author: Matthews, J. Ross, J.,

text:
    Luken, Appellee, v. Buckeye Parking Corp., Appellant.
    (No. 6548
    Decided November 13, 1945.)

      Mr. Wm. J. Riélly and Mr. James M. McPherson, for appellee.

      Mr. Clarence M. Smith, for appellant.'
   Matthews, J.

The jury found in favor of the plaintiff and the court rendered judgment thereon against the defendant for the value of an automobile as found by the jury. This appeal is from that judgment.

The plaintiff alleged in her petition that-the defendant was in possession of premises at 107-117 Opera Place, Cincinnati, Ohio, and was operating thereon a parking lot, and on which as bailee for hire it received automobiles; that on June 27, 1944, she drove her automobile into such parking lot and delivered it to defendant’s custodian in charge under an agreement whereby defendant, in consideration, of the usual charge, agreed to protect it and redeliver it to her on demand; that later on the same day she returned to demand redelivery of the automobile upon payment of the parking charge which she was prepared to pay,- but no one was in attendance at the parking lot; and that as she was unable to locate her automobile on the lot, she followed the instruction on a- sign that if automobile was not on lot to call at another parking lot operated by defendant, and went to the other lot and there demanded that the custodian deliver her automobile to her, but he refused so to do.

By answer, the defendant admitted that it was in possession of the premises in question and denied all other allegations.

It was developed at the trial, without contradiction, that the plaintiff had been in the habit, for about two years, of parking her automobile on an average of about once a week on this lot, and went to the parking lot on the day in question in pursuance of that habit. On entering the parking lot, she found nothing different from its appearance on previous occasions. The sign above the entrance proclaiming that it was a parking lot was in position as usual. The entrance was open and unobstructed. As many as two dozen automobiles were parked at different places on the lot. A young man, with what appeared to be parking tickets in his hand, came from between two of these parked automobiles and approached her. Supposing he was the attendant, she asked him if he would place her automobile and he said he would. He asked her how long she intended to park the automobile and when she told him about an hour, he said that in view of that she could leave the automobile where it could be easily taken out and that she would not need a parking ticket. He asked if the keys were in the automobile and when told they were, he said: “You can go. I will take care of the car.” She saw him get in the automobile, but left before he had moved it from the place near the entrance where she had stopped it. While talking to her about parking the automobile, he asked her for thirty cents to park the automobile and she told him that she would pay when she returned for the automobile, as she was in the habit of doing. She said she had parked there before without receiving á ticket, but as a general rule a ticket had been given to her. This was the first time she had been asked to pay in advance there, but she had paid in advance at other parking-places.

Testimony on behalf of the defendant disclosed that it had possessed this parking lot for several years, upon which it had conducted a parking lot business, that there was a sign at the entrance advertising the fact that it was a parking lot, and that in the conduct of the business it had been in the custom of issuing tickets to patrons, at the- top of which was its name in bold type, and thereunder was a “liability clause.”

It was testified that the defendant had been unable to employ an attendant just prior to this date and bad placed a log across the entrance to indicate that it was closed, but that this log bad been removed to tbe defendant’s knowledge.

It was also testified that tbe young man wbo bad assumed to take care of the-plaintiff’s automobile had applied for the position that morning, but the manager had declined to employ him, because he did not know how to drivé. It developed later that the young man was 17 years old and some time before that • had been adjudged feeble-minded and committed to a public institution, from which he was paroled at the time: . .

There was no evidence that anyone representing defendant knew that the young man was on the lot and assuming to represent it in conducting the business.

After the plaintiff left the parking lot, the young man took her automobile from the lot and at some place on the public street there was a collision in which the automobile was wrecked.

The defendant ?s general manager testified that he believed automobiles were parked on the lot when no attendant was there. The inference is that the defendant collected nothing for this, although there is no direct testimony to that effect.

The principal contention of the defendant is that there was no evidence to submit to the jury, and that the court should, therefore, have sustained its motions for an instructed verdict and for judgment.

As we interpret the record, there is evidence tending to prove that the owner of a business, carried on at a designated place, concluded to discontine it for a short interval, but gave no notice of such discontinuance, and allowed the place to remain open and unattended, and the business signs to remain in place during the interval during which an impostor took advantage of the situation to enter the place and transact the business as though he were authorized. A customer who had been a patron for two years repaired to. the place and transacted the customary business with the impostor under the circumstances set forth.

Now what were the duties of the parties under these circumstances?

Section 103 of Restatement of Raw of Agency is:

‘‘A person who untruthfully manifests'to a third person that an act purported to be done on his account was authorized or ratified in a manner sufficient for authorization or ratification, or that an act done by' another who impersonates him was done by him, knowing or having reason to know that the third person is likely to act in reliance upon such manifestation, is subject to liability as if such act were authorized or ratified or had been done by him, if the third person so changes his position in reasonable reliance upon such manifestation that it would be inequitable not to impose such liability.”

In 1 Ohio Jurisprudence, 632, Section 10, it is said:

“* * * where one by word or conduct purposely causes another to believe in the existence of a certain state of things, and induces him to act on that belief so as to alter his previous position, the former is precluded from averring against the latter a different state of things as in fact existing at -the same time. The estoppel is allowed on the ground of negligence or fraud on the part of the principal, upon the theory that when one of two innocent persons must suffer loss, the loss should fall upon him whose conduct brought about the situation. ’ ’

And at page 633, Section 10:

“Under the principle that one may be estopped to deny the authority of another to act as agent, a hotel proprietor who leaves another in the hotel office, either designedly or negligently, clothed with apparent authority to do what hotel clerks usually do, may be held liable to a guest, who, finding such person apparently in charge of the hotel, deposits money with him for safe-keeping during the night, with which this person later absconds, although the proprietor denies that the person was his agent.”

See, also, 2 American Jurisprudence, 86 el seq., Section 104.

The syllabus to Miltenberger v. Hulett, 188 Mo. App., 273, 175 S. W., 111, states the essence of the decision as follows:

“If the proprietor of a baggage transfer office, by negligence, permits one who is not his agent to be in apparent charge of his office and who assumes to transact the proprietor’s business by accepting a check from a stranger for the latter’s trunk to be taken to his boarding house, and the appearances are such as would lead a man of ordinary care to believe the imposter was really the proprietor’s agent, the latter will not be permitted to take advantage of the imposter’s lack of authority, when sued for the loss of the trunk.”

