author: Montgomery, P. J.

text:
    The State, ex rel. Kraft, Appellee, v. City of Massillon et al., Appellants.
    (No. 2427
    Decided February 6, 1951.)

      Messrs. Mills £ Mills and Messrs. Woodle £ Wachtel, for appellee.

      Mr. Robert K. Willison, city solicitor, Mr. Elson Wefler, and Mr. Sherlock Evans, for appellants.
   Montgomery, P. J.

The relator, appellee herein, had been for some years a policeman in the city of Massillon. In this action in the Court of Common Pleas the prayer was for a writ of mandamus. It was alleged in the petition that relator had submitted his resignation as a member of the police force on August 3, 1949, to take effect on August 10, 1949, but that on August 8, 1949, he withdrew the resignation and notified the respondents, appellants herein, of such withdrawal. The relator alleged further that the respondents refused to return his resignation, badge, and personal equipment which he had surrendered, and refused to pay him any salary after August 3, 1949.

The prayer of the petition was that the respondents be required to reinstate relator as an active member of the force and to return to him his resignation and badge and other equipment, and that the respondent treasurer be required to pay him his accumulated salary from August 3, 1949.

However, it is stipulated that relator was paid up to August 10, 1949, and that,, so far as the salary is concerned, the amount claimed should start as of that date.

The respondents in their amended answer admitted that relator had been a police officer in the employ of the city of Massillon prior to August 3, 1949, and averred that on such date relator committed acts of misconduct in that he took beer to a female prisoner in the city jail and sought improper relations with her. Respondents averred further that the relator, upon being detected in the commission of such acts, surrendered his badge of authority and revolver to the chief of police and tendered his resignation. It is averred also that relator, when tendering such resignation, represented that there was one week of vacation due him and requested that the resignation be effective one week after the date submitted, with separation to take place immediately, that is, on August 3, 1949.

It was also set forth in the amended answer that the mayor of the city of Massillon gave written notice of the acceptance of the resignation and notified the city civil service commission of such resignation and acceptance.

Respondents admitted that they refused to recognize relator as a member of the police force, to return him to duty, or to return his badge of authority.

A reply was filed, which was, in effect, a general denial of the affirmative allegations of the amended answer.

The record shows clearly that on the night relator was detected in forcing his attentions upon the female prisoner he did propose what was averred in the amended answer; that he submitted his resignation effective one week later; that he voluntarily surrendered his revolver and badge; that he did not work the remainder of his shift that night, but departed from the city premises at once; and that the remainder of his shift was worked by another patrolman. Thereafter, and before the expiration of the week, relator attempted to withdraw his resignation and demanded his reinstatement. As to these facts there is no real dispute.

The order of the trial court was that a writ of mandamus issue directing the respondents to restore the relator to the police force.

From that order this appeal was perfected.

Counsel for relator contend that the sole question involved in this case is the right of relator to withdraw his resignation before its effective date and contend further that all the evidence concerning the circumstances surrounding his resignation was incompetent.

We have read the entire record and do not regard such evidence as incompetent, because it reflects, at least, upon the question of relator’s relinquishment of the office.

It is not necessary to. comment upon that evidence in any detail. It is lurid in the extreme. The trial judge, in the first paragraph of his opinion, said: “There is no doubt that the relator should have been removed from the Massillon police force and the only question to be determined is as to whether his removal was accomplished according to law.”

With this pronouncement we are in complete accord, and in view of the record it is inconceivable that this man should ever be permitted again to serve as a policeman in the city of Massillon or anywhere else.

However, the trial judge, after making this preliminary statement, decided the question in favor of the relator and based his conclusion upon two Court of Appeals decisions, to wit, State, ex rel. Staley, v. City of Lakewood, 47 Ohio App., 519, 192 N. E., 180, and Babbitt v. Shade, 60 Ohio App., 100, 19 N. E. (2d), 778. The latter case is of no particular importance to us, because the statement of facts contained in the opinion is very meager and the court in deciding the case in this respect simply followed the earlier Staley case.

The trial court stressed in particular the fifth paragraph of the syllabus in the Staley case, which is:

“Officer’s resignation to take effect in future may be withdrawn before effective date thereof even against will of body which has accepted it.”

However, it seems to us that greater stress should be laid upon paragraphs three and six of the syllabus, which are:

“3. To constitute complete and operative resignation of public officer, there must be intention to relinquish part of term, accompanied by act of relinquishment. ’ ’

“6. City police officer, declaring intention to relinquish position at future date in letter of resignation, held entitled to withdraw resignation before such date, in absence of act of relinquishment of position (Section 486-16, G-enqral Code). ”

In the opinion in the Staley case, on pages 523 and 524, it is stated:

“It will be observed that the position which Staley held prior to his tender of resignation has not been vacated; that no one has been appointed in his place; that he has reported for work daily, and has at all times been ready, able and willing to perform any of the duties which might be assigned to him as a member of the police department of the city of Lakewood. There are no charges pending against the officer for official misconduct of incumbency.

“Furthermore, between December 7th, the date of Staley’s tender of resignation, and December 15th, the date when the same was to become effective, he was on duty, and did all that was required of him in the performance of his duty as a police officer in the city of Lakewood. He has at no time relinquished the possession of his office.”

In arriving at our conclusion it is not necessary to find that it is in conflict with the judgment of the Court of Appeals in the Staley case. In the instant case another man has taken relator’s place. Although relator did offer to return to work, he has not returned daily, and although no formal charges were filed against him, nevertheless, when confronted with actual misconduct, he tendered his resignation, in order to avoid the preferring of charges and in order to get the benefit of the week’s vacation pay, he relinquished possession of his office as of August 3, 1949, by the surrender of his badge and revolver and by leaving his job during his shift or tour of duty.

There is a divergence of authority in other states as to whether a public officer who freely tenders an absolute and unconditional resignation to take effect in the future may withdraw it after its acceptance, even though the time it is to take effect has not arrived. See 43 American Jurisprudence, 25, Section 170.

We hold, as hereinbefore indicated, that evidence as to the circumstances surrounding the resignation is competent, because, when developed, as was done in the instant case, the evidence shows a real consideration for the relinquishment of the office.

We call attention to the case of State, ex rel. Waldman, v. Burke, Mayor, 152 Ohio St., 213, 216, 88 N. E. (2d), 578, where the court, in referring to a previous decision said: “This court indicated the view that conduct of an employee may properly be regarded as constituting a resignation from the position held by him.”

We further direct attention to the case of State, ex rel. Lyons, v. Ness, Dir. of Pub. Safety, 139 Ohio St., 309, 39 N. E. (2d), 849, which, although not directly in point, is interesting and casts some light upon the attitude of our Supreme Court toward this kind of a situation. Although all the conditions mentioned in that case are not present in the instant case, some of them are, as will be shown by a mere reading of the following quotation:

“The relator’s second contention is that, even if the validity and effectiveness of his resignation be conceded, the respondents nevertheless are under a duty to reinstate him.

“He relies upon the provisions of Section 486-16, General Code, and Section 7 of Rule 10 of , the Civil Sendee Commission of Ohio. However, these can be of no assistance to him. The latter patently relates to a satisfactory employee who resigns and then decides to re-enter the service within one year thereafter. The former provides the four conditions that (1) the employee must have been separated from the service without delinquency or misconduct on his part, (2) the consent of the civil service commission is required, (3) the reinstatement must be within one year from the date of the separation from the service, and (4) a vacancy must exist. A study of the relator’s second amended petition discloses that there was no compliance except with the requirement that his application be filed within one year after his separation from the service.”

In the instant case, the question naturally arises as to whether relator, in view of the state of the record, is estopped from now insisting upon his restoration to his position. Estoppel was not directly pleaded, but, nevertheless, the facts set forth in the amended answer, to which' we have directed attention, constitute, in effect, an averment of estoppel.

