of the situation presenting a basis for the determination of defendant to protect its rights in the premises.

The action of the defendant was predicated solely upon the advice of its counsel that the “lease” from the University of Cincinnati gave it a possession of such roof, which excluded the plaintiff from the use thereof, and that his use thereof was a violation of its legal rights as found in such document.

This “lease” is a lengthy document evidently prepared by an attorney. It- contains many clauses protecting the rights of both “lessor” and “lessee.” It evidently, in the opinion of the attorney for defendant, gave it the exclusive right to the occupation of the roof of the university building. Neither the attorney for defendant nor defendant knew of the permission to use the roof given by the officer of the university until after the granting of the temporary restraining order. The judge who heard the application for this order, the plaintiff being represented at such hearing and being given ample opportunity to present his side of the case, was not advised of such permission and also found that the “lease” gave the defendant rights to sole occupation of the roof to the exclusion of plaintiff and that he was, therefore, violating the rights of defendant contained therein, thus entitling defendant to the restraining order.

The jury in its verdict assessed damages against the defendant in the amount of $13,253.25. The actual damages of plaintiff were trivial. Almost the entire sum must be considered as punitive damages. This indicates that the jury must have been swayed by considerations wholly unjustified by the evidence presented. It is probable that this result was produced at least in part by evidence permitted indicating the slender resources of plaintiff and the substantial size and importance of the defendant.

Now the terms of the “lease,” which are more directly pertinent to the issues here presented, are:

“That the lessor shall at all reasonable times have access to said roof for the purpose of repairing, or painting the same and other parts of said building or for any purpose other than advertising, which will not interfere with the use and occupancy of the lessee. # # #
“That the lessee paying the rents and observing and performing all the obligations on the part of the lessee to be observed and performed hereunder, the lessee shall quietly and peaceably hold, occupy and enjoy said premises, during said term, or any renewal thereof, without any let, hindrance or molestation by said lessor, or any person or persons claiming under it.”

While the conclusion that this “lease” does not give exclusive possession of the roof for all purposes is correct, it is apparent also that the language used in the clauses of the lease quoted is indicative that the defendant did have very substantial rights conveyed to it by the “lessor.” It is to be remembered, also, that the attorney for defendant advised defendant that the “lease” did give it exclusive possession. It cannot be supposed that able counsel for defendant would definitely mislead his client. It is evident also, therefore, that the defendant had the right to rely upon its counsel’s advice that it did have such exclusive possession by the terms of the “lease” as to justify its action in instituting an action to enjoin the plaintiff from the infringement of the rights which it had just cause to consider existed.

Again, it is to be remembered that the court hearing the application for a temporary restraining order, had before it the “lease” and must undoubtedly have construed its terms as giving the defendant at least sufficient rights in the use of the roof, to warrant the issuance of the restraining order.. On the question of legal advice and probable cause, the evidence is overwhelmingly in favor of defendant, and implied malice is, therefore, completely negatived. As far as actual malice is concerned, the general tactics adopted by the plaintiff and defendant were not dissimilar. Each sought, as has been pointed out, to limit the activity of the other. It cannot be said that the evidence is at all conclusive that the institution of the injunction proceedings was prompted wholly by a desire to prevent the plaintiff from repainting his sign or to hamper him in so doing. The use of the roof by the plaintiff was calculated to embarrass the defendant in its relation, both with its lessor and the tenants in the university building, especially in the case of the tenant occupying the space directly beneath the roof. Certainly, its purpose in preventing such' embarrassment cannot be considered as evidence of specific malicious intent.

It would seem that there are authorities supporting the right to institute an action for malicious prosecution, based upon an unsuccessful prosecution of a civil suit for injunction. The rule is stated in Newark Coal Co. v. Upson, 40 Ohio St., 17, 25, as follows:

"Was the second cause of action a good one?
"It may now be considered the approved doctrine, that, an action for the malicious prosecution of a civil suit may be maintained, whenever, by virtue of any order, or writ, issued in the malicious suit, the defendant in that suit has been deprived of his personal liberty, or of the possession, use, or enjoyment, of property of value. The name, or form, of the writ, or process, is immaterial. It may be an order of arrest, or of attachment, or of injunction'.
"The malicious prosecutor cannot shield himself behind the interlocutory order of the judge, based upon his own malicious, ex parte application and affidavit.”

The rule is stated without any discussion of the principle involved and without supporting authority. It is* to be noticed that in the Upson case, an appeal was dismissed by the plaintiff in the injunction suit after an adverse judgment in the trial court, and also that a temporary restraining order was granted in an ex parte hearing, by which the plaintiff in the malicious prosecution action was excluded from his property for more than a year, and it is further to be noted that the defendant in the malicious prosecution action had seized the plaintiff’s property by armed force pending the filing of the action for injunction based on false and malicious averments.

In Cincinnati Daily Tribune Co. v. Bruck, 61 Ohio St., 489, 56 N. E., 198, 76 Am. St. Rep., 433, tbe first paragraph of the syllabus reads:

“As a general' rule no suit will lie for the malicious prosecution- of a civil action, where there has been no arrest of the person or seizure of property.”

And, at page 490 of the opinion, it is stated:

“It is a well-settled general rule, that no recovery can be had by a defendant against a plaintiff for the malicious prosecution of a civil action, where there has been no arrest of the person or seizure of property. The cases relied on by the plaintiff in error do not support its claim. That of Coal Co. v. Upson, 40 Ohio St., 17, arose from a suit where a temporary injunction had been obtained on false and malicious averments. A temporary injunction imposes a restraint upon the owner over his property, as hurtful to him as if it were in fact seized; and, it was held, that for the malicious prosecution of such suit, an action would lie.” (Italics added.)

This court, following the rule laid down in the first paragraph of the syllabus in the Bruch case, sustained an instructed verdict for the defendant in a suit for malicious prosecution based upon an action for an injunction, when a temporary restraining order had been granted. Cleveland, Cincinnati, Chicago St. Louis Ry. Co. v. Dumler, 33 O. L. R., 380. It appears on reference to the general law on the subject that the courts in the United States are in sharp conflict. 34 American Jurisprudence, 707, Section 10. The Ohio authorities noted, therefore, must be a guide for conclusion on this phase of the controversy.

Independently of what has been noted as to these, however, it appears illogical to base an action for malicious prosecution upon an appeal to the good conscience and sense of justice of the chancellor, when notice has been given and a hearing had.

It may well be, where automatic summary action of the law is invoked, as in attachment, that there would be some‘basis for permitting redress for loss not covered by a judgment for costs against the unsuccessful plaintiff in such attachment proceeding, even if a bond were given. On the contrary, where a full and .frank disclosure of all the facts is presented in a court of equity, after notice, and the rights of the plaintiff in the suit for injunction are predicated upon the construction of a document conferring possessory rights in the plaintiff, and the court of equity so appealed to, considers the facts so fairly presented as to justify the issuance of a restraining order, it does seem that a different rule should prevail than is existent in cases of criminal prosecutions, or even in civil actions resulting in arrest of the person or seizure of property.

In Peckham v. Union Finance Co., 48 F. (2d), 1016, the Court of Appeals of the District of Columbia cites with approval the first paragraph of the syllabus in the Bruch case. The suit for malicious prosecution in the federal case was based upon a claim that the defendant maliciously applied for the appointment of a receiver without probable cause to believe such appointment was justified. The reasoning of the court and its reference to the authorities justify repeating here:

“In our opinion the greater weight of authority in this country and the better reasoning support the view that no action will lie for the recovery of damages sustained by the prosecution of a civil action with malice, and without probable cause, when there has been no arrest of the person or seizure of the property of the defendant, and no special injury sustained, which would not necessarily result in all suits prosecuted to recover for like causes of action. ‘This doctrine is supported by the following consideration: The courts are open and free to all who have grievances and seek remedies therefor, and there should be no restraint upon a suitor, through fear of liability resulting from failure in his action, which would keep him from the courts. He ought not, in ordinary cases, to be subject to a suit for bringing an action, and be required to defend against the charge of malice and the .want of probable cause. If an action may be maintained against a plaintiff for the malicious prosécution of a suit without probable cause, why should not a right of action accrue against a defendant who defends without probable cause and with malice? The doctrine surely tends to discourage vexatious litigation, rather than to promote it.’ Wetmore v. Mellinger et al., 64 Iowa, 744, 18 N. W., 870, 871, 52 Am. Rep., 465.
“ ‘If every suit may be retried on an allegation of malice, the evils would be intolerable, and the malice in each subsequent suit would be likely to be greater than the first.’ 1 Cooley on Torts, p. 350 (Ed. 1906).