In Quint v. O’Connell, 89 Conn., 353, 357, 94 A., 288, the Supreme Court of Errors of Connecticut said:

“Apparent and ostensible authority is such authority as a principal intentionally, or by want of ordinary care, causes or allows a third person to believe that the agent possesses. This authority to act as agent may be conferred if the principal affirmatively or intentionally, or by lack of ordinary care, causes or allows third persons to act on an apparent agency. It is essential to the application of the above general rule that two important facts be clearly established: (1) That the principal held the agent out to the public as possessing sufficient authority to embrace the particular act in question, or knowingly permitted Mm to act as having such authority; and (2) that the person • dealing with the agent knew of the facts and acting in good faith had reason to believe and did believe that the agent possessed the necessary authority. ‘The apparent power of an agent is to be determined by the acts of the principal and not by the acts of the agent; a principal is responsible for the .acts of an agent within his apparent authority only where the principal himself by his acts or conduct has clothed the agent with the appearance of authority, and not where the agent’s own conduct has created the apparent authority. The'liability of the principal is determined in any particular case, however, not merely by what was the apparent authority of the agent, but by what authority the third person, exercising reasonable care and prudence, was justified in believing that the principal had by his acts under the circumstances conferred upon his agent.”

See, also, Herschenhart v. Mehlman, 125 Misc., 887, 213 New York Supp., 48; Dennis v. Coleman’s Parking & Greasing Stations, Inc., 211 Minn., 597, 2 N. W. (2d), 33; and Kanelles v. Locke, 12 Ohio App., 210.

Under those authorities, we are of the opinion that there is substantial evidence of acts and omissions of defendant creating an apparent authority and upon which to base an estoppel of the defendant to deny that the impostor was its duly authorized agent in favor of a customer who was justified in relying, and in fact did rely on the appearance of authority. But the customer could only be justified if he believed in good faith, after exercising reasonable care and prudence, that the person who was assuming'to act as an agent was in truth an agent and was acting within his authority.

While in this case there are- acts and omissions on the part of the defendant that might’ cause a reasonably prudent person to conclude that tbe parking lot was being operated that day as usual and cause her to enter and entrust her automobile to tbe - attendant whom she bad reason to anticipate would be there to serve ber, tbe conduct of tbe impostor who attended ber was unusual in some respects and might have aroused tbe suspicion of a reasonably prudent person and caused inquiry and disclosure of tbe imposition. This situation raised issues for submission to tbe jury. _ _ .

_ _ We are, therefore, of tbe opinion that tbe court did not err in overruling motions for an instructed verdict and for judgment. We come then to a consideration of whether there was error in tbe manner of submission to tbe jury.

As already noted, tbe liability of tbe defendant depended upon tbe decision of two issues:

(1st) Was tbe defendant negligent in allowing tbe ■ parking lot to remain open and unattended?

(2nd) Was tbe plaintiff, exercising reasonable care and prudence, misled by tbe conduct of tbe defendant into believing that tbe parking lot was in operation and caused to leave ber automobile on tbe lot in charge of the impostor in tbe belief as a reasonably careful person that he was tbe defendant’s duly authorized agent.

An examination of tbe charge discloses that tbe court read tbe pleadings to tbe jury, but did not state tbe issues in any other way, and submitted tbe case on tbe theory that liability depended upon establishing a prima facie case of actual authority of tbe attendant, and proof of failure to use due care for the protection of tbe automobile. We think it is sufficient to quote this portion of tbe charge:

“If you find that tbe contention of tbe defendant is correct, that on June 27, 1944, this parking lot was closed to the public; that the individual who purported to be a representative of the company was not in fact an employee of the company, had no authority to act for and on behalf of the company, under such circumstances, you will return a verdict in favor of the defendant.

“But if you find by a preponderance of the evidence in this case that there was a contract of bailment, that the individual who purported to be the agent of the defendant corporation on the parking lot at the time in question was, in fact, the employee of that corporation, then you will consider whether the explanation of the defendant as to the manner in which the car was taken from the lot, * * *.”

We are of the opinion that the court erred in so defining the issues to the jury and in so charging as to the basis of liability.

For these reasons, the judgment is reversed and the cause remanded for further proceedings according to law.

Judgment reversed.

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

Ross, J.,

concurring. I concur in the conclusions of. my associates that the judgment of the trial court should be reversed, but an examination of the pleadings and evidence, in my opinion, requires that judgment in this court be rendered for the defendant.

The ultimate facts stated in the petition are: (1) That the defendant is an Ohio corporation engaged in the business of operating parking lots; (2) that on June 27, 1944, it operated a particular location as a parking lot on the south side of Opera Place, between Race and Elm streets, Cincinnati; (3) that on said 27th day of June, 1944, plaintiff drove her automobile, being a five-passenger Hudson 1936 model Terraplane, motor No. 222393, serial No. 6149692, into the parking lot, and delivered it to defendant’s custodian in charge of the parking lot under an agreement whereby defendant, in consideration of the usual charge to be paid therefor by plaintiff, agreed with plaintiff to protect and keep the automobile for redelivery .to her on demand; (4) that plaintiff later, on the same day, returned to such parking lot for redelivery of her automobile but “said automobile had been removed from said lot;” (5) “that the custodian of defendant to whom she had previously delivered” such automobile was absent therefrom; (6) that the lot was allowed by defendant to be unattended; (7) that defendant placed a sign on the lot directing patrons if their automobiles were not on the lot to call at another address, where defendant operated another parking lot; and-(8) that plaintiff called at such address and her demand for the return of her automobile was refused by defendant’s agent and custodian in charge of such lot.

In the answer of defendant it is admitted: (1) That the defendant is a corporation as alleged; and (2) that it is in possession of the premises on Opera Place. Otherwise, the answer is a general denial.

Now1', the plaintiff introduced evidence sustaining entirely different ultimate facts. The introduction of such evidence was permitted, over the continued objection and protest of the defendant, who at the close of all the evidence moved for an instructed verdict on the ground that plaintiff had failed to prove the necessary allegations of the petition. There was no amendment to the petition, nor was any requested.

The evidence submitted by the plaintiff did present a prima facie case that the defendant had so negligently used the premises on Opera Place that the plaintiff was caused to lose her property as the direct and proximate result of such negligence. Now, such negligence is to be distinguished from that involved after the relationship of bailor and bailee is established. The evidence wholly fails to show any such relationship between plaintiff and defendant, but, on the contrary, conclusively established that no such relationship existed.

No contract between plaintiff and defendant to use care was ever proved. Such contract is alleged in the petition, the plaintiff alleging in terms a specific contract of bailment, with “defendant’s custodian in charge of said parking lot under an agreement whereby defendant in consideration of the usual charge to be paid therefor by plaintiff agreed with plaintiff to protect and keep said automobile for redelivery on her demand.” (Emphasis added.)