Why should not estoppel apply in an action in mandamus, even though such action is directed to officials on the theory that they are required to perform a definite act? If a man may be estopped in an ordinary action, is not the reason still stronger why he should be estopped when he seeks an extraordinary remedy?

In this connection, we call attention to another statement contained in the opinion in the case of State, eon rel. Lyons, v. Ness, supra, where the court said, on page 311, “Then too, it would seem that the relator should not be permitted to absolve himself from all responsibility for inquiry as to the rule relating to the withdrawal of a resignation.”

On the same theory, relator here should not be permitted to absolve himself from the result of his own act which was performed for his own benefit and in consideration of which the city and its authorities surrendered certain rights to proceed against him.

We can come to no conclusion other than that the relator did relinquish his position on August 3, 1949. His attempted withdrawal of his resignation, of course, was an afterthought. The city authorities relied and acted upon his resignation.

As indicated, the real question is the payment of salary after August 10, 1949, for services not rendered. In view of the record, we decline to sanction any such claim or position, and we hold that relator was bound by his act of August 3, 1949, and that the city authorities, relying upon it, can not be penalized therefor.

The judgment of the Court of Common Pleas is reversed, and the petition of the relator is dismissed.

Judgment reversed.

McClintock and Putnam, JJ., concur.


source: Caselaw Access Project

author: Skeel, P. J. McNamee, J.,

license: Public Domain

text:
    Kolt et al., d. b. a. Kolt Meat Markets, Appellees, v. Cleveland Trust Co., Appellant.
    (No. 21545
    Decided April 24, 1950.)

      Mr. M. Q. Gritchfield and Mr. S. J. Krohn, for appellees.

      Messrs. McKeehcm, Merrick, Arter & Stewart, for appellant.
   Skeel, P. J.

This appeal comes to this court on questions of law from a judgment for the plaintiffs entered upon the verdict of a jury in the Court of Common Pleas of Cuyahoga County. The plaintiffs’ action was for the recovery of money which they alleged they had placed in the night depository or vault of the Superior and East 123rd Street branch office of the defendant and when called for was not returned because it could not be found.

The plaintiffs, partners engaged as retail meat dealers, by virtue of a contract with defendant had been accustomed to using the night depository facilities of defendant to make deposits of money and checks after banking hours, the deposits being made usually on Saturday nights and on nights just preceding holidays.

-The bank had installed a night depository vault for the purpose of receiving night deposits. There was a small metal door placed in the outer wall of the banking rooms. This door was fitted with a locking device which could be opened only by the use of a key but which could be locked shut simply by completely closing the door. On the inside of this opening there was a metal chute about three feet long which led into a safe within the banking rooms. The top of this chute, located just' inside the outer metal door above described, had a swinging door placed horizontally across the top, constructed very much like the receiving door of a package or parcel mail box used by the United States postoffice department.

The manner in which the night depositor would make his deposit was by first opening the outside door by the use of a key furnished by the bank. He would then pull down the swinging inner door at the top of the chute, which would bring up a shelf completely closing the end of the chute. lie would then put his deposit on such shelf and release the inner door which would swing up, closing the chute and dropping the shelf down so that when the door was closed the deposit would fall through the chute and into the vault or safe.

Entrance to the safe or vault was controlled by a combination lock which could be used only after it was unlocked by a key. The duty of unlocking this safe or vault at a specified time was delegated to two employees — one who had the key and the other who was given the combination. Both of these employees were required to be present at all times when the vault door was opened.

The right to use the night depository facilities was controlled by contract.

The plaintiffs entered into a written contract with the defendant on January 16,1946, whereby for a consideration of 25 cents for each “sack placed in the night chute” with a minimum charge of one dollar per month the plaintiffs were given the right to make use of the night deposit facilities of defendant at the East 123rd and Superior Avenue branch. The contract assigned to plaintiffs key No. 24 to the outside door of the night-chute and “sack No. 29 and two keys thereto” in which to place deposits before putting, them in the night- chute.

The contract, in part, provided:

“The undersigned hereby agrees to use the night depository facilities only for overnight keeping of sacks, which sacks shall contain nothing other than currency or commercial paper, or both, and further agrees that a person authorized by the undersigned will call at the bank to receive and receipt for said sack(s) on the first banking day following each placing by or on behalf of the undersigned of any sack in the night chute. Bank shall have no duty or obligation whatsoever to see that the contents or any part thereof of any sack is tendered for deposit for credit to any account with bank, nor to ascertain the contents or disposition of contents of any sack receipted for by any authorized person.

“The undersigned expressly understands and agrees that each use or attempted use by the undersigned of the night depository facilities shall be at the undersigned’s sole risk at all times and further expressly understands and agrees that the relationship of debtor and creditor between bank and undersigned shall not arise out of any use or attempted use of the night depository facilities, each separate use by the undersigned of the night depository facilities being deemed to have been completed each time any sack hereinabove listed found in the night receptacle by bank is receipted for by any authorized person.”

The contract also provided who should call at the bank the next business day after the night deposit had been made and take possession of the deposit bag or sack. David T. Kolt and Alfred Rafal, in addition to Aaron A. Kolt, were so designated.

The sacks provided under the contract were provided with a padlock, the depositor holding the only key. The depositor would place his deposit in the sack, lock it, and then, with the Use of the key to the night chute, deposit it as above described. When the bank opened the next business day the designated employees would open the night deposit vault in the presence of each other and one would take out the sacks and the other would make a record of the number of each bag or sack thus found in the night vault and the bag or sack would then be taken to the cashier’s cage of the one holding the key to the night vault, and there to await being called for by the several depositors.

The plaintiffs ’ petition alleges that on the night of March 15, 1947, plaintiffs, with Alfred Rafal, placed a deposit of money and checks, totalling $1,772, in sack No. 29, together with Alfred Rafal’s deposit of a smaller amount, and together they went to the bank, unlocked the outer door, opened the chute, placed the sack, which was then wrapped in a paper bag, on the . shelf of the inner door, shut the inner door so that the sack would fall into the vault below, and then locked the outer door and departed.

On March 17, 1947, at about 10 a. m., Rafal called at the bank to get the sack but it was not to be found, nor was there any record of sack No. 29 being found with the other night deposits.

Upon trial, the court charged the jury that the only question for its consideration was whether the plaintiffs had established by a preponderance of the evidence that they had placed the deposit in the night deposit vault.

The trial court’s charge was, in part, as follows:

“If after finding that the plaintiffs have proven to you by a preponderance of the evidence that this depository bag actually went into the mouth of that chute and thereby entered the possession of the bank; if then, following that proof by the plaintiffs the defendant has failed to meet the presumption which arises, by showing you that it exercised ordinary care in the care and custody of the bag, then the plaintiffs are entitled to recover in this controversy, if the plaintiffs have proven to you by a preponderance of the evidence that this depository bag went into the mouth of that chute and into the possession of the bank. But that presumption having arisen against the bank, if the bank has met that presumption by showing you that it did exercise ordinary care in the manner of its care and custody of that bag, then again your verdict should be for the defendant.

“Those are the issues for you to determine, and those are the important issues. (

“There was a contract made by and between the Kolt brothers and the Cleveland Trust Company, which is in evidence and which will be with you in your jury room. I will say to you now, as a matter of law, that no provision of any kind in that contract can change or alter in the least these rules of law which I have heretofore given you regarding the law in this case.”

At the conclusion of the taking of the evidence the defendant requested the court to give the following instructions, which request was presented in writing as provided by Section 11420-1, General Code:

“I say to you, as a,matter of law, that the burden of proof is upon the plaintiff to prove by a preponderance of the evidence that the defendant received in its possession night depository sack No. 29 on the date in question. If you do not find by a preponderance of the evidence that the defendant did receive night depository bag No. 29 on that date in question then your verdict must be for the defendant.”

The court refused the request to which exceptions were taken.

The defendant claims the following errors:

“1. The trial court erred in overruling the motion for a directed verdict at the close of plaintiff’s evidence and renewed at the close of all the evidence.