“In Cincinnati Daily Tribune Co. v. Bruck, 61 Ohio St., 489, 56 N. E., 198, 76 Am. St. Rep., 433, the Supreme Court of Ohio held that as a general rule no suit will lie for the malicious prosecution of a civil action, where there has been no arrest of the person or seizure of property. In that case a stockholder of an incorporated newspaper company, maliciously and without probable cause, commenced a suit against the company for dissolution and the appointment of a receiver, to the great injury of the company. The application was denied and the suit was dismissed. The court held that these facts did not constitute a cause of action, entitling the defendant to relief by way of damages, as there was no arrest of the person or seizure of property.

‘ ‘ This view is sustained by many authorities, among which are McNamee v. Minke,. 49 Md., 122; Supreme Lodge American Protective League of Baltimore City v. Unverzagt, 76 Md., 104, 24 A., 323; Pye v. Cardwell, 110 Tes., 572, 222 S. W., 153; Muldoon v. Rickey, 103 Pa., 110, 49 Am. Rep., 117; Smith v. Michigan Buggy Co., 175 Ill., 619, 51 N. E., 569, 67 Am. St. Rep., 242; Bitz v. Meyer, 40 N. J. Law, 252, 29 Am. Rep., 233; Peterson v. Peregoy, 180 Iowa, 325, 163 N. W., 224; Abbott v. Thorne, 34 Wash., 692, 76 P., 302, 65 L. R. A., 826, 101 Am. St. Rep., 1021; Luby v. Bennett, 111 Wis., 613, 87 N. W., 804, 56 L. R. A., 261, 87 Am. St. Rep., 897.”

It, therefore, appears from the evidence that the defendant had probable cause to consider its rights so invaded as to justify resort to a court of equity in order that further invasion of such rights might be prohibited; that the defendant was not prompted by specific malice in instituting such proceeding; that it acted throughout its entire procedure under the advice of an attorney not connected with defendant except as its legal counsel; that the defendant made a full and fair disclosure of all facts necessary for an opinion by its attorney upon the legality of proposed action; that there being probable cause to believe its rights invaded, defendant cannot be charged with implied malice; and that there being no seizure of property or arrest of the. person, and the temporary restraining order being granted, only after notice and full hearing, no fraud, false statements or misrepresentation being chargeable against the defendant in obtaining the restraining order, such civil suit does not come within the exceptions to the general rule denying the right to maintain an action for malicious prosecution based upon the institution of a civil action.

For these reasons, the motion for judgment non obstante veredicto should have been granted, and the judgment for the defendant, which the Court of Common Pleas should have entered, may be entered here.

Judgment reversed.

Hildebrant, J., concurs.

Matthews, J., concurs in judgment.

Matthews, J.,

concurring. It seems clear to me that this judgment must be reversed. Manifestly, it is excessive and against the weight of the evidence. My hesitancy has been as to whether final judgment should be rendered for the defendant by this court, but I have concluded that it should be. That conclusion is based on my opinion that as the temporary injunction and order of contempt were not made ex parte, but only . after notice and hearing at which the plaintiff had full opportunity to present his side, the decision favorable to defendant furnished no basis for an action for malicious prosecution.

The elements of an action for wrongful initiation of a civil proceeding, as stated in 3 Restatement of Torts, 440, Section 674, are:

‘ ‘ One who initiates or procures the initiation- of civil proceedings against another is liable to him for the harm done thereby, if (a) the proceedings are initiated (i) without probable cause, and (ii) primarily for a purpose other than that of securing the adjudication of the claim on which the proceedings are based, and (b) except where they are ex parte, the proceedings have terminated in favor of the person against whom they are brought.”

And “ex parte” as used in the rule is defined in the comment on page 445 as: “Proceedings are ex parte when relief is granted without an opportunity for the person against whom the relief is sought to be heard. ’ ’ And the necessity of a favorable decision, except where the order is made ex parte, is made clear by the rule that it is conclusive of probable cause, even though subsequently reversed and a contrary judgment finally rendered. 3 Restatement of Torts, 447, Section 675.

As the facts relating to the circumstances under which the temporary restraining order and order of contempt, were admitted, I think it follows that' there was no issue of fact to be submitted to the jury, and the trial court should have held as a matter of law that the plaintiff had failed to prove an essential element of his case.

I do not believe that the court could hold as a matter of law that acting upon the advice of counsel was a defense. The burden of -proving all the essential elements of this defense rested upon the defendant. For a shield to exist, many elements must be present. 3 Restatement of Torts, 416, Section 666. And the existence of these elements becomes an issue of fact, dependent, as in this case, upon the credibility of witnesses. In the case at bar the existence of the elements was dependent upon the credibility of one witness, as the attorneys did not testify. The issue of credibility could not be assumed by the court, even though there was no witness to the contrary.

The issue of probable cause in a malicious prosecution action is no different from any other issue of fact in Ohio. The court states the rule of law to guide the jury in the same way it does in any other type of case.

In Ash v. Marlow, 20 Ohio, 119, 129, the court said:

“There is no force in the objection that the judge did not instruct the jury that the facts relied on by defendants below, did, or did not amount to probable cause. ‘Probable cause,’ is a mixed question of law and fact; and if the facts are contested, the court must leave them to the jury with instructions as to what is ‘probable cause.’ ”

And this early decision was emphatically adhered to in Pennsylvania Rd. Co. v. Hobbs, 96 Ohio St., 584, 118 N. E., 1085.

I do not think the court has the power to decide in this case that the advice of counsel was conclusively proven, so as to leave only the question of law, and that a finding by the jury of lack of probable cause would have been manifestly against the weight of the evidence even in the absence of a decision against the plaintiff upon hearing after notice. The fact that the defendant acquired no title to the real estate by virtue of its agreement with the University of Cincinnati did not necessarily preclude it from having a cause of action against plaintiff. It had a contract with the university which gave it rights against the university and against others who under certain circumstances interfered with those contractual rights. Furthermore, these personal rights did relate to real estate and the distinction between a personal right called a license, and a proprietary right is not so clear or so universally recognized even by lawyers and judges as to justify any one in saying that a mistake of one for another is wholly unjustified.

For the reason that the plaintiff failed to prove the essential element of a favorable termination of the prior proceeding, I concur in entering final judgment for the defendant.


author: Hildebrant, J.

text:
    Greenfield, Admr., Appellant, v. The Aetna Casualty & Surety Co. et al., Appellees. Greenfield et al., Appellants, v. The Aetna Casualty & Surety Co. et al., Appellees.
    (Nos. 876 and 877
    Decided May 4, 1944.)

      Mr. C. W. Elliott, for appellants.

      Mr. Fred J. Schatzmann, for appellees.
   Hildebrant, J.

These appeals are on questions of law and fact from decrees in two cases, denying reformation or, in the alternative in the second case, cancellation of certain releases given in connection with a case of wrongful death.

The.two cases are by agreement submitted together upon the record made below where most of the facts are either agreed to through the pleadings or by stipulation and the only witnesses being William Greenfield and Ruth Greenfield, the plaintiffs, whose testimony is undisputed.

The first case seeks, in the first cause of action, to reform a certain release executed by plaintiff, William Greenfield, on the ground of mutual mistake, and, in the alternative in the second cause of action, to reform because of inequitable conduct amounting to misrepresentation or fraud.

The second case, wherein William and Ruth Greenfield, as individuals, next of kin, and sole heirs at law of their deceased son, are plaintiffs, seeks, .in the first cause of action, cancellation of a release for mutual mistake, and, in the alternative in the second cause of action, seeks cancellation for inequitable conduct amounting to fraud or misrepresentation and also prays in the alternative for reformation if cancellation be not the proper remedy.

The 12-year-old son of the Greenfields, while riding his bicycle, was killed by striking his head against a truck of the Middletown Sand & Gravel Company, while the operator thereof, an employee of such company, driving in the same direction as the boy, was turning the truck across the path of the boy at the intersection of Bellemonte and Central avenues in the city of Middletown.

At the time of the death, The Aetna Casualty & Surety Company had issued a policy of insurance to the gravel company, undertaking to pay all damages due to negligent operation of the truck.