Such “custodian” was a feeble minded trespasser with whom the defendant had not the slightest contractual relationship. It is true that plaintiff could have alleged the cause of action in tort or estoppel, if you wish, concerning which she introduced evidence. The patent factor is, however, she did not, and the result is, if the conclusion of the majority of the court is correct, that she is permitted to allege specifically a cause of action in contract and sustain the same .by evidence which supports only a primary tort liability entirely disassociated with'any suggestion of contractual relationship between plaintiff and defendant. '

I realize that this state, both by statute and decisions, has gone to the furtherest extreme in permitting loose pleading and proof. Section 11363, General Code, (amendment) and Section 11556, General Code (variance) are examples of provisions for such pleading and proof. However, the Legislature has placed some limit upon the extent to which amendment may be carried. '

Section 11363, General Code, provides that the court may permit amendment only “when the amendment, does not substantially change the claim or defense.” And, again, although a variance between allegations and proof may not be deemed material unless a party has been misled, still in Section 11558, General Code, it is provided:

“When the allegation of the claim or defense to which the proof is directed, is unproved, not in some particular or particulars only, but in its general scope and meaning, it shall not be deemed a case of variance within the next two preceding sections, but a failure of proof. ”

It seems to me that the last quoted section has direct application to the instant case. I am also aware of the recent decisions of the Supreme Court in which ‘•‘a liberal construction of a petition is required.” Gugle v. Loeser, 143 Ohio St., 362, 55 N. E. (2d), 580; Parletto v. Industrial Commission, 140 Ohio St., 12, 42 N. E. (2d), 153; Humphries v. Wheeling Steel Corp., 132 Ohio St., 263, 7 N. E. (2d), 230; Guardian Life Ins. Co. v. Veser, 128 Ohio St., 200, 190 N. E., 405. Nor ám I forgetful of the decision of the Supreme Court in Globe Indemnity Co. v. Wassman, 120 Ohio St., 72, 165 N. E., 579, where in the third paragraph of the syllabus it is stated:

' “Where a plaintiff is uncertain as to which of the two grounds stated in his petition he may be able to prove in order to recover against a defendant and it is uncertain as to which of the two he can safely plead, he cannot be required to elect upon which of the two grounds he will stand.”

To the same effect is Sicard v. Kremer, 133 Ohio St., 291, 296, 13 N. E. (2d), 250.

Iu the instant case the plaintiff could have taken advantage of that ruling. She did not. She chose to predicate her claim for relief upon allegation of facts which could only sustain a cause of action in contract. However, it was determined in Nordin v. Coulton, 142 Ohio St., 277, 51 N. E. (2d), 717, that: “The naturé of a case is determined from the pleadings and the issues presented.” And in Mahoning National Bank v. City of Youngstown, 143 Ohio St., 523, 532, 56 N. E. (2d), 218, it is held that issues to be determined in an action are those made by the pleadings at time of trial. In Gerend v. City of Akron, 137 Ohio St., 527, at page 531, 30 N. E. (2d), 987, it is stated:

“The function of the pleadings in the trial of a cause is to apprise the court and the parties of the respective grounds of the controversy, furnish the question to be tried, and determine the nature and scope of the trial. ’ ’

See, also, Kelley v. Armstrong, 102 Ohio St., 478, 132 N. E., 15_

_ It is true that a plaintiff, having stated facts in a petition entitling him to relief of some sort, may not be denied same, because he may have mistaken the nature of such relief. Triff v. National Bronze & Aluminum Foundry Co., 135 Ohio St., 191, 20 N. E. (2d), 232, 121 A. L. R., 1131; Schaefer v. First National Bank of Findlay, 134 Ohio St., 511, 520, 18 N. E. (2d), 263.

The real difference between the members of this court is as to the effect of the allegations of the petition. It is the conclusion of the majority that the facts stated in the petition will sustain proof of liability based pri-. marily upon the negligent occupation of the premises in question or an implied contract based upon an estoppel. It is my conclusion that the facts alleged cannot be extended to allege anything but a specific contract.

It seems too well settled in Ohio that in spite of all the liberality of pleading extant, a cause of action in contract may not be changed to one in-tort over the objection of the defendant. 31 Ohio Jurisprudence, 943, Section 337. In this case, no amendment was made or required. It does not seem unjust that a plaintiff should be required to state in a petition the ultimate facts upon which reliance is put for recovery. To permit a plaintiff to state a set of facts which call for a conclusion that a specific contract was violated and on trial prove facts which show only a tort liability is a practice, in my opinion, not conducive to securing substantial justice to all parties in the action.

For these reasons, I feel that judgment should be here entered for the defendant. The motion for an instructed verdict made by the defendant at the close of all the evidence should have been granted. However, I join with my associates in agreement the judgment of the trial court must be reversed for the reasons given.

I do not concur in the syllabus.


source: Caselaw Access Project

author: G-uernsey, J.

license: Public Domain

text:
    The State, ex rel. Townsend, v. Bushong, Supt.
    (No. 881
    Decided June 15, 1945.)

      Mr. Francis W. Durbin, for petitioner.

      Mr. Hugh 8. Jenkins, attorney general, and Mr. H. 8. Zwolinski, for respondent.
   G-uernsey, J.

This is a proceeding in habeas corpus originating in this1 court.

Petitioner, Frank Townsend, alleges that lie has been confined in the Lima State Hospital at Lima, Ohio, since the 7th day of February 1936; and that he is sane and is being unlawfully restrained of his liberty by Dr. R. E. Bushong, superintendent of Lima State Hospital.

In his return to the writ of habeas corpus issued herein, the superintendent represents that he has Townsend in custody, and that he has had such custody since February 7,1936, by virtue of a commitment by the Common Pleas Court of Mahoning county, Ohio, under the provisions of Section 13441-2, General Code.

On the trial of this cause it was stipulated by counsel for the respective parties that at the January term, 1936, of the Common Pleas Court of Mahoning.county, Ohio, an indictment was returned by the grand jury of that county charging that Townsend, on the 15th day of December 1935, in such county unlawfully killed Alvin Townsend, the indictment being filed in the Common Pleas Court of the county and designated as. case No. 14309 on the criminal docket of the court.

It was further stipulated by counsel that certain proceedings were had in the Common Pleas Court on the indictment and in the cause, resulting in an order being, made by the court and entered on the journal thereof at the January term 1936, under' date of January 28, 1936, as follows:

■ “Tliis day comes the prosecuting attorney on behalf of the state of Ohio and it coining to the notice of the court of a claim of insanity of defendant it is ordered by the court that Dr. D. H. Smelzer and Dr. W. X. Taylor be and they are hereby appointed to examine defendant as to sanity.

‘ ‘ This day comes the prosecuting attorney on behalf of the state of Ohio the defendant comes into court in custody of the sheriff and with counsel and this cause coming on for hearing as to sanity or insanity of defendant and a jury being waived the court having heard the evidence of Drs. Smelzer and Taylor and arguments of counsel finds the said defendant is now insane.