“2. The trial court erred in overruling defendant’s motion for judgment notwithstanding the verdict.

“3. The trial court erred in overruling defendant’s motion for a new trial.”

If, in fact, the night deposit bag or sack of the plaintiffs was placed in the night deposit chute in the proper manner, the relationship between the bank and plaintiffs, from such time as a night deposit was so placed in the chute until it was subsequently returned to the depositor as provided by the terms of the contract, was that of bailor and bailee. This is so because by the terms of the contract the bank furnished the plaintiffs with a key with which to operate the night deposit door in taking advantage of the night deposit facilities. The bank, therefore, would be held to have accepted a deposit made in accordance with the terms of the contract, which acceptance created the bailorbailee relationship. Such a relationship of bailor and bailee would continue until the bailor or his duly constituted representative called for it, as provided by the contract. As soon as the bailor or his representativo received it, the relationship of bailor and bailee would be at an end, and if the contents of the bag were then deposited, the relationship of debtor and creditor would be created.

It is defendant’s contention that by the provisions of Section 710-110, General Code, the bank is empowered to contract with respect to the use of its night deposit vaults upon such terms and conditions as it may prescribe. And that by the contract (in part above quoted) deposits made thereunder were to be at the depositor’s risk.

Section 710-110, General Code, provides as follows:

“A bank may receive on deposit for safe-keeping in its vaults and safes, or in the vaults and safes of another bank in this state, securities, stocks, bonds, coins, plate, jewelry, books, papers, documents and other valuable papers, and property, upon such terms and conditions as it may prescribe.”

This statute seems broad enough to include the right of a bank to provide by contract upon what terms it will make available facilities for making' deposits in night deposit vaults to be used during the time when the bank is not open. But, if by strict interpretation it should be construed that its provisions would not extend to night depositories, this Section of the Geneial Code of Ohio at least establishes a legislative policy to permit banks to enter into contracts limiting common-law liability with respect to securities deposited with them for safe keeping in their vaults. Such a service is one rendered in the interest of customers who would otherwise be compelled to face the risk that attends the possession of large sums of money in the night season in the regular conduct of their businesses.

Of necessity no one. representing the bank is present when a night deposit'is made. Whether such deposit has actually been made must be established in every event by the evidence of the depositor. It would, therefore, be a very natural position of the bank to take that.until the sack is actually accounted for by the bank’s clerks in the ordinary procedure of accounting for night deposit sacks such deposits should be at the risk of the depositor. Such a contract is not void as against public policy.

That such a limitation by contract is not against public policy is indicated in the case of Bernstein v. Northwestern National Bank of Philadelphia, 157 Pa. Sup., 73, 41 A. (2d), 440. The first paragraph of the headnotes provides:

“A bank in furnishing a night depository service may enter upon a contract relation with depositors on mutually acceptable terms defining bank’s liability within, legal limits in event of loss.”

In the Bernstein case no such contract had been entered into so that the ordinary rules of bailment were used in fixing the liability of the bank,.but on page 441 the court said:

“The purpose of the device was to furnish the facilities for making a general deposit. The bank might have, but it did not, enter upon a contract relation with plaintiffs on mutually acceptable terms (9 C. J. S., Banks and Banking, Section 267; Burrill v. Dollar Savings Bank, 92 Pa., 134) defining its liability within legal limits, in the event of loss. In the absence of such limiting agreement the law will imply from the making of the deposit in this case that the relation ultimately intendéd was that of debtor and creditor * * # M '

Where the circumstances are such that the possession, of another’s property is attended with unusual risks, the parties dealing at arm’s length as free agents may lawfully make any reasonable provision therefor as the circumstances justify.

Contracts relieving the promissor from liability even for his negligence have been upheld on the broad grounds of freedom of contract guaranteed by the federal and state Constitutions. For example, as between landlord and tenant, it has been held that the relationship is not a matter of public interest but relates exclusively to the private affairs of the parties concerned and that the two parties stand upon equal terms. 175 A. L. R., 87, Section 46; Perry v. Payne, 217 Pa., 252, 66 A., 553, 11 L. R. A. (N. S.), 1173, 10 Ann. Cas., 589; Kirschenbaum, v. General Outdoor Adv. Co., 258 N. Y., 489, 180 N. E., 245, 84 A. L. R., 645,

In the last-cited case the court, on page 495, said:

“Stipulations between a landlord and tenant, determining which shall bear a loss arising from nonrepair or misrepair of the tenement, and which shall be immune, are not matters of public Concern. Moreover, the two stand upon equal terms; neither the one nor the other is under any form of compulsion to make the stipulation; either may equally well accept or refuse entry into the relationship of landlord and tenant. We think it clear that public policy does not condemn the immunity clause voluntarily agreed upon by the parties. ’ ’

The right of the bank to immunity from whatever cause except its wilful wrongdoing in furnishing night deposit services under the terms of an exculpatory agreement is supported, in theory at, least, by the almost universal rule that a common carrier (railroad) may by contract relieve itself from liability even for its negligence or that of its servants or employees in the construction and use of private sidings and spur tracks. 175 A. L. R., 100, Section 51.

In the case of Mann v. Pere Marquette Rd. Co., 135 Mich., 210, 218, 97 N. W., 721, which was concerned with a contract exempting the carrier from loss resulting from the negligent operation of its locomotive over a railroad side track, the court said:

“This case doea not fall within those where contracts to exempt from liability are held void on the ground of public policy. It is a fundamental rule of law that what one may refuse to do entirely he may agree to do upon such, terms as lie pleases. In contracting to put in those side tracks, the defendant was not acting in the capacity of a common carrier. It was under no legal obligation to put them in. It might have refused. * * # There was no oceasion.to contract against properly equipped and properly managed engines, for fire caused by such would not create any liability. The only purpose for such was to avoid the consequences of its own negligence, and to avoid lawsuits growing out of alleged negligent acts. It had a perfect right, both in reason and authority, to contract against such liability.”

The case law of bailment supports the same principles of law.

Again quoting from 175 A. L. R., 110, Section 55, the author says:

“The modern development of the law of bailments and its extension to many new and varied transactions as a result of the increasing complexity of today’s commercial relationships is reflected accurately in the position the courts take in reghrd to the exculpatory clauses found so frequently in bailment contracts. While the right of the ordinary bailee to make a contract exempting him from liability due to his negligence or the negligence of his employees is recognized with practical unanimity, a strong tendency to hold such contracts void as violative of public policy is noticeable in the decisions of the courts which deal with contracts of bailment for hire entered into by the bailee in the course of a general dealing with the public; and this tendency becomes more pronounced the more recent the decisions, although there is still respectable authority for the view that such provision may be valid against all but gross negligence. Bailees of the second type, as this term is understood here, are persons who make it their principal business to act as bailees and who deal with the public on a uniform and not an individual basis as evidenced by the fact that their contracts, as a rule, are printed on identification tokens or are posted in their place of business. The chief representatives of this type of bailees are owners of parcel checkrooms, owners of parking places, garagemen, and warehousemen.”

Upon the above authority, the case of Agricultural Ins. Co. v. Constantine, 144 Ohio St., 275, 58 N. E. (2d), 658, is to be distinguished from the instant case. The Constantine case involved one engaging exclusively in the business of parking automobiles for hire. It is not to be presumed that the Supreme Court by its holding in the Constantine case on the question of limiting liability intended to exclude, on the ground of public policy, all contracts which limit the common-law liability of an ordinary bailee for hire. This must be true especially in cases involving safe deposit -vaults because of the legislative policy indicated by Section 710-110, General Code.

It must be likewise noted that the Supreme Court in the Constantine case, supra, or in the case of Hotels Statler Co., Inc., v. Safier, 103 Ohio St., 638, 134 N. E., 460, 22 A. L. R., 1190, did not overrule or modify its holding in the case of Mansfield Mutual Ins. Co. v. Cleveland, C., C. & St. L. Rd. Co., 74 Ohio St., 30, 77 N. E., 269.