On October 15, 1936, the surety company, acting for itself and the insured company, offered in settlement of any claim against the gravel company, the amount of $384, equal to the undertaker’s bill for burial of the boy, which offer was accepted. On October 16, 1936, William Greenfield, as administrator of the boy’s estate, instituted the statutory probate proceedings for authority to accept the settlement which was approved and done according to law.

Thereupon, the administrator executed and delivered to the gravel company the following release:

“Know all men by these presents, that I, William Greenfield, administrator of the estate of Robert Greenfield, deceased, for the sole consideration of three hundred and eighty-four dollars and no/100 dollars, to me in hand paid by The Middletown Sand & Gravel Company have released and discharged, and by these presents do for myself, my heirs, executors, administrators and assigns, release and forever discharge the said The Middletown Sand & Gravel Company and all other persons, firms or corporations from all claims, demands, damages, actions, or causes of action, on account of bodily injuries and/or death, and/or damage to property resulting, or to result, from an accident to Robert Greenfield which occurred on or about the 18th day of September, 1936, by reason of a collision, between Robert Greenfield, who was riding a bicycle' and a truck operated by Iienry Judd, employee of the said The Middletown Sand & Gravel Company, at the corner of Bellemonte street and Central avenue, in the city of Middletown, Butler county, Ohio, and of and for all claims or demands whatsoever in law or equity, which I, my heirs, executors, administrators, or assigns can, shall or may have by reason of any matter, cause or thing whatsoever prior to the date hereof.
“It is understood and agreed that this is a full and final release of all claims of every nature and kind whatsoever, and releases claims that are known and unknown, suspected and unsuspected.
“In witness whereof, I have hereunto set my hand and seal this 22 day of October, 1936.
“In the presence of William Greenfield,
“Agnes Lauderback
“J. P. Royer.
Administrator of the estate of Robert Greenfield, deceased.”

Contemporaneously with the execution of the foregoing release, the Greenfields, as individuals, joined in the execution and delivery of a similar release, as follows:

“Know all men by these presents, that we, William Greenfield and Ruth Greenfield, for the sole consideration of three hundred and eighty-four dollars and no/100 dollars, paid to William Greenfield, administrator of the estate of Robert Greenfield, deceased, paid by The Middletown Sand & Gravel Company, have released and discharged, and by these presents or for myself, my heirs, executors, administrators and assigns, release and forever discharge the said The Middletown Sand & Gravel Company and all other persons, firms or corporations from all claims, demands, damages, actions, or causes of action, on account of bodily injuries and/or death, and/or damage to property resulting, or to result, from an accident to Robert Greenfield which occurred on or about the 18th day of September, 1936, by reason of a collision between Robert Greenfield, who was riding a bicycle and a truck operated by Henry Judd, employee of the said The Middletown Sand & Gravel Company, at the corner of Bellemonte street and Central avenue, in the city of Middletown, Butler county, Ohio, and of and for all claims or demands whatsoever in law or in equity, which I, my heirs, executors, administrators, or assigns can, shall or may have by reason of any matter, cause or thing whatsoever prior to the date hereof.
“It is understood and agreed that this is a full and final release of all claims of every nature and kind whatsoever, and releases claims that are known and unknown, suspected and unsuspected.
“In witness whereof, we have hereunto set our hands and seal this 22 day of October, 1936.
“In the presence of William Greenfield,
“Agnes Lauderback
“J. P. Royer. , Ruth Greenfield.”

Subsequently, the administrator sued the city of Middletown for damages, alleging the defective condition of the street to be the cause of death, and the city by answer sets up the releases as a defense.

William Greenfield, after testifying as to the alleged defective condition of 'the street, testified as to the settlement with the gravel company; that one Royer, adjuster for the surety company, contacted him about a settlement of any possible claim further investigation might develop against the gravel company; and that Royer, however, expressed the belief that said company was not liable.

Plaintiff William Greenfield stated he would gladly accept a settlement because he didn’t feel justified by the facts in holding the gravel company responsible. Royer agreed to pay the amount of the funeral bill, provided the surety company approved, and described the payment as sympathy money. It appears both plaintiff William Greenfield and Royer viewed the case as one of a very doubtful claim against the gravel company and considered the settlement as insurance against a law suit, wherein the surety company was buying its peace rather than offering compensation for damages. Having obtained approval of the surety company, in about two weeks, Royer took plaintiffs before his own attorney who guided the parties through the appropriate probate procedure and prepared the releases herein involved, which were executed by the plaintiffs in the office of Royer’s attorney. Plaintiffs did not read the releases nor were they read to them. These transactions occurred over a period of approximately a week and plaintiffs were not represented by an attorney. William Greenfield further stated that he did not know the contents of the releases until months- later; that nothing was ever said by any of the parties about releasing any one other than the gravel company and its insurer; that the sole intent was not to release any one else; and that he has never received anything from the city of Middletown. It appears William Greenfield did not mention his intention of suing the city. It also appears that William Greenfield was employed as a foreman in a factory, and that he and his wife were lifelong residents of Middletown where they had attended the public schools.

No evidence was offered by defendants.

Plaintiffs claim that the city is responsible'by reason of the defective condition of its street; that the gravel company settled voluntarily, as neither party felt it was responsible; that it was the intention of b.oih parties to release the gravel company only; that the execution of the broad printed form, without knowledge of its all-inclusive language, was a mutual mistake, that, therefore, the'instrument should be reformed to conform to the facts and the agreement of the parties arrived at prior to its execution; and that the second release should likewise be reformed or cancelled.

Defendants deny any mutual mistake, fraud or misrepresentation, and claim plaintiffs are not entitled to the relief prayed for, because of no showing of mutual mistake, fraud or misrepresentation, and because of inexcusable negligence on the part of plaintiffs in the execution of the releases without reading them.

This court finds no fraud in the transaction.

While counsel for both parties have furnished the court voluminous briefs covering a wide range, the court feels that the application of a few general and well settled principles of the law of reformation and release will enable it to properly decide the cases.

In 35 Ohio Jurisprudence, 145, Section 2, “reformation” is defined as the remedy afforded by courts possessing equitable jurisdiction to -the parties and the privies of parties, to written instruments which import a legal obligation to reform or rectify such instruments whenever they fail, through fraud or mutual mistake, to express the real agreement or intention of the parties. It is further stated that equity will afford a remedy by way of reformation of a written instrument to make it conform to the real agreement or intention of the parties, when there is no adequate remedy at law. Equity reforms an instrument but does not make one, and before reformation may be had, it is essential to show that a definite intention on which the minds of the parties had met pre-existed the instrument in question and that the mistake or fraud ensued in its execution. 35 Ohio Jurisprudence, 169, Section 27, reads in part:

“The correction of mistakes is one of the peculiar jurisdictions of a court of equity, and it may be stated as a general principle that courts possessing and exercising general equity powers and jurisdiction will correct or relieve against mistakes by a decree ordering the reformation of an instrument into which the error or mistake has crept whenever it is clearly manifest that a mistake has been made, that all parties concerned intended otherwise, and that the probable effect of the mistake will be an injury to one of the parties interested, and its correction will be no wrong to either.”

The record clearly shows that the surety company’s objective in having its representative contact plaintiffs in the first instance was solely to obtain a release of its insured, the gravel company, and thereby purchase its peace from any possibility of litigation. Plaintiffs testified that their sole intent was to release only the gravel company. The probate proceedings aptly illustrate that the minds of the parties met on this one intention, and the only authority asked for or given was a settlement and release of the gravel company alone. Whatever happened after that during the reduction of the release of the gravel company to writing different from expressing that intent alone and expressing something more or something less, would be by way of mutual misunderstanding.

It appears to the court that the printed forms were used solely as a convenience and that neither party was conscious at the moment of the ineptness of the printed forms to accurately express the pre-existing agreement. Whatever unexpressed intentions were in the minds of the different parties, they had agreed to a release of the gravel company only and if the terms of the printed forms were too broad, they were both mistaken as to their accuracy. If it is urged that the minds of the parties never met because the surety company’s representative intended the use of the written form and was familiar with the scope of its language, but didn’t inform the plaintiffs thereof, the fact remains that he proposed to settle for the gravel company alone and plaintiffs made it clear that such was their sole intention, so that the agreement was confined to that alone at the time of reducing it to writing and it would be an admission of inequitable conduct to urge that the minds never met at that point. If the knowing and informed use of the printed forms containing language transcending the pre-existing agreement, would amount to inequitable conduct under the circumstances here, surely the court cannot be called upon to supply the inequity or iniquity to the releases by confirming them as mistakenly or inadvertently worded. The court cannot make a different contract for the parties, either by abortive reformation or refusal to reform a writing which fails to express the pre-existing agreement on which the minds did meet, thus maintaining a different written agreement than intended.