“It is therefore considered ordered and decreed by the court that said defendant be taken hence by the sheriff to the jail of Mahoning county and from there to the state hospital for criminal insane at Lima, Ohio, there to be confined until he be restored to reason and to be returned and proceeded against as provided by law.

“It is further ordered that a fee of fifty ($50) each be and is hereby allowed to Dr. D. H. Smelzer and Dr. W. X. Taylor. Clerk ordered to make certified copy of all entries and proceedings in this case.”

Although the return of the superintendent to the writ recites that he has custody of the petitioner by virtue of a commitment by the Common Pleas Court, under the provisions of Section 13441-2, General Code, the commitment was made pursuant to the provisions of both Sections 13441-1 and 13441-2, General Code, which are sections of the Criminal Code of Ohio. The sections are as follows:

Section 13441-1. “If the attorney for a person accused of crime pending in the Court of Common Pleas, whether before or after trial suggests to the court that such person is not then sane, and a certificate of a reputable physician, to that effect is presented to the court, or if the grand jury represents to the court that any such person is not then sane, or if it otherwise comes to the notice of the court that such person is not then sane, the court shall proceed to examine into the question of the sanity or insanity of said person, or in its discretion may impanel a jury for such purpose. If three-fourths of such jury agree upon a verdict, such verdict may be returned as the verdict of the jury. If there be a jury trial and three-fourths of the jury do not agree, another jury may be impaneled to try such question.”

Section 13441-2. “If the court or jury find upon the hearing provided for in the next preceding section, that the accused is sane, he shall be proceeded against as provided by law. If the court or jury find him to be not sane, he shall be forthwith committed by the court to an insane hospital within the jurisdiction of-the court; provided, that if the court deem it advisable, it shall commit such person to the Lima State Hospital until he be restored to reason, and upon being restored to reason the accused shall be proceeded against as provided by law.”

It is well settled at common law that a person while insane cannot be tried, sentenced or executed. 14 American Jurisprudence, 801, Section 44; 23 Corpus Juris ■ Secundum, 233, Section 940.

■ Hence, at common law, if at any time while criminal proceedings are pending against a person accused of a crime, whether before, during or after the trial, the trial court, either from observation or upon the suggestion of counsel, has facts brought to its attention which raise a doubt of the sanity of the defendant, the question should be settled before further steps are taken. 14 American Jurisprudence, 801, Section 44; 23 Corpus Juris Secundum, 233, Section 940.

At common law the method of settling this question is generally within the discretion of the trial conrt and the court itself can enter upon the inquiry or submit the question to a jury impaneled for that purpose. 14 American Jurisprudence, 802; 23 Corpus Juris Secundum, 235.

A trial of the question of present insanity is not a trial of an indictment but is preliminary to such trial, and the object is simply to determine whether the person charged with an offense and alleged to be insane shall be required to plead and proceed to the trial of the main issue of guilty or not guilty. 14 American Jurisprudence, 802.

The only issue presented at a preliminary trial of present insanity is whether the accused has sufficient soundness of mind to appreciate the charges against him and the proceedings thereon, and to enable him to make a proper defense, and, therefore, whether he may be compelled to proceed with the trial of the main issue of guilty or not guilty. 23 Corpus Juris Secundum, 240.

The broad question, of course, is whether the accused, insofar, as it may devolve upon him, may have a full, fair, and impartial trial. A component part of this question is whether the accused is mentally competent to make a rational defense. It is proper to inquire whether the accused, by reason of insanity, comprehends his position, whether he has mind and discretion which will enable him to appreciate the charge against him and the proceedings thereon, or whether he is mentally capable of rendering his attorneys such assistance as a proper defense to the indictment preferred against him demands. 14 American Jurisprudence, 802, 803.

If a person arraigned for a crime is capable of understanding the nature and object of the proceedings against him, and rightly comprehends his own condition iii reference to such proceedings, and can conduct his defense in a rational manner, he is, for the purpose of .being tried, to be .deemed sane, although on some other subjects his mind may be deranged or unsound. 14 American Jurisprudence, 803.

Where on a preliminary trial of the question of present insanity the accused is found to be sane, tlie trial in chief should proceed; and where he is found to be insane, the trial should be postponed pending his recovery and the accused should be kept under restraint.

The sole object of the inquiry being to determine whether the accused shall be compelled to plead and proceed with his trial, if he is found insane his trial must be postponed until he has recovered his sanity, after which he may be tried.

An accused found to be insane should be committed to an asylum in accordance with the provisions of law. 23 Corpus Juris Secundum, 241, 242.

The provisions of. Sections 13441-1 and 13441-2, General Code, above mentioned, as well as the provisions of earlier statutes relating to the same subject matter, extending back to 1831, are simply declaratory and in amplification of the common-law rules above mentioned relating to the subject matter.

Under an earlier form of the statutory provisions now contained in Sections 13441-1 and 13441-2, General Code, to wit, Section 7240, Revised Statutes, it was hold that where a verdict was rendered finding the prisoner to he. sane, error will not lie to review the proceedings, either before or after conviction, such proceedings constituting a trial preliminary to the trial on the indictment and not being final in their nature. Inskeep v. State, 35 Ohio St., 482; Inskeep v. State, 36 Ohio St., 145.

We have made diligent search but have been unable to find any decisions of the higher courts of this state with reference to the nature of the issue presented at a preliminary trial of present insanity, but have found two Common Pleas Court decisions based on the provisions of Section 7240, Revised Statutes, which, as above mentioned, were similar to the provisions of Sections 13441-1 and 13441-2, General Code, to the general effect that the only issue presented at a preliminary trial of present insanity is whether the accused has sufficient soundness of mind to appreciate the charges against him and the proceedings thereon, and to enable him to make a proper defense. Those cases are in accord with the common-law rule hereinbefore mentioned. State v. O’Grady, 3 N. P., 279, 5 O. D., 654; State v. Myers, 7 N. P., 288, 8 O. D., 679.

Statutes of a general nature providing for commitment of the insane are inapplicable to insanity proceedings designed to • determine whether an accused may be tried, in view of his mental condition, such proceedings being merely incidental to. the criminal charge and following the practice in criminal cases. 23 Corpus Juris Secundum, 241.

Prom the authorities above mentioned it is deal’ that the sole purpose of the proceedings to examine into the question of sanity or insanity of the accused, prescribed in Section 13441-1, General Code, is to determine whether the accused has sufficient soundness of mind to appreciate the charge against him and the proceedings thereon, and to enable him to make a proper defense, and, therefore, whether he may be compelled to proceed with the trial of the main issue of guilty or not guilty. It is also clear that such proceedings are merely incidental to the criminal charge and follow the practice in criminal cases.