In the last-cited case the right of a railroad company to stipulate as a provision of a lease that it would not be liable for any loss caused to the lessee by fire accidentally or negligently communicated to the property by the railroad company lessor through the acts of its agents or servants was considered. The property of the railroad company lessor about which the lease dealt was adjoining the right of way of the defendant’s railroad so that fire -was an ever-present danger. The court said:

“1. A stipulation in a lease made by the railroad company that the lessee is to exonerate it from all liability for damages by fire to any property or structure on the demised premises, which in the operation of the railroad may be accidentally or negligently communicated to it, is not void as against public policy.

“2. Such lessee and his insurers cannot recover from the railroad company the amount of the loss by fire to a building and its contents owned by the lessee and located partly on such premises, when in the operation of the railroad the fire was communicated to that part of the building on the demised premises. ’ ’

The right of a bailee to relieve himself from liability for his own negligénce in the execution of the bailment contract, considered in the note in 175 A. L. R., 110, especially where the bailee is a so-called “professional” bailee, has to do with his liability in the management and control of the goods where there is no issue as to the receipt of the goods. This is likewise true with regard to the cases therein considered, where the courts placed a strict construction upon the contract limiting the liability of the bailee (unless the provisions of the contract are so clear and unambiguous as to leave no doubt as to the meaning of the exculpatory clause), that the words of limitation were not intended to include relief from the bailee’s negligence. But the instant case is not concerned with property admittedly in the possession of the bailee. Here the primary consideration is as to whether the “deposit sack” actually came into the possession of the defendant at all.

The method devised by the defendant for safeguarding deposit sacks properly placed in the night deposit chute exemplified a high degree of care and protection for the property of depositors, and the manner in which these precautions were carried out on the first business day after the claimed use of the-night deposit facilities by the plaintiffs is not refuted by the plaintiffs except by their claim that the deposit sack was put in the chute.

The plaintiffs’ action is upon a contract the terms of which placed the risk upon them until the deposit was actually receipted for. As indicated, the manner in which night deposits must of necessity be made should permit the defendant to protect itself within reasonable limits.

We conclude, therefore, that the court’s charge, entirely eliminating the contract from the consideration of the jury, was in error, as were the rulings of the court on the motions for judgment.

Having come to the foregoing conclusion, it is unnecessary to consider the error claimed for the refusal to charge as requested before argument other than to say that the charge as requested was a correct statement of law upon an issue presented by the pleadings and evidence in the charge and should have been given.

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

Judgment reversed.

Hurd, J., concurs.

McNamee, J.,

dissenting. As I understand the views of the Supreme Court on the subject, there is no legal impediment against giving effect to the special contracts that limit the degree of .liability of an ordinary bailee for loss occasioned by its negligence, but a bailee by special contract may not exonerate itself from liability occasioned by its own negligence.

In Hotels Statler v. Safier, 103 Ohio St., 638, 646, 134 N. E., 460, 22 A. L. R., 1190, the following statement appears in the opinion by Jones, J.:

“Ordinarily in bailments the parties may diminish the liability of the bailee by special contract, provided the contract is not in violation of law or of public policy and does not relieve the bailee of negligence.”

Immediately following the above, Judge Jones added:

“But in the instant case no such special contract was made, and in the absence of a special agreement the law of bailments fixes the degree of the bailee’s liability.”

This latter statement implies clearly that where no prohibitions of law or considerations of public policy intervene, parties to a bailment may by special contract limit the degree of the bailee’s liability for its own negligence. However, the express declaration against the validity of a contract that exempts a bailee from liability for negligence, which appears in the Statler case, is approved and amplified in Agricultural Ins. Co. v. Constantine, 144 Ohio St., 275, 58 N. E. (2d), 658, where the court at page 28.3 of the opinion said:

“ ‘It is now apparently well settled that a bailee for hire cannot, by contract, exempt himself from liability for his own negligence or that of his agents or servants [Franklin v. Southern Pacific Co., 203 Cal., 680, 265 P., 936, 59 A. L. R., 118; Hotels Statler Co. v. Safier, 103 Ohio St., 638, 134 N. E., 460, 22 A. L. R., 1190; Scott Auto & Supply Co. v. McQueen, 111 Okla., 107, 226 P., 372, 34 A. L. R., 162; Simms v. Sullivan, 100 Ore., 487, 198 P., 240, 15 A. L. R., 678; Sporsem v. First National Bank of Poulsbo, 133 Wash., 199, 233 P., 641, 40 A. L. R., 854].’ ”

In the case last cited in the above quotation, the bank leased a safe deposit box to the plaintiff. The contents of the box were lost through a burglary. The bank, among other defenses, claimed exemption from liability by virtue of the clause in the contract with the depositor that it “assumes no liability whatever for any loss or damage that may occur.” The court answered this contention with the statement that “it is now apparently well settled that a bailee for hire cannot by contract exempt himself from liability for his own negligence.”

In the instant case, the clause relied on by the bank was, “The undersigned expressly understands and agrees that each use or attempted use by the undersigned of the night depository facilities shall be at the undersigned’s sole risk at all times * *

If there be any significant difference between the purport of this provision and the exculpatory clause in the Sporsem case, I am unable to perceive it.

In, Agricultural Ins. Co. v. Constantine, supra, the exculpatory clause read;

“No attendant on duty after regular closing time. Cars left after closing at owner’s risk. This station will endeavor to protect the property of its patrons, but it is agreed that it will not be liable for loss or damage of cars, accessories or contents, frotn whatever cause arising,”

Observing that the above language is broad enough to avoid liability for wanton or wilful misconduct of the bailee the court said:

“The attempted limitation of liability here under consideration cannot be upheld either upon reason or authority, whether it applied during regular business hours or only after closing time.”

The statements in the opinions of the Safier and Constantine cases, as hereinabove quoted, were not carried into the syllabi of the cases in which they appear. But they are authoritative expressions of the court on important legal principles. Unless they are to be rendered devoid of meaning they ought to serve as reliable guides to proper judicial action in cases where the principles discussed are decisive of the issues presented. If this be not so, it is for the Supreme Court and not this court to say.


author: Guernsey, J. Jackson, J.,

text:
    Ulrich, a Minor, Appellee, v. Massie, Appellant.
    (No. 1021
    Decided February 23, 1951.)

      Messrs. Strelitz, Ealberstein <& Mitchell, for appellee.

      Mr. J. C. A. Arter, for appellant.
   Guernsey, J.

This is an appeal on questions of law from a judgment of the Court of Common Pleas of Marion County, in an action wherein the appellee, Charles E. Ulrich, by Charles L. Ulrich, his father and next friend, was plaintiff and Forest Glen Massie, the appellant, was defendant. The parties will be hereinafter referred to as plaintiff and defendant.

The action is one for damages for personal injuries sustained by plaintiff while being transported, without payment therefor, as a guest in a motor vehicle operated by the defendant.

The injuries for which damages are sought were sustained by plaintiff when the automobile operated by defendant in a westerly direction from Marion, Ohio, toward Kenton, Ohio, On U. S. route No. 30S, collided with a bridge upon the highway.

The case was tried to a jury which returned a verdict of $6,500 in favor of plaintiff, and the judgment from which this appeal is taken was rendered on that verdict.

, The right of plaintiff, if any, to recover in this action is governed by the provisions of Section 6308-6, General Code, which, among other things, prescribes that the owner, operator, or person responsible for the. operation of a motor vehicle shall not be liable for loss or damage arising from injuries to a guest, while being' transported, without payment therefor, in or upon such vehicle, resulting from the operation thereof, unless such injuries are. caused by the wilful or wanton misconduct of such operator, owner, or person responsible for the operation of such motor vehicle.

In his petition, the plaintiff charges the defendant with both wanton and wilful misconduct.