As to the negligence of the plaintiffs in limiting. the releases, whatever superiority of position between the parties was held by' defendants and the general rules of construction of contracts against the drawer thereof would apply.

In 35 Ohio Jurisprudence,. 156, Section 12, it is' stated:

“In view, however, of the fact that mistakes rarely occur in the absence of some negligence and of the further fact that to deny reformation of a contract would often lead to injustice, the courts not only hold, but seem disposed to give the fullest scope, to the rule that negligence in executing a contract which is, under the circumstances, excusable will not prevent reformation to make the contract conform to the intention of the parties.”

Under all the circumstances here, the fact that plaintiffs relied on defendants to prepare proper and accurate releases of the gravel company only and executed the same without reading them, the court deems excusable, since refusal of reformation here would lead to injustice to plaintiffs and the granting of the relief in no wise affects the status of the gravel company and its insurer.

45 American Jurisprudence, 710, Section 51, reads in part:

“Courts of equity will restrict a general release to the thing or things intended to be released. As on a release of all demands, when some particular demand was in view, the court of chancery will not allow the releasee to take advantage of the general words to defeat the collection of a demand not then in the minds of the parties. So, too, a court of equity will reform contracts in all cases, on a proper showing that they were so drawn as not to express the intention of the parties, but not where a release was given under a manifest misapprehension of the legal effect of it in relation to the other obligors.”

In view of the foregoing the court considers it unnecessary to comment upon other points referred to in the briefs.

A decree may be presented in each case, reforming the instruments in accordance with the prayer of the petition.

Decrees accordingly.

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


author: Ross, P. J.

text:
    Phillips, Appellee, v. Industrial Commission of Ohio, Appellant.
    (No. 6397
    Decided July 3, 1944.)

      Mr. J.,1. Williams and Mr. II. P. Karch, for appellee.

      Mr. Thomas J. Herbert, attorney general, Mr. Robert E. Hall and Mr. Edward A. Schott, for appellant.
   Ross, P. J.

The plaintiff was awarded participation in the state insurance fund by the Court of Common Pleas of Hamilton county, Ohio.

The case was tried to the court without the intervention of a jury. The appeal is on questions of law from the judgment of the Court of Common Pleas. The court journalized its finding. A motion for judgment in favor of the defendant, notwithstanding the finding of the court in favor of plaintiff, was made and overruled.

From the evidence, it appears that the claimant on the 21st day of February, 1930, suffered a severe injury to his jaw when the handle of a waste-paper bail-er slipped and struck him in the face. He was confined to a hospital for sixteen days. At the trial, the plaintiff still complained of pain in his jaw, and stated that some of his teeth had been knocked out by the blow from the bailer handle, and the others extracted because of infection in his gums.

Shortly after leaving the hospital, the plaintiff had occasion to visit a grocer. He complained of pain in his jaw and the grocer recommended the use of Jamaica ginger. The plaintiff purchased a small bottle of Jamaica ginger and drank the contents. Shortly thereafter, he became afflicted with a species of paralysis, commonly known as “jake legs,” and the result is that he now walks with two canes.

He applied for and was given compensation on a temporary total basis, to May 4, 1930, and on a temporary partial basis, to March 1, 1942.

The procedural history of plaintiff’s connection with the Industrial Commission is as follows:

“March 20, 1939. An application to modify the award was filed and on February 14, 1940, said application was granted allowing claimant $9 per week on a temporary, partial basis to January 1, 1941.
“March 20, 1940. An application to further consider the claim was filed and on said application on April 26, 1940, the commission ordered that the previous order of February 14, 1940, be modified and ordered the payment of $4 per week on a temporary, partial basis to January 25, 1941, and further finding that the disability resulting from ‘Jake’ paralysis is not a result of the injury for which the claim was filed.
“June Í, 1940. Plaintiff filed an application to modify and for a rehearing, basing said application upon the order of April 26, 1940. The application to modify was denied on November 1, 1940, and the application filed on June 1, 1940, for a rehearing was on November 20,1940, dismissed because the claim had been considered since the order of April 26, 1940.
“Nov. 27, 1940. Plaintiff filed an application for a rehearing and on December 16, 1940, the said application was dismissed for the reason that the order from which said application was filed is not appealable and does not deny jurisdiction of the claim.
“July 21,1941. Plaintiff filed an application to modify the award and on October 30, 1941, the commission dismissed the application 'for modification filed July 21,1941, and s.et aside its order of June 1,1940, wherein the commission dismissed the application for a rehearing and then granted plaintiff a rehearing and assigned the claim for the taking of testimony.”

The plaintiff offered his testimony on rehearing on February 5,1942, at which time he testified that he was receiving compensation from the Industrial Commission and that his only desire was to secure more compensation.

“Oct. 26, 1942. The commission denied claimant’s right to participate in the fund after rehearing of this action for the reason that proof on file does not show that claimant’s present disability is due to the injury of February 21, 1930.”

It is the contention of the commission that this procedure does not present a basis for jurisdiction in the Court of Common Pleas to review the conclusions of the Industrial Commission on rehearing, for the reason that it had no jurisdiction over the subject matter of the action.

It is clear that the evidence presented on rehearing and before the Court of Common Pleas shows that at the present time the claimant is almost entirely incapacitated to do any kind of work. It is also clear that the commission refuses to recognize this present incapacity as due to the original injury received, when claimant was struck on the jaw by the handle of the bailer.

The proceeding in the Court of Common Pleas is based upon the action of the commission upon claimant’s application to modify a previous award filed July 21, 1941.

As far as the record shows, the commission has refused to exercise jurisdiction, although it did grant a rehearing of its action upon the application to modify the award. The entry of the commission, made October 26, 1942, reads:

“This day this claim comes on to be heard ^on the transcript of testimony and evidence on rehearing and report of the referee, and was considered by the commission.
“On consideration thereof, the commission finds:
“It is ordered that the claim be disallowed on rehearing, for the reason that proof on file does not show that claimant’s present disability is due to his injury of February 22,1930.”

The effect of this final order of the commission was to deny claimant further participation in the workman’s compensation fund, for the reason that his present disability is not due to the original injury. If it is, he is entitled to participate. If it is not, he is not entitled to participate. A question similar to that here considered has been passed upon by this court. In Logsdon v. Industrial Commission, No. 869, Court of Appeals for Butler county, decided by this court on November 27, 1943, and certified to the Supreme Court (143 Ohio St., 508), at least two of the-judges of this court, while disagreeing upon other matters, were unanimous in their conclusion upon the question of jurisdiction, as expressed in the first paragraph of the syllabus in the case of Furnis v. Industrial Commission, 71 Ohio App., 146, 45 N. E. (2d), 782, as follows:

“A finding by the Industrial Commission upon rehearing under Section 1465-90, General Code (111 Ohio Laws, 227), that a claim for compensation be disallowed for the reason that claimant’s present disability is not the result of the injury constitutes, in law, a finding that the commission had no authority to inquire into the extent of disability or amount of compensation claimed, and was an appealable order.”

The Logsclon case was certified for conflict with the Furnis case because of the submission of the issue of permanent and total disability to the jury.

To say that the commission exercises jurisdiction when'it emphatically states it does not and can not, because the present condition of claimant is not due to the injury, is to ignore the effect of the final order. The commission has denied jurisdiction, because of the positive finding that the claimant is not entitled to compensation for his present condition. If the commission had awarded claimant any compensation for his present condition, then the Court of Common Pleas could have had no jurisdiction of the subject matter of the appeal.