A finding and adjudication of insanity in such proceedings therefore simply amount to a finding and adjudication that at the time such proceedings are had the accused has not sufficient soundness of mind to apprecíate the charges against him and the proceedings thereon, and to enable him to make a proper defense.

The finding and adjudication having the restricted operation mentioned, the phrase, “until he be restored to reason,” appearing in the last clause of Section 13441-2, General Code, i. e., “provided, that if the court deem it advisable, it shall commit such person to the Lima State Hospital until he be restored to reason, and upon being restored to reason the accused . shall be proceeded against as provided by law, ’ ’ means until the accused has been restored to sufficient soundness of mind to appreciate the charges against him and the proceedings thereon, and to enable him to make a proper defense.

Consequently in this case the only issue presented is whether the accused petitioner has been restored to sufficient soundness of mind to appreciate the charges against him and the' proceedings thereon, and to enable him to make a proper defense.

On this issue this court, giving full effect to the presumptions attending the adjudication of insanity, finds, from the evidence presented, in favor of the petitioner.

It is therefore ordered and adjudged that the peti-, tioner be discharged from the custody of the respondent and returned by him to the custody of the sheriff of Mahoning county, Ohio, to be proceeded against according to law on the indictment. It is further ordered that the state of Ohio pay the costs of this proceeding in the manner provided by law.

In the case of State, ex rel. Wyman, v. Turk, 62 Ohio App., 227, 23 N. E. (2d), 644, this court held that a person under indictment for murder who, prior to the trial therefor, had been committed to' the Lima State Hospital because of insanity, pursuant to the provisions of Sections 13577, 13608 and 13614, General Code, then in effect, which were similar to the provisions of Sections 13441-1 and 13441-2, General Code, now in effect, must, in order to obtain his release by writ of habeas corpus, show that he has sufficient mental capacity to furnish counsel facts which ought to be given at the trial for his crime, and also that he does not have that character of mental unsoundness as to make reasonably probable that, if allowed to remain at large, he will endanger the life, property, safety, peace, health or morals of the public.

In that decision, this court erroneously failed to take into consideration the common-law rules above mentioned as to the nature and' purpose of a proceeding by the court in which an indictment is pending, before the trial of such indictment; to examine into the question of the sanity or insanity of the accused, and the restricted nature of the issue presented at such examination; and to consider that the statutes relating to such examination are simply declaratory of and in amplification of the common-law rules applicable thereto and that such proceeding both at.common law and under the rulings of the Supreme Court of this state constitutes merely a preliminary hearing in a criminal case incidental to the criminal charge and following the practice in criminal cases, upon which the decision in this case is based.

Insofar as that decision requires a person under commitment to the Lima State Hospital, pursuant to the provisions of Sections 13441-1 and 13441-2, General Code, in order to obtain his release from such institution by writ of habeas corpus, to show that he does not have that character of mental unsoundness as to make reasonably probable that, if allowed to remain at large, he will endanger the life, property, safety, peace, health or morals of the public, in addition to showing that he has sufficient mental capacity to furnish counsel facts which ought to be given at the trial of his crime, such decision is overruled.

If it is desirable for the public welfare that the proceeding, by tbe Common Pleas Court in which an indictment is pending, to examine into the question of the sanity or insanity of the person under indictment, shall have a purpose and effect different from that held in this opinion, it is the function of the Legislature to so provide.

So that there may be no misunderstanding as to the effect of the decision in the instant case, we deem it advisable to call attention to the fact that a commitment to the Lima State Hospital, made pursuant to the provisions of Section 13441-3, General Code, when the defendant pleads “not guilty by reason of insanity,” and is acquitted on the sole ground of his insanity, stands on an entirely different basis than a commitment pursuant to the provisions of Sections 13441-1 and 13441-2, General Code, and that the issue presented in an action for writ of habeas corpus by a person committed pursuant to the provisions of Section 13441-3, General Code, is different from the issue presented in a similar action where the commitment is based on the provisions of Sections 13441-1 and 13441-2, General Code.

Petitioner discharged.

Middleton; P. J., and .Jackson, J., concur.


author: Ross, J.

text:
    The State of Ohio, Appellee, v. Parker, Appellant.

      (No. 6545
    Decided October 15, 1945.)

      Mr. Robert J. Paul, for appellee.

      Mr. Lawrence B. Swartz, for appellant.
   Ross, J.

The Common Pleas Court of Hamilton county affirmed a judgment and sentence by the Municipal Court of Cincinnati. From such judgment of affirmance, the defendant has taken an appeal on questions of law and fact to this court.

No appeal on questions of law and fact is or was provided under the Constitution of Ohio from a judgment of the Court of Common Pleas in a matter before that court upon review from the Municipal Court of Cincinnati. This appeal is, therefore, heard as an appeal on questions of law.

Reference to the docket and journal entries of the Municipal Court of Cincinnati develops that trial was had in that court on August 16,1944, upon an affidavit charging the defendant with malicious destruction of property “under $100.” Such trial resulted in a judgment and imposition of a $500 fine. In the affidavit upon which trial was had, the defendant is charged with having maliciously destroyed “clothing” of the value of $499.

On August 17, 1944, a motion for new trial was filed and was granted on December 15,1944. It appears from such transcript of docket and journal entries, that, on the same day, trial was again had upon the same affidavit, no other having been filed, and the defendant was found guilty and sentenced to pay a fine of $200, after motion for new trial was1 overruled. Notice of appeal was filed from such judgment to the Court of Common Pleas of Hamilton county.

From the bill of exceptions, it appears that trial was had on the “9th day of August, 1944,” upon the affidavit. Then follows a narrative statement of the testimony of witnesses for the prosecution and the defendant. The bill of exceptions closes with the following:

“The prosecution and counsel for defendant then presented their respective arguments and the court found the defendant guilty of the charge and said if was finding the value of the goods to be under one hundred ($100) dollars, and fined the defendant five hundred ($500) and costs of court.

“Within three (3) days the defendant filed a motion for new trial in the cause, and the court, upon hearing same on December 15, 1944, granted same and said it had heard all the evidence in the case and was finding the defendant guilty as charged and the value of the goods to be less than one hundred ($100) dollars and fined defendant'two hundred ($200) dollars and costs. On the 16th day of December, 1944, defendant filed another motion for new trial in the cause, and the court, upon hearing same on December 22, 1944, overruled same, from which’ ruling defendant' prosecutes his appeal.”