The defendant assigns error in a number of particulars, but we will confine our discussion to the first assignment comprehending two specifications of error, as the other assignments are wholly without merit and. a consideration of the first assignment will be dispositive of the whole case. The first assignment is as follows:

“The trial court erred in overruling motion of appellant at close of appellee’s evidence for an instructed verdict; and also renewal of said motion at close of case.

“The trial court erred in overruling the motion of appellant for new trial and judgment notwithstanding the verdict.”

This assignment raises the question as to whether, construing the admissions in the pleadings, the evidence, and all the inferences properly deducible therefrom most favorably to plaintiff, there is proof that plaintiff’s injuries were caused by the wanton or wilful misconduct of the defendant.

We shall therefore consider what constitutes wanton or wilful misconduct as such terms are used in Section 6308-6, General Code. , 1

“Within the meaning of Section 6308-6, General Code, wanton misconduct is such conduct as manifests a disposition to perversity, and it must be under such surrounding circumstances and existing conditions that the party doing the act or failing to act must be conscious, from his knowledge of such surrounding circumstances and existing conditions, that his conduct will in all common probability result in injury. (Universal Concrete Pipe Co. v. Bassett, 130 Ohio St., 567, approved and followed.) ” Helleren, Admx., v. Dixon, 152 Ohio St., 40, 86 N. E. (2d), 777.

“ ‘Wilful misconduct,’ as used in the Ohio guest statute, Section 6308-6, General Code, * * * implies an intention or purpose to do wrong, an intentional deviation from clear duty or from a definite rule of conduct, and not a mere error of judgment.”

“ ‘Wilful misconduct’ on the part of a motorist, within the meaning of the Ohio guest statute, Section 6308-6, General Code, * .* # is either the doing of an act with specific intent to injure his passenger or, with full knowledge of existing conditions, the intentional execution of a wrongful course of conduct which he knows should not be carried out or the intentional failure to do something which he knows should be done in connection with his operation of the automobile, under circumstances tending to disclose that the motorist knows or should know that an injury to his guest will be the probable result of such conduct” Tighe, a Minor, v. Diamond, 149 Ohio St., 520, 80 N. E. (2d), 122.

In the second paragraph of the syllabus in the case of Helleren, Admx., v. Dixon, supra, it is held:

“In an action against the operator of an automobile for injuries to or death of a nonpaying guest, where there is no substantial evidence tending to prove wilful or wranton misconduct of the defendant, the trial court should grant such defendant’s motion for a directed verdict. ’ ’

We will, therefore, proceed to consider the admissions in the pleadings, the evidence, and the inferences properly deducible therefrom, in the light of the. rules mentioned, and construe the same most favorably to plaintiff. Thus considered, the admissions in. the pleadings, the evidence, and the inferences properly deducible therefrom tend to prove the following facts. ' .

The defendant, during the night and a portion of the day preceding the collision in which plaintiff sustained, his injuries, had only about three hours sleep, the collision occurring about 3:17 p. m. on March 21, 1948.

U. S. route 30S, upon which the collision occurred, was a duly dedicated public highway running in a general easterly • and westerly direction and passing through Marion and Hardin counties 'in the state of Ohio.

At the time and place of the collision, which occurred approximately six miles east of the city of Kenton, the highway was improved with a macadam surface approximately 18 feet in width.

This highway crossed over a creek bed by means of a concrete bridge which was constructed with concrete sides approximately five feet, four inches high and ■twelve inches wide.

The concrete side on the north side of the road was located approximately four feet, two inches from the north edge of the improved portion of the road and was constructed with a concrete retaining wall angled in a northwesterly direction from the east base of the concrete abutment, the retaining wall being approximately four feet, two inches in length.

The concrete bridge was approximately nine feet in length on top and nine feet, seven inches long at the base.

At the time of the collision there was a high wind.

The defendant had driven over the road many times and was familiar with it.

Riding with the defendant in his automobile were Richard Eckert in the middle of the front seat, Jack Rubins in the right front seat, Charles Pace in the left rear seat, plaintiff in the middle of the left rear seat, and Warren Meister in the right rear seat.

The automobile collided with the north side of the bridge.

In the collision, the automobile was practically demolished, Pace and Eckert were killed, and plaintiff sustained severe injuries.

The defendant operated his automobile from the city limits of Marion at a speed of 65 miles per hour and, at a distance of one-half to three-fourths mile from the place of collision, operated it at a speed of from 75 to 80 miles per hour, the latter rate of speed apparently evidenced by the fact that the speedometer of his automobile, after the collision, indicated that at the time of collision it had been moving at a speed of approximately 80 miles per hour.

At the time the automobile was going from 75 to 80 miles per hour, it was bouncing up and down but was not out of control. For approximately two or three minutes prior to the collision (which at the rate of speed the automobile was traveling would place it two or three miles from the place of collision), Rubins was sleeping or trying to sleep, with his head against the right side of the automobile. In order to awaken Rubiris, the defendant suddenly swerved the car off and back onto the paved portion of the highway;

At the time the swerving occurred the defendant was warned or cautioned by at least three of the other occupants of the automobile to “take it easy,” “cut it out,” or “stop it.”

Such warnings or cautions were directed to the conduct of the defendant in swerving the automobile off and onto the paved portion of the road and not to the speed at which he was driving. After such warnings, the speed of the automobile did not in any way slacken.

This testimony as to the defendant swerving the automobile off arid onto the paved portion of the highway is corroborated by the testimony of defendant who stated that the automobile swerved off the paved portion of the highway onto the berm several times during its progress from Marion, but he attributed such swaying to the force of the wind and not to any act upon his part.

The four occupants of the automobile who survived the collision testified, but none of them testified as to the manner in which the automobile was operated from the time it swerved back onto the paved portion of the highway until it arrived at the place of collision. None of them noticed that the defendant had swerved the car from the paved portion of the road onto the berm immediately preceding the collision with the bridge, and none of them saw the bridge with which the automobile collided.

The testimony as to the speed of the automobile subsequent to its swerving back upon the paved portion of the highway was given by one Flowers who had passed it going in the opposite direction, and who came back to the place of collision after it occurred. He testified further as follows:

“41. Did you see and observe any tire marks on the side of the road? A. You mean off the edge of the berm?

“42. Yes sir. A. That is right.

“43. Will you please describe these? A. As near as I can describe them for now, they were in to the gravel, gradually back and then right straight.

“44. Approximately how far back of the bridge did they start? A. Oh, to my knowledge I would say it was better than 100 feet back, or more.”

Considering all the above facts, there is nothing tending to prove such conduct on the part of the defendant “as manifests a disposition to perversity,” or that the defendant knew that his conduct would “in all common probability result in injury,” or the doing of any act “with specific intent to injure his passenger,” or “the intentional execution of a wrongful course of conduct,” or “intentional failure to do something which he knows should be done in connection with his operation of his automobile,” except so far as defendant’s conduct in swerving the car off and onto the paved portion of the highway for the apparent purpose of jarring and awakening one of his guest passengers may be so considered.

The evidence tends to prove that at the time of and immediately preceding the collision the defendant was negligent in operating his automobile at an excessive rate of speed and in failing to keep a lookout, and that such negligence was the proximate cause of the injuries sustained by plaintiff, but it does not tend to prove that the defendant was guilty of either wanton or wilful misconduct.

This case is distinguishable from the case of Kennard, a Minor, v. Palmer, a Minor, 143 Ohio St., 1, 53 N. E. (2d), 908, in that the collision in that case occurred upon a highway having numerous curves and being rough in places, and the perversity of the operator of the automobile continued up to the time of the collision, whereas in the instant case the highway on which the collision occurred was neither curved nor rough in places, and the perversity of conduct of the operator of the car ceased prior to the collision and was not a proximate cause thereof.