Now is claimant’s present condition due to the original injury? Here is what he says:

“Q. You have a condition in your legs, haven’t you, Mike? A. Yes.
“Q. Can you state when that occurred? A. Yes, that occurred coming out of the hospital. See I coming to the grocery store; grocer man says, ‘What is the matter, Mike?’ I told him ‘busting my mouth.’ He says, ‘I got Jamaica ginger, you try — may be you swell out.’ I am taking that bottle of Jamaica ginger and bring me home, put him little bit water and drink. The next day I come to the grocery store. He says, ‘You better or no?’ ‘That Jamaica ginger no good for me at all’ I told. He says, ‘Well if no good for you at all quit. ’ I says, ‘ Okeh. ’ After the 27th of May I feel my feet bad.
“Mr. Schott. Motion to strike answer.
“The Court. Strike it all except ‘yes, that occurred coming out of the hospital. ’
“Mr. Karch. I except to that rule and proffer the answer.
“Q. Were you suffering pain at that time when you took this Jamaica ginger?
“Mr. Schott. Objection.
“The Court. Sustained.
“Q. Were you suffering pain?
“Mr. Schott. Objection.
“A. No, no suffering pain.
“Q. I don’t believe you understood the question. Were you suffering pain when you talked to the grocer man?
“Mr. Schott. Objection.
“The Court. Sustained.
“Q. Did you think that that would help you when he told you to drink that?
“Mr. Schott. Objection.
“The Court. Sustained.
“Mr. Karch. Exception and proffer.
“A. Why sure.
“Q. How much did you drink?
“Mr. Schott. Objection.
‘ ‘ The Court. Overruled.
“Mr. Schott. Exception.
“A. One bottle.
“Q. How big a bottle was it? A. Like my finger, small bottle.
“Q. Small bottle? A. (indicating).
“Referee. Indicating a bottle the size of his first finger.
“Q. Do you have any pain in those legs, Mike? A. No.
“Q. Now, how do you get around, Mike? How do you walk? A. I walk all right.
“Q. And yon use any crutch or cane? A. No, I use ’em cane.
“Q. How many canes? A. Two.”

The court was in error in sustaining the objection to the evidence offered. However, as the judgment was in favor of the claimant, no prejudicial error intervened. We do know the circumstances under which the claimant took the ginger. They present an instance commonly known to all of us, the taking of friendly nonprofessional advice for various ailments. Use of it many times is good, sometimes, bad and injurious.

No question of negligence is involved here. The problem is one of good faith and causation. It cannot be seriously suggested that the condition now endured by claimant was the result of a self-inflicted injury. The claimant voluntarily took the Jamaica ginger. Whether he was mistaken as to the manner in which it was to be used, or in the effect, is immaterial. He took it to i’elieve the pain in his jaw caused by the injury suffered when he was struck by the handle of the bailer. Suppose he had used morphine for the same purpose and died. Can it be logically claimed that any such final results did not have a causal origin in the original accident 1

Our conclusion is that the claimant’s present total incapacity is due directly to the original injury; that he is entitled to an award of compensation; and that the judgment of the Court of Common Pleas should be affirmed.

Judgment affirmed.

Hildebrant, J., concurs.

Matthews, J., dissents.


text:
    Schaffer, Appellant, v. Schneider, Appellee.

      (No. 885
    Decided November 10, 1944.)

      Mr. Arnold G. Schaffer, for appellant.

      Mr. Herbert Walsh, for appellee.
   Ross, P. J.

Reference to the pleadings and journal entries of the Municipal Court of Hamilton shows the following incidents to have occurred.

The statement of claim contains statements showing a cause of action in the plaintiff in forcible entry and detainer, and a cause of action for money only. The pleading contains a prayer for relief under both causes of action. The facts alleged, if true, permitted a recovery in excess of $100, the judgment in fact being for $139.56.

An answer filed is in effect a general denial.

After trial to the court without a jury, on April 25, 1944, an opinion of the court was filed and on the same day judgment was entered upon the journal of the court in favor of plaintiff for $139.56, and restitution of premises refused. On April 27, 1944, motion for a new trial was filed and overruled. No other entry, judgment or final order appears among the papers or in the transcript of docket and journal entries.

By virtue of the provisions of Sections 1579-95 and 1579-113, General Code, all laws governing the Court of Common Pleas, especially with reference to motions for new trial, govern the Municipal Court of Hamilton, so far as applicable.

The instant action was one in which the parties would have been entitled to a trial by jury in the Municipal Court (Sections 10324 and 11379, General Code), it being immaterial whether the case be one within the exclusive jurisdiction of a justice of the peace or the concurrent jurisdiction of the Common Pleas Court by virtue of the statutes conferring jurisdiction upon the Municipal Court of Hamilton. Sections 1579-92, 1579-92a, 10224 and 10447, General Code.

The rule, pronounced in Boedker v. Warren E. Richards Co., 124 Ohio St., 12, 176 N. E., 660, is, therefore, applicable.

A motion for a new trial having been made and entered after the last action of the court journalized, no final order or judgment appears from which an appeal on questions of law might be taken to this court.

For this reason, there being no judgment or final order subject to review by this court, the appeal, not being properly directed to any judgment or final order of the Municipal Court of Hamilton, will be dismissed sua sponte.

Appeal dismissed.

Ross, P. J., Hildebrant and Matthews, JJ., concur in the syllabus and opinion.


author: Stevens, P. J.

text:
    The State, ex rel. City of Akron, v. Slusser, Mayor, et al.
    (No. 3661
    Decided April 27, 1944.)

      Mr. Clair M. Trunich, for plaintiff.

      Mr. Clyde F. Beery, Mr. W. E. Pardee and Mr. W. J. Laub, for intervening petitioner.

      Mr. Roy E. Browne, director of law, Mr. Nathan Koplin, Mr. Alva J. Russell, prosecuting attorney, and Mr. W. E. Spencer, for defendants.
   Stevens, P. J.

This action in mandamus, filed originally in this court, upon demand of a taxpayer of the city of Akron, seeks the issuance of a writ of mandamus requiring the defendants “to amend and revise the budget” of the city of Akron, “and to make a levy for the purposes set forth in said budget other than •for the payment of bonds, interest and taxes duly authorized by vote of the electors of said city * * *, within the limitation” (charter) “of seven and five-tenths (7.5) mills,” and for other relief.

An intervening petition has also been filed by leave of court, wherein the same relief sought in the original petition is requested.

The answer of the defendants, after admitting many of the allegations of the petition and the intervening petition, alleges that the budget had been prepared and adopted in conformity to existing legal requirements, “and that the relator nor anyone else protested said annual appropriation measure there and then made, and that the relator or others similarly situated are estopped from now protesting said budget or appropriation measure. ’

The answer then sets out in detail the rates, amounts and uses of the levy as modified by the city council, showing what part was inside and what part outside the charter limitation of 7.5 mills, and then alleges that “the action taken by the budget commission herein, following the action taken by the city council of Akron in modifying and adopting the same, was pursuant to law and authority by placing outside the seven-and-one-half-mill limitation an amount equal to approximately 3.15 mills for the reason that the same represented a pre-existing debt within the meaning of the Constitution and the laws of the state of Ohio, said debt having been incurred lawfully and legally subsequent to December 31, 1920, and prior to 1934.” .. ¡

The answer then continues:

“Further answering, these respondents say that the amendment to the Akron city charter hereinbefore referred to and set out as Sections 86a, 86b and 86e, was enacted and became effective on November 6,1928, and that for the year 1929 when the said seven-and-one-half-mill levy first became available to the taxing authorities, there was available as a tax base taxable property in the city of Akron the sum of $422,099,188, and that for the year 1930 there was available in a like manner the sum of $432,042,580.
“By reason of the laws passed subsequent to January 1, 1931, when Article XII, Section 2, became effective, the personal property list of the city of Akron was decreased, and the taxable property on the general tax list of the city of Akron does not now provide a base which is equivalent to the base in existence prior to the effective date of the said constitutional amendment and the schedule thereto attached. The city of Akron is therefore entitled to levy outside of said seven-and-one-half-mill limitation the amount required to equalize any reduction in the amount of taxable property available for such levies or the rate imposed upon such property effected by such laws. The said schedule to the constitutional provision herein-before referred to reads as follows:
“ ‘If the votes for the proposal shall exceed those against it, the amendment shall go into effect January 1, 1931, and original Sections 2 and 3 of Article XTT of the Constitution of the state of Ohio shall be repealed and annulled; but all levies for interest and sinking fund or retirement of bonds issued, or authorized prior to said date which are not subject to the statutory limitation of fifteen mills on the aggregate rate of taxation then in force, and all tax levies provided for by the conservancy act of Ohio and the sanitary district act of Ohio, as said laws are in force on said date, for the purposes of conservancy districts and sanitary districts organized prior to said date, and all tax levies for other purposes authorized by the General Assembly prior to said date or by vote of the electors of any political subdivision of the state, pursuant to laws in force on said date, to bo made outside said statutory limitation for and during a period of years extending beyond said date, or provided for by the charter of a municipal corporation pursuant to laws in force on said date, shall not be subject to the limitation of fifteen mills established by said amendment; and levies for interest and sinking fund or retirement of bonds issued or authorized prior to said date, shall be outside of said limitation to the extent required to equalize any reduction in the amount of taxable property available for such levies, or in the rale imposed upon such property, effected by laws thereafter passed’ (italics supplied), with the result that there was available for taxation purposes in 1931 for 1932 collections $332,163,776, said reduction being put into effect by authorities other than the city of Akron taxing authority, first, by the removal from the taxable property available for levying taxes, $95,407,760 of personal property pursuant to state law and replacing said personal property tax base loss by including $46,-619,456 of intangible property as provided for by state law. The remaining reduction was effected by the action of the county auditor in reducing such valuation on the taxable duplicate of the city of Akron real estate by an amount equal to approximately $54,500,000; that by reason of the foregoing action taken by the state of Ohio pursuant to law in removing the personal property, these respondents have the duty and obligation pursuant to law to levy an amount necessary to equalize the loss of personal property; said respondents did equalize, but not to the full extent as provided by law, which would have allowed an additional levy of 1.33 mills, but did in fact levy only to the extent needed to meet outstanding obligations lawfully incurred between the years 1929 and 1931, inclusive.”

The cause was submitted to the court upon an agreed statement of facts. From the agreed statement of facts it appears that:

1. Municipal bonds in the amount of $673,000 were issued by the city of Akron prior to the enactment of Sections 86a, 86b and 86c of the Charter of the city of Akron, on November 6, 1928, upon which bonds $202,-619 of interest has accrued, making a total liability thereon of $875,619 for principal and interest.

2. Municipal bonds in the amount of- $55,000 were issued by the city of Akron between November 6,1928, and January 1, 1931, upon which bonds interest of $21,994 has accrued, making a total liability thereon of $76,994 for principal and interest. In addition thereto, bonds in the amount of $7,000 were issued October 1, 1931, upon which interest in the sum of $1,330 has accrued, making a total of $8,330 owing on bonds issued after January 1, 1931.

3. All of the above bonds were limited tax bonds, and were issued by action of council and without a vote of the people of said city.

4. Prior to November 6, 1928, there was no charter limitation upon the amount of bonds which might be issued by the city of Akron.

5. On November 6, 1928, Sections 86a, 86b and 86c, of the Charter of the city of Akron became effective by vote of the people. Those sections are as follows:

‘‘Section 86a. The,aggregate amount of taxes that may be levied by the taxing authority of the city on any taxable property in the city of Akron without a vote of the people shall not in any one year exceed seven and five-tenths (7.5) mills on each dollar of tax valuation of said city. 'Of said total maximum levy, an amount shall annually be levied sufficient to pay the interest, sinking fund and retirement charges on all bonds and notes of the city of Akron heretofore or hereafter authorized to be issued without the authority of the electors, which levy shall be placed before and in preference to all other levies ,and for the full amount thereof. The remaining portion of said maximum levy, or such part thereof as may be necessary, may be levied annually for the current operating expenses of said city. Of said current operating expenses, fifty-five one-hundredths (.55) of a mill may be levied only for the purpose of the University of Akron, and at the request of the board of directors of said university, all, or the part requested of said rate, shall be levied. Amounts certified under the laws of the state as necessary for interest, sinking fund and retirement purposes, shall not be subject to change by council.
“ Section 86b. The council shall annually levy outside the limitations provided in this charter and the limitations provided by general law, a sufficient sum to pay the interest, sinking fund and retirement charges on all bonds and notes of the city of Akron heretofore or hereafter lawfully issued, the tax for which by general law or by this charter has been or shall be authorized to be levied outside of tax limitations, including the expense incident to the management of such sinking fund. Amounts certified under the laws of the state -as necessary for interest, sinking fund and retirement purposes shall not be subject to change by council.
“Section 86c. Taxes may be levied outside of the limitations of section 86a of this charter upon approval of a majority of electors of the city of Akron voting thereon at a November election in the manner prescribed by general law for voting levies outside the statuto ry limitations. ’ ’

6. On July 13, 1943, a budget for the city of Akron was adopted for the year 1944, by the council, designated Resolution No. 259-1943, which budget among other things provided for a levy to pay for the redemption and servicing of the bonds mentioned in items 1 and 2 above, outside of the 7.5 mill charter limitation.

7. There was a decrease in the personal property tax base available to the city of Akron for tax purposes in 1932 of $48,788,304.

The question presented is well stated by counsel for the intervenors, as follows: “Is the levy by the council of approximately'3.15 mills beyond the charter limitation of 7.5 mills on each dollar of tax valuation, for the fiscal year 1944, without the approving vote of the electors, for payment of bonds in the aggregate amount of $961,558, including interest, issued after January 1, 1920, by authority of the council, without obtaining the approval of the electors therefor, a lawful levy?”

In reaching an answer to the question presented, it must be remembered that the expediency of council’s action may not be considered by this court, but only the question as to whether or not the council may lawfully do what it is attempting to do.

Let us first consider the defense of estoppel pleaded in the answer of the defendants. It is true, as to the budget, that while Section 86 of the Charter of the city of Akron provides “a public hearing shall be given before final action is taken by the council, ’ ’ neither the charter nor any statute of the state of Ohio provides that unless a taxpayer protests or objects to the budget he shall be estopped to challenge the tax rate based upon the budget. And in the absence of such legislation there appears to -be no lawful basis upon which to sustain the defense of estoppel pleaded by the defendants. Even without objection to the budget, after notice of the public hearing, a taxpayer may challenge the proposed tax rate upon the ground that it is unlawful. The defense of estoppel does not seem to us to be tenable in this situation.

It is asserted by counsel for the defendants, both in brief and in argument, that as to the bonds issued prior to November 6, 1928, that being the date when the seven-and-a-half-mill charter tax limitation became effective, there was in force at the time of their issuance no limitation, either constitutional or charter.

An examination of the history of the several limitations upon taxation by municipalities may be helpful.

The Constitution of Ohio, by Article XIII, Section 6, has vested the General Assembly with power to restrict the authority of municipal corporations on the subject of taxation and financial operations generally, as follows:

“The General Assembly shall provide for the organization of cities, and incorporated villages, by general laws, and restrict their power of taxation, assessment, borrowing money, contracting debts and loaning their credit, so as to prevent the abuse of such power.”

The Constitution, in Article XVIII, Section 13, being a part of the “home rule” amendment, contains this provision:

“Laws may be passed to limit the power of municipalities to levy taxes and incur debts for local purposes, and may require reports from municipalities as to their financial condition and transactions, in such form as may be provided by law, and may provide for tbe examination of tbe vouchers, books and accounts of all municipal authorities, or of public undertakings conducted by such authorities.”

In pursuance of this first constitutional grant of authority to the Legislature (Article XIII, Section 6), the Legislature on May 10, 1910, enacted the first 10-mill “over-all” limitation law, as Section 5649-2 et seq., General Code. By the provisions of Section 5649-3a, General Code, the aggregate of all taxes which might be levied by a municipal corporation on the taxable property in the corporation, for corporation purposes, was limited in any one year to 5 mills. This provision continued in full force and effect until, by the act of April 13, 1927, which act became effective August 11, 1927, it was repealed. On August 11,1927, there became effective the act passed April 13, 1927, which substituted for the previous act of May 10, 1910, a 15-mill over-all limitation, that section being numbered Section 5625-2, General Code; among other provisions, this act provided that the county budget commission should apportion and adjust the “overall” rate within the 15-mill limitation, among the various taxing units within the county. Effective January 1, 1931, the constitutional amendment of Article XII, Section 2, which provided an over-all limitation of 15 mills, was adopted. That article and section were again amended, effective January 1, 1934, and in this latter amendment the over-all limitation was reduced from 15 to 10 mills. That is the amendment which is still in force.