The trial court having granted the defendant a new trial was bound to rehear the entire cause. The proceedings after the granting of the motion for new trial were evidently considered by the trial court as a hearing for resentence. Such could not be the case after a new trial was granted. The effect of granting a new trial was to place the defendant back in the position he had before the first trial. No new evidence was introduced by the prosecution'and there was, therefore, nothing upon which to predicate a sentence by the court. The memory of the court as to what had occurred on the first trial could not take the place of evidence at the second trial. Although no objection upon the part of the defendant appears in the record, there was, as far as the record shows, nothing he could object to until he was again sentenced, upon which he filed again a motion for new trial, addressed largely to the summary action of the court in refusing him a new trial.

In addition to this, the court in the second judgment - found the value of. the goods destroyed to be under $100. There appears no basis in the record for such finding. In fact there was no evidence of value or any other element of the prosecution’s case given after the court granted the first motion for new trial. ■

However, even if all this unwarranted summary proceeding be ignored, there is still a stronger reason why the judgments of both the Common Pleas Court and the Municipal Court of Cincinnati must be reversed.

The only affidavit filed in the proceeding charged the defendant with the malicious destruction of property of the value of $499.

Section 12477, General Code, provides:

“Whoever maliciously destroys or injures property not his own, if the value of the property destroyed, or the injury done is one hundred dollars or more, shall be imprisoned in the penitentiary not less than one year nor more than seven years, or, if the valué is less than that sum, shall be fined not more than five hundred dollars or imprisoned not more than thirty days, or both.”

Section 12372, General Code, provides in part:

“Offenses which may be punished by death, or by imprisonment in the penitentiary, are felonies;'all other offenses are misdemeanors.”

Section 1558-8, General Code, provides:

“The municipal court shall have jurisdiction of all misdemeanors and of all violations of city ordinances of which police courts in municipalities now have or may hereafter be given jurisdiction. In felonies the municipal court shall have the powers which police courts in municipalities now have or may hereafter be given. ’ ’

Section 4583, General Code, is as follows:

“In felonies committed in the county, the court shall have the powers of a justice of the peace to hear the case, and discharge, recognize or commit. If upon such hearing the court is of the opinion that the offense is only a misdemeanor, and that the court may entertain jurisdiction of it under the preceding section, a plea of guilty of such misdemeanor may be received, and sentence and judgment pronounced. If in such case the accused decline to enter such plea, the court, without discharging the accused shall cause the prosecuting attorney to immediately file in the court an information against the accused for such misdemeanor, on which charge he shall be tried in that court, after an entry has been made discharging him of the felony.”

Under Section 13422-2, General Code, justices of the peace have, in cases of felonies, only power to discharge or recognize the defendant to appear before the proper court. They have no final jurisdiction in such cases or any power to impose any sentence.

As will be noted from the provisions of Section 4583, General Code, supra, the police court is given power, when upon hearing it appears the offense is only a misdemeanor and the defendant refuses to plead guilty to such misdemeanor, to ‘ ‘ cause the prosecuting attorney to immediately file in the court an information against the accused for such misdemeanor, on which charge he shall be tried, in that court, after an entry has been made discharging him of the felony.” (Emphasis added.)

In the instant case, no new affidavit was filed, no new charge of a misdemeanor presented, and no entry discharging the defendant of a felony made, before the second trial, or in fact at any time. The trial court, therefore, had no jurisdiction to pronounce any sentence based upon the affidavit which still constituted the basis of the second trial.

For these reasons, the judgments of the Court of Common Pleas and Municipal Court are reversed and the cause remanded to the Municipal Court of Cincinnati, through the Court of Common Pleas of Hamilton county, for further proceedings according to law.

Judgment reversed.

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


author: Wiseman, J.

text:
    The State of Ohio, Appellee, v. Hickman, Appellant.
    (No. 1874
    Decided December 20, 1945.)

      Mr. Mathias E. EecJc, prosecuting attorney, Mr. M. J. Gilbert and Mr. Fred M. Kerr, for appellee.

      Mr. C. W. Magsig and Mr. Louis R. Mahrt, for appellant.
   Wiseman, J.

This is an appeal on questions of law from the judgment of the Common Pleas Court of Montgomery county, Ohio. The defendant, appellant herein, Lucille Hickman, was tried for murder in the first degree and found guilty with mercy recommended. She was sentenced by the court to the Ohio'Reformatory for Women at Marysville, Ohio, for and during the remainder of her natural life.

The defendant contends that the trial court erred in overruling her motion for a dismissal at the close of the state’s case; that the verdict of the jury is against the manifest weight of the evidence; and that the verdict of the jury is contrary to law. These assignments of error raise the question as to’ the sufficiency of the proof.

A brief statement of the facts will suffice.

We do not believe it is necessary to review all the sordid details leading up to the night of the murder. We have read the record and find that the defendant testified that her husband abused her daughter who lived with them and who was eight years old at the time of the murder. Regardless of how abusive her husband was toward her daughter, such abuse does not furnish sufficient legal justification for killing her husband. Furthermore, regardless of the number of threats which her husband may have made to kill both her and her daughter, such threats alone do not furnish a sufficient legal justification for the killing.

The record in this case shows that the defendant married Paris Cloud in 1933, to which union two children were born, a son, Hooper Clond, and a daughter, Vera Jean Cloud. Later she obtained a divorce and ■ was given the custody of her • daughter, Yera Jean. Sometime after the granting of the divorce, she met George Hickman in the state of Tennessee. George Hickman came to Dayton and secured employment, after which he returned to Tennessee and brought Lucille Hickman, together with her daughter, Yera Jean, to Dayton, where they were married on March 25, 1939. They lived in rooming houses on Fourth street, Proctor, Washington, Robert Boulevard, Bainbridge, McDonough, Chestnut and other places in and around Dayton, Ohio. She testified that in the fall of 1943, after her husband told her that he had already spent too much money on her, and that she was nothing but a cripple, she separated L;oni him and moved to Knoxville, Tennessee, taking her daughter, Yera Jean, with her. Several months later her husband communicated with her, which resulted in her husband going to Knoxville and bringing his wife and step-daughter back to Dayton, which occurred in January of 1944. The defendant testified that during the trip to Knoxville her daughter told her that she had been abused by her step-father; that in December 1944, they visited a friend on Bainbridge street, and at the solicitation of the friend, stayed all night; that she, her husband and her daughter that night slept in one bed; that she was awakened during the night by a conversation taking place between her husband and her daughter, from which she judged that her husband had molested her daughter; that she jumped from the bed and turned on the light; that from that time on her husband, realizing that she knew of his abuse of her daughter, made numerous inquiries as to whether she had made a complaint to the police; and that he often made threats to kill both of them rather than face the charge which might result in confinement in the penitentiary.