The instant case is also distinguishable from the case of Thomas v. Foody, 54 Ohio App., 423, 7 N. E. (2d), 820, in that the operator of the automobile in that case persisted, over the protests of his guest passenger, in driving at an excessive rate of speed around curves, whereas in the case at bar the operator of the automobile was driving on a straight road and desisted from operating his automobile in a manner to which his passengers objected.

The instant case is also distinguishable from the case of Morrow v. Hume, Admx., 131 Ohio St., 319, 3 N. E. (2d), 39, in that the evidence in that case showed excessive speed in “an unusually dangerous situation,” and that the operator of the car drove on “without any care whatever, and without slackening his speed, in utter heedlessness of his guest passenger’s jeopardy,” whereas the facts in the case at bar do not show an unusually dangerous situation, or that the operator drove without any care whatever in utter disregard of his guest passengers’ jeopardy.

For the reasons mentioned, the trial court erred in not sustaining defendant’s motion for a directed verdict made at the close of plaintiff’s evidence and renewed at the close of all the evidence and also erred in not sustaining defendant’s motion for judgment notwithstanding the verdict. For these errors the judgment is reversed, and this court, rendering the judgment the trial court should have rendered, enters final'judgment in favor of the defendant and remands the cause to the Common Pleas Court for execution.

Judgment reversed.

Middleton, P. J., concurs.

Jackson, J.,

dissenting. The writer of this opinion is unable to agree with the majority of the court that error obtained in the trial of the cause wherefore final judgment should be rendered by this court.

Under the pleadings, the issues are clearly made that recovery, if any, must be had by virtue of Section 6308-6, General Code.

The amended petition pleads in the alternative that the defendant was guilty of wilful or wanton misconduct, and the issues were made up by the answer of the defendant. The amended petition was not attacked as to the pleading in the alternative, and the evidence was submitted in accordance with the issues as defined in the amended petition and the answer of the defendant.

Therefore, the verdict of the jury in favor of the plaintiff must have been based either upon wilful misconduct, wanton misconduct, or both.

No prejudicial error intervened during the submission of the evidence and the charge of the court.

As in nearly all litigated matters, the evidence shows a conflict as to what actually happened. The jury understood plainly the import of the- issues, the evidence, and the charge of the court. The jury showed its understanding rather conclusively by its answers to the three interrogatories submitted.

The majority of this court finds as a matter of law that neither wilful nor wanton misconduct obtained and, therefore, that final judgment must be rendered.

If we consider the evidence most favorable to plaintiff, which is the correct rule, the court acted properly when it denied the motion of the defendant for judgment at the close of the evidence of the plaintiff and at the end of all the evidence.

In consideration of the entire record, the causé was properly submitted to the jury, and the jury having found in favor of the plaintiff, judgment was, and should have been, rendered upon the verdict of the jury.

As I find no error of a prejudicial nature in, any of the matters complained of, I believe the judgment of the Common Pleas Court should be affirmed and the cause remanded for execution.


author: Per Curiam.

text:
    Jolley, Appellee, v. Martin Brothers Box Co., Appellant.
    (No. 692
    Decided October 13, 1950.)

      Messrs. Spidel, Staley <& Hole, for appellee.

      Messrs. Boggs, Boggs é Boggs and Messrs. Mar-chad é Marchal, for appellant.
   Per Curiam.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Darke County, overruling defendant’s motion for judgment non obstante veredicto and from the judgment entered on the verdict in favor of the plaintiff.

Defendant claims that the second amended petition of plaintiff does not state a cause of action; that upon the evidence defendant is entitled to judgment; and that the act of which the defendant was found guilty could not as a matter of law have been the proximate cause of the accident and injuries suffered by the plaintiff.

The plaintiff is entitled to the benefit of the most favorable construction of the pleadings and the evidence. McAtee v. W. & S. Life Ins. Co., 82 Ohio App., 131, 81 N. E. (2d), 225. In determining the questions involved this court is not permitted to weigh the evidence. Section 11601, General Code; Wilkeson v. Erskine & Son, 145 Ohio St., 218, 61 N. E. (2d), 201; Krueger v. S. Brewing Co., 82 Ohio App., 57, 79 N. E. (2d), 366; 39 Ohio Jurisprudence, 799, Section 182.

In the case of Wilkeson v. Ershine & Son, supra, the fourth paragraph of the syllabus is as follows:

“Where there is no defect in the statements contained in plaintiff’s pleadings and there is substantial evidence from which a reasonable conclusion might be drawn that defendant was guilty of negligence proximately causing plaintiff’s injury a motion non obstante veredicto attacking a verdict in favor of plaintiff may not be sustained. The weight of the evidence is not involved upon such motion. (Section 11601, General Code.)”

We have no difficulty in finding that the plaintiff’s second amended petition states a good cause of action.

The question for determination is whether the defendant is entitled to judgment as a matter of law. The plaintiff charged three specifications of negligence, to wit: First, that the defendant operated its two tractor-trailers across the center line and on the wrong side of the highway; second, that the defendant’s tractor-trailers were driven at a high and dangerous rate of speed, considering the width, surface and condition of the highway, to wit, at a speed of 50 miles per hour; and, third, that the second tractor-trailer was being operated at a distance in the rear of the first tractor-trailer which was closer than was reasonable and prudent, with due regard for the speed of such tractor-trailers, the weather, the condition of the highway, width thereof and the traffic on the highway, to wit, at a distance of 50 feet.

The defendant charged the driver of the automobile iii which the plaintiff was an occupant with excessive speed.

There is a conflict in the testimony as to the speed of the automobile in which the plaintiff was an occupant and of the two tractor-trailers of the defendant company, the position of the tractor-trailers and automobile on the highway at the moment of impact, the distance maintained between the two tractor-trailer outfits, and the manner in which the automobile collided with the second tractor-trailer. The plaintiff and defendant had at the time of trial, and still have, different theories as to the manner in which the collision occurred. Both direct and circumstantial evidence was admitted in support of the two contentions. There is circumstantial evidence to support plaintiff’s claim from which a conclusion might reasonably be drawn that the defendant was guilty of negligence proximately causing plaintiff’s injuries.

The defendant submitted several interrogatories. Interrogatory No. 1 is as follows:

“Do you find that the defendant was guilty of any act or acts of negligence which directly and proximately caused the collision and the injuries' claimed by plaintiff?” The jury answered, “yes.”

Interrogatory No. 2 is as follows: “If your answer to interrogatory No. 1 is ‘yes’ designate below such act or acts of negligence.” The jury answered, “Driving at an excess of speed. Driving second truck too close to first truck.”

Interrogatory No. 3 is as follows: “If your answer to interrogatory No. 1 is ‘yes,’ do you fmd on the part of the plaintiff, Dale E. Jolley, any act or acts of negligence causing or contributing to cause the collision and the injuries claimed by plaintiff?” The jury answered, “no.”

Interrogatories Nos. 4 and 5 requested the jury to answer whether or not the drivers of the two tractor-trailers were guilty of any act or negligence directly and proximately causing the collision and injuries to the plaintiff. The jury answered “yes” to both of these interrogatories.

The fact that the jury failed to find, in answer to interrogatory No. 2, in favor of the plaintiff upon the first specification of negligence, to wit, that the tractor-trailers were operated across the center line and on the wrong side of the highway, is not inconsistent with a verdict for the plaintiff. The first interrogatory required the jury to find whether the defendant was guilty of any acts of negligence which directly and proximately caused the collision and injuries claimed by the plaintiff. The second interrogatory required the jury to designate such act or acts of negligence. Both interrogatories involved the element of proximate eause. The answer to interrogatory No. 2 supports the second and third specifications of negligence as alleged in the second amended petition, either of which is sufficient to support the verdict.