From the foregoing history on tax limitations, both statutory and constitutional, it appears that bonds issued by the city of Akron prior to November 6, 1928, the effective date of the 7.5-mill charter limitation, were issued either subject to the 5-mill statutory municipal limitation, or to the 15-mill statutory limitation which became effective August 11,1927, and that bonds issued after the effective date of said charter limitation, were issued subject to the charter limitation, and to the 15-mill statutory limitation with its apportionment provision, which latter limitation continued in effect until January 1, 1931; and it further appears that bonds issued after January 1, 1931, were subject to the charter limitation and to the constitutional limitation of 15 mills until January 1, 1934, at which time the constitutional limitation was reduced from 15 to 10 mills.

It is conceded by counsel that, of the $961,549 of bonds, including interest, attempted to be paid through levies outside the 7.5-mill charter limitation, $875,619, including interest, were issued between January 1, 1920, and November 6, 1928, the date when the charter limitation became effective, and $85,324, including' interest, were issued' between November 6, 1928, and January 1, 1934.

It is apparent that, as to such of the bonds as were subject to the 5-mill statutory limitation (the amount of which does not appear), there was no impairment of the contract between the bondholders and the city by the enactment of the 7.5-mill charter limitation, because the charter provision permitted a levy by the city at a higher rate than had been permissible under the 5-mill statutory limitation on the city’s right to tax.'

As to such of the bonds as were issued between November 6, 1928, and January 1, 1931, the 15-mill statutory limitation with the apportionment feature thereof (Section 5649-10&, General Code, now Section 5625-14, General Code), resulted, according to exhibit E attached to the agreed statement of facts, in a tax rate, up to 1934, never greater, within the limitation pertaining, than 5.46 mills.

It is therefore likewise apparent that the charter limitation of 7.5 mills, as to the bonds issued between November 6, 1928, and January 1, 1931, accomplished no impairment of the contract existing between the city and the bondholders, because it permitted a levy by the city at a rate greater than theretofore had been permissible (Section 5649-10&, General Code, now Section 5625-14, General Code).

It is urged by counsel for the defendants that the $875,619 of bonds and interest sought to be levied outside the charter limitation constitute pre-existingdebts of the city, and that the cases of State, ex rel. Ohio Natl. Bank of Columbus, v. Village of Hudson, 134 Ohio St., 150, 16 N. E. (2d), 266, and State, ex rel. Markel, v. City of Columbus, 139 Ohio St., 351, 40 N. E. (2d), 144, are-controlling in the situation under consideration, because of the pronouncement contained in syllabus 1 of. the Hudson case, which was followed with approval in the Columbus case. That syllabus is as follows:

“1. The inhibitions of Section 2, Article XII of the Ohio Constitution, with respect to tax rate limitations, are directed against new and not against pre-existingdebts.”

The Hudson case, it is revealed from an examination of the original file, dealt with a situation where special assessment bonds were issued by the village for the purpose of funding- notes which had been issued to finance certain street improvements. The debt was contracted at a time when the 15-mill over-all statutory tax limitation was in force, and was sought to be enforced at a time when a 10-mill constitutional limitation was in effect.

The issue of bonds was of such size that the payment of interest and principal as required by the legislation would dissipate the entire tax income of the village from all sources, and in amount would exceed the applicable statutory and later-enacted constitutional limitations.

The notes and the later-issued bonds contained provisions" which recited that no limitation of indebtedness or taxation, either statutory or constitutional, had been exceeded.

When, in a mandamus action instituted by a bondholder to compel the passage of tax legislation which would provide funds with which to pay the principal and interest payments due on said bonds, the village attempted to defend on the ground that such a levy would exceed both the 15- and 10-mill tax limitations of the Constitution of Ohio, the court held that the city was estopped to interpose such defense, and ordered that a writ issue compelling the passage of legislation which would provide funds with which to pay said bonds, even though such legislation would result in taxes which exceeded the statutory 15-mill limitation; and it further held that the 15- and 10-mill amendments to the Constitution of Ohio, had no application to the bonds there under consideration, because said amendments were adopted subsequent to the incurring of the debt.

It is thus apparent that funds with which to pay said bonds in accordance with the requirements of the legislation authorizing their issue, could not be raised within any applicable tax limitations.

In the case here under consideration, however, funds with which to meet all bond requirements for bonds issued by the council, and to be paid from funds raised within the applicable tax limitations, are available for such payments; and such payments are by law made a first charge upon the tax revenues of the city.

True, the allocation of municipal revenues to the liquidation of bond interest and principal .payments, will reduce the revenue available to the city for operating purposes, but such a result does not, in law, justify the levying of a tax outside the limitations, in order that the city may have a greater amount of operating revenue.

Inasmuch as the syllabus of the Hudson case must be read in connection with the facts there presented, we are of the opinion that the case is not authority for the contentions made by counsel for defendants.

The Columbus case, supra, likewise furnishes small comfort to defendants when thoroughly analyzed. There the case dealt with a reduction in the tax limitation after bonds had been previously issued under the limitation in effect at the time of their issuance; and under those circumstances the court said that there was no duty enjoined by law upon the council to place the principal and interest payments thereafter due upon said bonds, within the subsequently-reduced limitation. A demurrer to the petition seeking a writ of mandamus was therefore sustained.

Inasmuch as the $875,619 of bonds issued before the charter limitation became effective (November 6,1928) were issued by council, without a vote of the people to authorize placing them outside the limitation, and inasmuch as those bonds do not constitute a pre-existingdebt within the pronouncement of the Supreme Court in the Hudson and Columbus cases, supra, there seems to us to be no law which would permit the council to levy a tax outside of the charter limitation to pay the principal and interest due thereon.

It is the conclusion of the court that the $875,619 of bonds, issued before the passage of the charter-limitation amendment, without the approval of the voters, must be paid from funds raised within the 7.5-mill charter tax limitation.

As to bonds issued after November 6, 1928, and before January 1, 1931, in the amount of $76,994, principal and interest, the evidence shows that in 1931 there was $95,407,760 of taxable personal property on the duplicate, which, pursuant to state law, was removed therefrom, and in its place was substituted intangible property amounting, in 1932, to $46,619,456, thereby accomplishing a tax base shrinkage of $48,788,304.

In our judgment, it was to compensate for just such a situation, i. e., for inequities which might arise under the application of the constitutional limitation of 15 mills, that the schedule to the amendment of Article XII, Section 2, of the Constitution of Ohio was appended, specifically providing “* * * levies for interest and sinking fund or retirement of bonds issued or authorised prior to said date” (January 1, 1931), “shall be outside of said limitation to the extent required to equalise any reduction in the amount of taxable property available for such levies * * V’ (Italics ours.)

As we construe the wording of the schedule, it provides in the first two paragraphs that bonds issued outside the statutory limitation in effect at the time of their issuance, shall not be subject to the limitation of the constitutional 15-mill amendment.

■ The last paragraph of the schedule can, in our opinion, have application only to bonds issued within the statutory limitation applicable at the time of their issuance, because a construction making said last paragraph applicable to bonds issued outside the limitations would be productive of a conflict between the different paragraphs of the schedule, and would thereby contravene the most elementary rule of statutory construction.

If said last paragraph be construed to have reference to bonds issued within the applicable limitations, such construction harmonizes all paragraphs of the schedule and permits levies for interest and principal due on bonds issued before January 1, 1931, to be made outside the limitation of the constitutional amendment to the extent necessary to equalize the tax loss resulting from a shrinkage of the tax base.

If the constitutional limitation can be thus rendered inapplicable in the situations specified in the schedule, how much more forcibly may the provisions of the schedule be said to apply to the limitation provided by a city charter in like situations.

The city, by legislative action, lost a right to levy taxes on $48,788,304 of personal property; and to in part compensate for that loss it is now attempted by the city to levy $76,994 of taxes outside of the limitation, as permitted under our interpretation of the third paragraph of said schedule. This, in our opinion, the city may lawfully do.

It will be observed, however, that $7,000 of bonds were issued October 1, 1931, after the date limited in said schedule. That principal, together with the accrued interest of $1,330, may not lawfully be included in the levy outside the 7.5-mill charter limitation, but must be paid from funds raised within the charter limitation of 7.5 mills.

A writ of mandamus may issue, requiring the council of the city of Akron, Ohio, to amend and revise the budget of the city of Akron by excluding therefrom levies outside the limitation of 7.5 mills in the amount of $883,949, this being the aggregate of the sums of $875,619 of principal and interest on bonds issued pri- or to November 6,1928, and $8,330 principal and interest on bonds issued after January 1, 1931. Tbe defendants to pay tbe costs of tbis proceeding.