The record further shows that in September 1944, after she filed a suit for divorce against her husband, he told her that he had bought a gun, and that it was ■a present for her and that if she went ahead and got the divorce, it wouldn’t do her any good. She dismissed the divorce case and returned to her husband. A short time after this occurred, they went to live on Chestnut street, where the killing took place.

Defendant claims that at one time her husband showed the gun to her, and there is also testimony in the record to the effect that her husband, who worked at the Frigidaire plant, had exhibited a gun to a fellow workman in the month of December 1944. One Effie Bramsway, who lived on Bainbridge street, and a friend of the Hickmans, testified that George Hickman had sold the gun to Mr. Hughes who lived in the same residence as the witness. There is nothing in the record to show that the defendant had any knowledge of the gun being sold.

On Tuesday night, February 20, 1945, after they had gone to bed, Hickman asked the defendant whether she had been any place that day. She told him that she had not been away. Whereupon he told her that “he had to do something and that the only thing he knew, was to kill” Yera Jean and the defendant “because he had no intention of waiting until the law got him.” Defendant testified that she told her husband he might kill her, but to leave her baby alone. To this statement he replied: “I can’t do that and you know that.” When she asked him why, he said: ‘ ‘ She knowed more about it than I did,” and that he was going to do it as he had no other choice. The next day she went to police headquarters and complained to Sergeant McElhaney about her husband’s threat to kill both her and her daughter. She inquired how long’ her husband could be restrained, if a complaint should be filed. The of fieer informed her that he conld be released on bond almost immediately. She left police headquarters without filing a complaint. On her way home, she walked down Jefferson street and passed a pawn shop. She stopped at the window and looked at the guns. She did not enter, but walked by the shop, after which she turned back and went into the pawn shop, at which time the clerk showed her a gun. She did not make the purchase at that time. <She testified as follows:

“Q. What did you do? A. I couldn’t make up my mind so I went out of the pawn shop, went up to about the corner of Fourth street and Jefferson a little ways, then I thought, I can’t go home.

“Q. What do you mean when you said ‘I couldn’t make up my mind’? A. I didn’t want to take a chance on getting away from him; I didn’t know whether to take a chance on trying to get away from him before he killed Vera Jean and I, or to go on home. I didn’t know what to do; I had no place to go and no money to go and keep my baby and I together. ’ ’

‘ ‘ Q. What did you finally decide to do ? A. I decided to go back to the pawn shop and buy the gun.

“Q. Did you return to the same-pawn shop? A. Yes, I did.

“Q. Did you buy the gun? A. Yes, I bought the gun.”

After she purchased the gun she inquired of the clerk how to operate it, and he instructed her. She then purchased a number of cartridges and left for her home. She testified that she had borrowed money from her father that day to pay the rent and for the purchase of groceries and that she used this money to pay for the gun. On the night of the killing, she had prepared a meal and had invited the McDaniels over to eat the evening meal with them, which they did. The McDaniels lived in adjoining rooms. Mrs. McDaniel testified, as did her daughter, that everything seemed to be friendly between the Hickmans on that evening. The record shows that between 9:00 and 9:30 p. m. George Hickman went to bed and a short time thereafter the defendant bathed Yera Jean and placed her in bed, after which she, the defendant, took the gun from the place'where she-had secreted it in the kitchen and loaded it; that she entered the bed room, turned out the lights, placed the gun under her pillow and went to bed. The defendant testified that as she went to bed her husband said he was going to have to do the same thing as his brother Hank did (his brother Hank shot and killed his wife and himself a short time previously), as he could not stand it any longer; and that he was going to shoot both of.them, meaning the defendant and her daughter. At this point the defendant testified as follows :

£iQ. What did he do? A. He turned over to his right side, throwed his hand up to the pillow.and I thought he was reaching for a gun. I didn’t know what he had.

££Q. What did you do? A. I pulled the gun out and shot him.”

She further testified that she then called the McDaniels who, on being aroused by the shooting, opened the door leading into the Hickman apartment. Mrs. McDaniel testified she heard Mrs. Hickman say: “I did it.” Mr. McDaniels summoned the officers, who arrived within a few minutes. Officer' Woodall testified that the defendant told him that evening that Mr. Hickman was in bed when she shot him, and that he was lying on the bed. Officer Teeter testified that when he arrived, Hickman was lying in bed on his right side, facing the wall with a bullet wound in the back of his head. He also testified that he held a conversation with the defendant that evening in the Hickman apartment. The record is as follows:

“Q. I will ask you whether or not Mrs. Hickman told you where he was when she shot him? A. She said he was lying there.

‘£ Q. Did she say anything as to where she had had the revolver? A. I asked her where she kept the gun or where she had the gun. She said under her pillow.

££Q. And did she say anything as to whether or not Mr. Hickman was awake or asleep at the time she shot him? A. I asked her about that also, and she said she thought he was sleeping.”

■ Officer Metzger, who took the photographs of the room that evening, testified that there were powder burns on the pillow near the head of George Hickman. Mrs. McDaniel and' her daughter, Doris, both testified that that evening after Mr. and Mrs. McDaniel had eaten the evening meal with the Hickmans and had retired to their own apartment, they heard no noise or commotion of any kind in the Hickman apartment and that there was no loud talking evidencing a quarrel, and the evidence convincingly proves that there was not a struggle prior to the fatal shooting. There is nothing in the record, not even in the testimony Of the defendant, that there had been any overt act on the part of her husband prior to the time she shot him, except her testimony that, as he was lying in bed, he turned over on his right side, throwing his left.hand up toward the pillow, at which time she fired the fatal shot.

Are these facts sufficient to warrant the jury in finding the defendant guilty of murder in the first degree? There are many mitigating circumstances which, no doubt, weighed heavily with the jury and resulted in a recommendation of mercy. However, these mitigating circumstances in law do not furnish a justification for the killing. This court does not believe the facts show that the defendant killed her husband in self-defense. There is ample evidence tending to prove that the dofendant purposely and with deliberation and premeditation planned to kill her husband on the day of the murder. We believe that the jury very properly found the defendant guilty of murder in the first degree.

The trial court did not commit error in overruling the defendant’s motion for a dismissal at the close of the state’s case. We find that the verdict of the jury is not against the manifest weight of the evidence and is not contrary to law.