It is contended by the defendant that since the jury failed to find, in answer to interrogatory No. 2, that the defendant’s tractor-trailers were operated across the center line and on the wrong side of the highway, as charged in the first specification of negligence, the defendant was entitled to judgment as a matter of law on the ground that the second and third specifications cannot be considered as the direct and proximate cause of the accident and injuries to the plaintiff. It does not necessarily follow that the jury found that the defendant was operating the tractor-trailers at all times on the right, side of the center of the highway. True, a specification of negligence on which the jury fails to make a finding is tantamount to a finding against the party which has the burden of proof. Masters v. N. Y. C. Rd. Co., 147 Ohio St., 293, 298, 70 N. E. (2d), 898. However, the second interrogatory, as. submitted, required the jury to state the acts of negligence of which the defendant was guilty which were the proximate cause of plaintiff’s injuries. The jury may have concluded that the tractor-trailers of defendant were being operated across the center line and on the wrong side of the highway but that this act of negligence was not the proximate cause of plaintiff’s injuries.

The verdict can and must rest upon the answers to the interrogatories as given, which are sufficient to support the verdict. We cannot agree that, assuming there was evidence to justify the finding reached by the jury, the negligent acts of which the defendant was found guilty could not as a matter of law have been the proximate cause of the accident and the injuries to the plaintiff. What was the proximate cause was a question for the jury, since different inferences may be drawn from the evidence submitted. 29 Ohio Jurisprudence, 742, Section 207.

The jury found, in answer to interrogatory No. 3, that the plaintiff was not guilty of any act or act;s of negligence causing or contributing to the cause of the collision and plaintiff’s injuries. Any acts of negligence of which the driver of the automobile was guilty could not be imputed to the plaintiff as a matter of law.

We fail to find prejudicial error in the action of the trial court in overruling the motion for judgment non obstante veredicto and entering judgment on the verdict., We find no assignments of error well made.

Judgment affirmed.

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


author: Miller, P. J.

text:
    Shapiro, Appellant, v. Butts, Appellee.
    (No. 4397
    Decided June 5, 1950.)

      Messrs. Herbert £ Dornbey, for appellant.

      Messrs. Benoy £ Sebastian, for appellee.
   Miller, P. J.

This cause comes before this court upon appeal on questions of law from the Court of Common Pleas of Franklin County. The action arose out of an automobile accident at the intersection of 18th and Fulton streets in the City of Columbus on October 18, 1947. The plaintiff was a passenger in an automobile proceeding in a southerly direction on 18th street. The defendant was the driver of an automobile proceeding in an easterly direction on Fulton street. The two vehicles came into collision in the intersection of 18th and Fulton streets, resulting in certain injuries to the plaintiff.

The record conclusively shows that on the southwest corner of said intersection there was a stop sign on Fulton street which contained the word “Stop” in letters five inches in height. It was stipulated and agreed by counsel that by ordinance 18th street is designated a “through street.” Counsel for the appellee, however, are contending that it was not a “through street” because the sign did not- meet the statutory requirements. At the close of all the evidence and before argument, on the basis of the uncontradicted evidence that the stop sign contained letters only five inches in height, counsel for the defendant requested the court to instruct the jury that said sign did not meet the legal requirements; that 18th street was not a through highway and that the defendant being to the right had the right of way provided he was proceeding in a lawful manner. The court so instructed the jury which returned a verdict in favor of the defendant. All the assignments of error are grounded upon the special instructions given to the jury at the defendant’s request as previously stated.

The record discloses that the stop sign in question was installed on May 22,1939. Although it was stipulated and agreed that by ordinance 18th street was designated a through street, the record is silent as to the date of the adoption of said ordinance. In the absence of a showing to the contrary it must be presumed that the stop sign was lawfully erected on said date. Bartlett v. McDonald, 59 Ohio App., 85, 17 N. E. (2d), 284. The authority of a municipality to create additional “main thoroughfares” on May 22, 1939, was found in Section 6310-32, General Code (114 Ohio Laws, 161), which provided:

“Local authorities shall have the right to designate by ordinance or resolution additional main thoroughfares and to designate what vehicles shall have the right of way at intersections of main thoroughfares; provided, however, that legible and appropriate signs be erected along the roads and highways intersecting such main thoroughfares, and that such signs outside the corporate limits of a municipality, shall not be nearer than one hundred feet from such intersection.” It will be noted that the above section of the General Code required only that “legible and appropriate signs be erected. ’ ’ The record clearly establishes that the sign met these requirements. Therefore, 18th street became a main thoroughfare on May 22, 1939, and was such on October 18, 1947, provided Section 6307-63 (c), General Code, does not have application. In order to determine the requirements of this subsection of the Code it becomes necessary to consider also Section 6307-63 (b), General Code, which requires the erection of stop signs. These subsections of the General Code became effective September 6, 1941, and provide:

“(b) The department with reference to state highways, and local authorities with reference to other highways under their jurisdiction may designate additional through highways and shall erect stop signs on all streets and highways intersecting such through highways, or may designate any intersection as a stop intersection and shall erect like signs at one or more entrances to such intersection.

“(c) Every said sign shall bear the word ‘stop’ in letters not less than six inches in height. Every stop sign shall be located as near as practicable at the property line of the highway at the entrance to which the stop must be made, or at the nearest line of the crosswalk thereat, or, if none, at the nearest line of the roadway.”

Now when these subsections became effective, did the General Assembly intend to void every ordinance of every city and town in the state that had authorized stop signs whose letters were less than six inches in height? Certainly if such was the intention the General Assembly would have so expressed itself, but it did not do so. It merely authorizes local authorities after the date of the enactment to create “additional through highways” and in so doing stop signs shall be erected bearing the word “stop” in letters not less than six inches in height. It is apparent that 18th street could not have been designated a “through highway” under Section 6307-63, General Code, as this section had not been enacted when it was created. As previously stated, 18th street was created a stop street by virtue of Section 6310-32, General Code, and all of its requirements were fully complied with. Upon the repeal of Section 6310-32, General Code, on September 6, 1941, and the enactment on that date of Section 6307-63, General Code, the authority of the municipality was continued and it was not necessary that a new ordinance be enacted. As the record is silent on this point the presumption must prevail that a new ordinance was not enacted under the new authority. The General Assembly must also be presumed to have been cognizant of the fact that numerous through highways, had been created by ordinance prior to September 6, 1941, which were required to be marked only by “legible and appropriate signs,” and upon its failure to include them in Section 6307-63(c), General Code, we conclude it was the intention not to disturb the stop signs that had been previously legally installed. Therefore the stop sign in question was a valid sign and the court erred in its instruction to the jury*

The judgment is reversed and cause remanded for further proceedings according to law.

Judgment reversed.

Hornheck and Wiseman, JJ., concur..


author: Hurd, J.

text:
    The State, ex rel. Johnson, Appellee, v. Ruffin, Appellant.
    (No. 21959
    Decided November 13, 1950.)

      Mr. J. F. Dragga, for appellee.

      Mr. Jonas Abrams, for appellant.
   Hurd, J.

While this is an appeal on questions of law from Juvenile Court in a bastardy proceeding, we have before us for immediate consideration only the motion of the appellant “to compel the trial judge to complete transcript and file same in this court.” This motion is directed to the proceedings held before the judge of Juvenile Court on May 19, 1950, the day of the preliminary examination of the complainant, under oath, in pursuance of the provisions of Section 12111, Genera,! Code.

It should be noted that the defendant on. this appeal heretofore filed a bill of exceptions containing a transcript of the proceedings held before thé trial judge on June 19 and J.une 26, respectively, on a motion by appellant to be permitted to change his plea from “guilty” to “not guilty.” It is claimed by defendant that all the proceedings of the preliminary hearing of May 19, 1950, were transcribed by a stenographer and court attache and later introduced as part of the evidence and proceedings on June 26, 1950, by the trial judge.

Unfortunately for the defendant the bill of exceptions containing all these proceedings was not filed until 49 days after the final order, and on motion was stricken from the record because it was not filed within the time required by law.

The transcript filed in this' court sets forth the written examination of the complainant in answer' to questions propounded by the trial judge, duly subscribed by the complainant, and on its face appears to be regular in all respects.