Writ allowed.

Washburn and Doyle, J J., concur.


author: Geiger, J.

text:
    Carter, Appellant, v. The Pennsylvania Rd. Co., Appellee. (Two Cases.)
    (Nos. 3736 and 3727
    Decided November 8, 1944.)

      Mr. Paul M. Herbert and Mr. Abraham Oeriner, for appellants.

      Messrs. Burr, Porter, Stanley & Treffinger, for appellee.
   Geiger, J.

These two cases involve the same question and will be considered together. The facts stated in the petitions of Samuel Carter, the father, and Samuel Carter, Jr., the son, are substantially the same, the father suing for expenses incurred by him on account of the alleged injury to the son, and the son suing for compensation for injuries suffered by him.

Briefly, the two petitions are to the effect that on the 20th day of June 1942, the son, an infant, was playing at the home of a friend; that the premises immediately adjoining to the east constituted a wide-open and unfenced field extending approximately 400 feet to the railroad tracks of the defendant; that along the eastern edge of such field there was a dirt road open for public use; that such open field had for a time been used as a playground for children, including the infant son, and at all times mentioned in the petition was being used as a playground for children, including the infant son; that the defendant at all times knew that the field adjoining defendant’s tracks was being used as a children’s playground; that for a long period of time up to the day of the injury of the infant son, the defendant had provided and stationed -along its right of way near the playground a watchman, a part of whose duties was to warn and caution children not to go upon the tracks because defendant knew that if they did, injuries probably would result to such children; that tjie custom and usage of the defendant in placing its watchman upon the property adjacent to the playground had created the feeling and belief among the parents of the children who habitually frequented the playground, that the children were safe from the dangers of moving trains and cars; that the practice and custom of the defendant in placing its watchman as above set forth had led the parents of the children to believe that such custom long established would be continued and that it was safe to permit children to use and occupy the playground; that subsequently defendant withdrew its watchman, leaving its tracks and moving trains without any person to warn children and to prevent them from going onto the railroad tracks and incurring injury; that the defendant failed to warn or take any steps to advise the parents of its change of custom in maintaining a watchman at such premises; and that the defendant knew that by withdrawing its watchman, children, including the infant son, being attracted by moving cars and trains, would go upon the railroad tracks, and would be injured.

It is alleged that the defendant knew that the open field was used by children, knew that moving trains were attractive to children, and knew that childish curiosity would cause children, including the infant son, to go upon the railroad tracks and thereby endanger their lives and limbs; that at the time mentioned the attention of the infant son was drawn to a train consisting of 50 freight cars, operated by defendant, which train was proceeding at a slow rate of speed in a southerly direction on such tracks and in full view of the house and lot where the infant son was playing; that the infant son was attracted to the train; that in total ignorance of the dangers involved he ran out to watch the cars; and that the wheels of one of the cars ran over and mangled him in the manner stated.

To the amended petitions general demurrers-were filed and the court found that the demurrers were well taken and should be sustained; and the plaintiffs not desiring to plead further it was considered by the court that the defendant go hence without day and recover from plaintiffs its costs.

Plaintiffs contend that the defendant owed the infant son a duty for two reasons: (1) It was under a duty to take reasonable precaution to prevent injury, knowing that the children’s playground abutted its tracks and that trains attracted children who would be injured unless precaution was taken. (2) Having taken the precaution of establishing watchmen, a part of whose duty was to warn children, the defendant was under a duty not to abandon the use of such watchmen without notice, it having actual knowledge that children would in fact be injured.

It is finally asserted that the court erred in sustaining the demurrer because (1) the knowledge of the defendant of the facts created an obligation to take reasonable precaution, and (2) even if no duty existed upon the defendant to take any precaution, the defendant having voluntarily assumed to protect children with watchmen, had a duty not to withdraw these watchmen with reckless disregard of the probable injury.

Counsel for both sides have presented interesting briefs. We have read the many cases cited and regard the following as the cases most strongly supporting plaintiff’s claim: Coy, an Infant, v. Columbus, Delaware & Marion Electric Co., 125 Ohio St., 283, 181 N. E., 131; Harriman v. P., C. & St. L. Ry. Co., 45 Ohio St., 11, 12 N. E., 451, 4 Am. St. Rep., 507; Ziehm v. Vale, 98 Ohio St., 306, 120 N. E., 702, 1 A. L. R., 1381. Those cases and others cited by counsel present different states of facts from that asserted in the plaintiffs ’ petitions. The plaintiffs in order to hold the railroad company liable for having withdrawn the watchman must show that the duties of such watchman were to protect the public from dangers incident to the operation of the railroad. There are no allegations in the plaintiffs’ petitions that the railroad negligently operated its trains. See the first paragraph of the syllabus in the case of Harriman v. P., C. & St. L. Ry. Co., supra. The negligence complained of in that case consisted in allowing a highly explosive and dangerous object likely to attract children, upon the right of way over which the public was permitted to pass.

The facts in that case differ from the facts in the present cases.

Among the many cases cited by the defendant is that of Wheeling & L. E. Rd. Co. v. Harvey, 77 Ohio St., 235, 83 N. E., 66, 122 Am. St. Rep., 503, 19 L. R. A. (N. S.), 1136. That is an opinion, covering 35 pages of the Supreme Court Reports announced by Judge Summers, whose habit it was to cite all cases in any way reflecting upon the question under examination. In the Harvey case the question was whether an infant could recover for injuries received when he entered upon the property of the railroad company and was injured by the operation of a turntable. The first two paragraphs of the syllabus are as follows:

“1. It is not the duty of an occupier of land to exercise care to make it safe for infant children who come upon it without invitation but merely by sufferance.
“2. A railroad company is not liable to an infant who comes upon its premises without invitation and who is injured there while playing, without its knowledge, with a turntable. The doctrine of the turntable cases is disapproved. Harriman v. Railroad Co., 45 Ohio St., 11, distinguished.”

The holding of the court in the Harvey case was bitterly assailed by Judge Wanamaker in the case of Ziehm v. Vale, supra. In spite of tbe severe criticism by Judge Wanamaker, tbe Harvey case still stands as tbe law of Ohio. While it especially deals with attractive nuisances and attractive dangers as noted on pages 249 and 262 of the opinion, it covers a broader field as to the liability of the owner of property to children who trespass upon the property without invitation or inducement.

On page 252 et seq., of the opinion, there is a discussion at large and many cases cited as to the duties which the owner of property owes to a trespasser upon his premises and also whether there is a larger duty owed to children than to adult trespassers.

In the case of Hannan, Admr., v. Ehrlich, 102 Ohio St., 176, 131 N. E., 504, paragraphs three, four and five of the syllabus are'as follows:

“3. Actionable negligence exists only where the one whose act causes or occasions the injury owes to the injured person a duty created either by contract or by operation of law, which he has failed to discharge.
“4. A licensee takes his license subject to its attendant perils and risks, and the licensor owes him no duty except to refrain from wantonly or wilfully injuring him and to exercise ordinary care after discovering him to be in peril; he should not be exposed to hidden dangers, pitfalls or obstructions.
“5. The foregoing rule is not altered by the fact that the injured person is a child of tender years.”

We are not disposed to further discuss the instant case. The defendant did not owe any obligation to the children playing in the adjacent vacant lot, to put a watchman there to protect them against the dangers incident to going on the tracks where trains were operated at a proper rate of speed. Having, during a period prior to the accident, furnished a watchman, one of whose duties was to watch the children, the defendant was under no obligation to notify the children or their parents of the withdrawal of the services of such watchman. The train was being operated at a legal rate of speed, in full view of the minor, and when he left the vacant lot where he had been playing and crossed the intervening dirt road and went upon the right of way of the railroad company where he was injured, he was a trespasser upon such property and the railroad company was not responsible for withdrawing the watchman or in failing to erect a fence to exclude the passage upon its property of trespassers. The statute relating to fencing railroad property limits the necessity for the erection of such fence to the protection of stock and cattle, with no reference to the exclusion of pedestrians or children.

We are of the opinion that the court below did not err in sustaining the demurrers.

Judgment affirmed.

Hornbeck and Sherick, JJ., concur.

Sherick, J., of the Fifth Appellate .District, sitting by designation in the Second Appellate District.