In addition the transcript of the record shows by journal entry of May 19, 1950, that the charge was read to defendant to which he first entered a plea of “not guilty” and then upon being ordered to furnish cash bond in the sum of three hundred dollars, the minimum amount required by law, thfe defendant entered a plea of “guilty” as charged in the complaint. Thereafter on the 26'th day of May, 1950, the defendant filed a motion to change the plea to “not guilty” and it is from the order overruling the motion to change the plea that appeal is had to this court.

Sections 12111 and 12112, General Code, provide as follows:

“Section 12111. On the return of the warránt, the justice or judge shall examine the complainant, under oath, in the presence of the accused, respecting the cause of her complaint. The accused- shall be permitted also to ask her, when under oath, any question he may think necessary for his defense.”

11 Section 12112. The examination of complainant by the judge or justice, the questions of the defendant and the answers thereto by her must be reduced to writing, in the presence of the judge or justice, and subscribed by her.”

By these sections which are clear and unambiguous, provision is made for the examination of the complainant under oath by the trial judge and the accused and for the reduction thereof to writing which shall he done “in the presence of the judge or justice and subscribed” by the complainant. It is well settled that no witness other than the complainant can be examined upon preliminary hearing and the trial judge is authorized to administer the oath only to the complainant. See Hamm v. Wickline, 26 Ohio St., 81; Walker v. Chandler, 15 Ohio App., 292.

Obviously the defendant is entitled to have before this court in writing the questions of the trial judge and of the accused (if any) and the answers of the complainant, and in this respect the statutory requirements have been met. But the defendant is not entitled to an order from this court requiring the trial judge to incorporate into the transcript other proceedings had at that time or at a later time by way of substitution for a bill of exceptions.

It is a fundamental proposition of law that a court of record speaks through its records alone. See 35 Ohio Jurisprudence, 17, Records, Section 14, where the author, supported by Ohio cases too numerous to cite, states in part as follows:

“A court speaks through its records alone; it is, therefore, a long-established general rule that in judicial proceedings of a court of record of competent jurisdiction the record is conclusive and imports absolute verity. This is true of a probate court acting as a juvenile court, as well as of a municipal court.”

Sections 12111 and 12112, General Code, above quoted, do not require the judge of the Juvenile Court to include as part of the transcript all the proceedings which took place at the preliminary hearing, and this court is without jurisdiction to compel the trial judge to do anythirig other than is provided by law.

Therefore, without in any wise determining the merits of this appeal, we conclude that the motion to compel the trial judge to add to or complete the transcript of all the proceedings on the preliminary hearing of May 26, 1950, must be and is overruled.

Motion overruled.

Skeel, P. J., and McNamee, J., concur.


text:
    Pennington, Appellee, v. First Discount Corporation, Appellant.

      (No. 7459
    Decided June 25, 1951.)

      Mr. Harry M. Wasserman and Mr. Earl J. Goldsmith, Jr., for appellee.

      Mr. Jacob S. Hermann, for appellant.
   Per Curiam.

This is an appeal from a judgment in favor of the plaintiff, the mortgagor of an automobile, against the defendant, the assignee of the mortgagee,, for damages resulting to the mortgagor from the seizure and sale of the automobile by such assignee.

The plaintiff alleged that he bought the automobile from Ohio Motor Sales of Dayton, Ohio, on August 13, 1948, for the sum of $2,400; that he paid $305 in cash and was given credit of $395 for a secondhand automobile, which he transferred to the vendor at the time, leaving a balance of $1,700 still due, to secure which he gave a chattel mortgage to the vendor for $2,197.20, which included $497.20 for insurance premium and finance charges; and that this unpaid balance was evidenced by a note secured by the mortgage and was payable in monthly instalments of $91.55, the first instalment being payable on September 20, 1948. The plaintiff alleged also that he made payments, without specifying the number, when he requested the defendant, to whom the mortgage had been assigned, to extend the time of payment, which the defendant agreed to do, in consideration for which the plaintiff agreed to pay interest. He alleged also that on January 22, 1949, the defendant took possession of the automobile, concealed it from him, refused to allow prospective purchasers to inspect it, finally sold it, and on April 23, 1949, notified him' of the sale; that he still owed $860.13; that he was never notified of the date, time, . or place of sale; and that the reasonable value of the automobile was far in excess of the price for which the defendant sold it.

The plaintiff alleged further that the seizure and sale were wrongful, and that he had been damaged in the sum of $2,400, the alleged value of the automobile. There was no allegation or proof of any circumstances that would justify the awarding of punitive damages.

The defendant’s answer contained parallel allegations relating to the purchase of the automobile by the plaintiff and the execution of the note and mortgage for the unpaid balance. It alleged that the note was endorsed to defendant 'without recourse in the regular course of business, and that the mortgage was assigned to defendant. The defendant then pleaded the provisions of the mortgage, authorizing it upon default to take possession of the automobile, sell it at public or private sale without notice and apply the proceeds of sale upon the mortgage debt, all of which became due at once upon default of any payment. The defendant alleged that plaintiff made one payment of $91.50 and another payment of $50, and thereupon became in default.

The answer contained a general denial of all the allegations of the amended petition not specifically admitted to be true. It. ended with a prayer that the amended petition be dismissed, and that defendant be awarded its costs.

The evidence supported the allegations of the pleadings as to the execution and transfer of the note and mortgage, that only $141 had been paid on the debt, that the plaintiff was in default at the time defendant took possession, and that defendant was within its rights under the mortgage in taking possession of and in selling the automobile. Whether there is any evidence of dereliction of duty in the manner of sale, we find it unnecessary to determine. Defendant realized $1,200 from the sale.

The jury returned a verdict .for the plaintiff in the sum of $750. Without objection, this question was submitted to it: “What was the fair and reasonable value of the 1947 Chevrolet mentioned in the amended petition, on January 22, 1949?” Its answer was, $1,950.

Under common-law forms, this action would be classed as an action in trover for the conversion of an automobile. While we have substituted for common-law forms of action, the one civil action, the substance of the cause of action remains the same. It is an action for damages on account of being deprived of personal property. One of the essential elements of the plaintiff’s case is proof of title. The burden of proving title rests upon the plaintiff. No burden rests upon the defendant to prove that he has a better title.

In this case, since the facts are admitted, we are not concerned with the question of what evidence of title would be sufficient to sustain a verdict.

The plaintiff and defendant each owned a limited title to the automobile, the plaintiff as mortgagor, and the defendant as assignee of the mortgage. We do not think it important who has the legal title. The fact is that the defendant had a proprietary interest to the extent of $2,080.13, including repossession and sales expense, and the plaintiff’s title was subject to that incumbrance.

If it had been the duty of the defendant to so conduct the sale as to realize the full reasonable value of the1 automobile (which we do not find) and had defendant realized that amount, found by the jury to be '$1,950, and had paid that amount to the plaintiff, it would have been plaintiff’s duty to immediately repay it to the defendant. The law does not require the doing of a vain thing.

Of course there are cases where a plaintiff having a special or qualified title is permitted to recover the full value of the property, but that is where the general title is dwned by a third person and not where it is owned by the defendant. In such case, the plaintiff becomes a trustee for the owner of the general title; That has no application where the defendant is the owner and the plaintiff would be obliged to account to him. Bowers Treatise on the Law of Conversion, 464, 512, Sections 634, 682. In 10 American Jurisprudence, 832, Section 175, it is stated that “generally in an action for conversion the mortgagee is entitled to recoup the amount of the mortgage debt.”

■ The highest valuation placed upon the automobile by any witness was $2,000.

In view of this situation, it is manifest that no verdict in plaintiff’s favor could stand. The court should have sustained the defendant’s motion for an instructed verdict and its motion for judgment notwithstanding the verdict. Therefore, it becomes unnecessary for us to pass upon the alleged errors in the charge of the court.

■ For these reasons, the judgment is reversed and final judgment entered for the defendant.

Judgment reversed.

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