The defendant has assigned as error the fact that the court permitted counsel for- the state to rebut the testimony of the defendant on a purely collateral matter. In her direct examination, she was questioned relative to her marriages and divorce. On cross-examination, counsel for the state questioned her relative to misstatements made to the marriage license clerk in the Probate Court of Montgomery county, Ohio, at the time she applied for a license to marry George Hickman: In the marriage license records, in answer to the question as to whether she had been married before, the record shows she answered “No.” Upon being interrogated on that point, she stated on cross-examination that she did not recall giying that answer. She also stated at the time she applied for her license that she was living on Washington street, whereas she was living on Proctor street. Upon being interrogated on, cross-examination on that point, she said she did not remember what was asked. On rebuttal, the marriage license clerk was called and permitted to testify over the objection of counsel for the defendant as to the record and the answers given by the defendant when she applied for a marriage license. Unquestionably, that was a collateral matter. In a criminal case when the witness is cross-examined on a collateral matter, the cross-examiner makes the witness his own. Smith v. State, 125 Ohio St., 137, 180 N. E., 695. See Maranda v. State, 17 Ohio App., 479, 491. The cross-examiner' is not permitted to introduce rebuttal testimony to contradict the witness on a collateral matter. Underhill’s Criminal Evidence (4 Ed.), 808, Section 401. This rule of evidence is elementary. In permitting the marriage license clerk to testify on rebuttal, the trial court, we believe, committed error. However, the reviewing court, before a reversal can be had, must find that the error was prejudicial to the cUfendant. The reviewing court is bofind to follow me provisions of Section 13449-5, General Code, which so far as it is applicable to this case, is as follows:

“No motion for a new trial shall be granted or verdict set aside, nor shall any judgment of conviction be reversed in any court * * * for the admission or rejection of any evidence offered against or for the accused unless it affirmatively appears on the record that the accused was or may have been prejudiced thereby * ® * nor for any other cause whatsoever unless it shall affirmatively appear from the record that the accused was prejudiced thereby or was prevented from having a fair trial.”

Under the provision of this section, it is mandatory that the reviewing court find from the record that the. accused was or may have been prejudiced or was prevented from having a fair trial before ordering a reversal. State v. Huffman, 131 Ohio St., 27, 1 N. E. (2d), 313; Makley v. State, 49 Ohio App., 359, 197 N. E., 339. In the latter case, the court on page 372, says:

“The provisions of this section are of such character that in order to authorize a reversal of the sentence of conviction for these claimed errors it must affirmatively appear from the record that the accused was prejudiced thereby or was prevented from having a fair trial.”

See, also, State v. Moon, 124 Ohio St., 465, 469, 179 N. E., 350; Booker v. City of Cincinnati, 22 Ohio Law Abs., 286, 1 Ohio Supp., 152; State v. Hahn, 25 Ohio Law Abs., 449, 5 Ohio Supp., 368, affirmed by tbe Court of Appeals in 59 Obio App., 178, 17 N. E: (2d), 392, and appeal dismissed by tbe Supreme Court in 133 Ohio St., 440, 14 N. E. (2d), 354; State v. Hobbs, 59 Ohio App., 274, 17 N. E. (2d), 937, affirmed by tbe Supreme Court in 134 Ohio St., 56, 15 N. E. (2d), 775.

Tbe rule wbicb controls a court in passing upon error in tbe record is best stated in McHugh v. State, 42 Obio St., 154, tbe second paragraph of tbe syllabus, wbicb is as follows:

“A judgment will not be reversed merely because tbe record shows error, to wbicb exception was taken. Tbe error, to be ground of reversal, must be prejudicial to tbe rights of tbe party complaining. And this is tbe rule in criminal as well as civil cases.”

In State v. Witsel, 144 Ohio St., 190, 58 N. E. (2d), 212, tbe syllabus is as follows:

‘‘On appeal from a judgment of conviction, where tbe defendant on trial for robbery was asked on cross-examination whether be bad committed certain similar offenses, to wbicb questions be objected but on instruction to answer did so in tbe negative, and tbe trial court later withdrew such testimony from tbe jury, it is error, under Section 13449-5, General Code, relating to reversal for improper admission of evidence, for a reviewing court stating its belief that defendant’s guilt was established beyond a reasonable doubt irrespective of such excluded evidence, to reverse tbe judgment because of misconduct of tbe prosecuting attorney in asking such questions.” (Emphasis ours.)

In tbe instant case, we believe tbe defendant’s guilt was established beyond a reasonable doubt. We are convinced tbe final result would not have been changed bad tbe error not been committed. She stated in her application for marriage license that she lived on Washington street, when, as a matter of fact, she lived on Proctor street. However, at one time she did live on Washington street. She further stated in her application for marriage license that she was not divorced when, as a matter of fact, she had been divorced. However, this court is of the opinion that the physical facts surrounding the killing, together with the conduct and statements of the defendant, are so convincing with respect to the manner in which the defendant planned and executed her purpose and that the verdict of the jury is supported by such ample proof, that the verdict would not have been different had the error not been committed.

After giving due consideration to all the evidence in this case and the error complained of, this court conscientiously feels that the misstatements made in the marriage record being of an irrelevant nature and not of an influential character, the jury was not influenced by this testimony in arriving at its verdict. Taking this view of the case, the court finds that the trial court did not commit prejudicial error by permitting the marriage license clerk to testify in rebuttal on a collateral matter.

Defendant further contends that the trial court erred in refusing counsel for the defendant the right to inspect a written statement in the possession of Officer Metzger, a witness for the state, after the witness had referred to such written statement while on the witness stand for the purpose of refreshing his memory. The record shows that while Officer Metzger was testifying and while the jury was looking at certain photographs which had been introduced into the record, he, Officer Metzger, was looking through certain typewritten statements in a folder which he had brought with him from police headquarters. In answer to a question as to whether he was referring to the statements for the purpose of refreshing his memory, his answer was in the affirmative. However, later in his testimony, he stated that he had not refreshed his memory, and that he had not made any statement to the jury from any record which he had with him on the witness stand. The court finally asked him whether he used the typewritten statements to refresh his memory, to which he answered as follows:

“There is nothing in these will answer any questions he asked. No information that will add to the answer of any of the questions.”

The court sustained the objection of counsel for the state and did not permit counsel for the defendant to examine the records. In this ruling, we do not believe that the trial court committed -prejudicial error.

The court believes that the defendant had a fair trial; that there is no prejudicial error in the record; and that the judgment of the trial court should be affirmed.

Judgment affirmed.

Hornbeok, P. J., and Miller, J., concur.


author: Skeel, P. J. Morgan, J.,

text:
    Hordin, Appellee, v. City of Cleveland et al., Appellants.
    (No. 19787
    Decided July 9, 1945.)

      Messrs. Jones, Day, Coclcley & Reavis, for appellee.

      Mr. Lee Howley, director of law, and Mr. Jos'. F. Smith, for appellant City of Cleveland.

      Mr. S. T. Gaines and Mr. L. J. Shoup, for appellant Transit Board.

      Messrs. Squire, Sanders S Dempsey, for appellants Mitchell, McCandless & Klaus.
   Skeel, P. J.

This cause comes to this court on questions of law and fact, the plaintiff claiming the right to bring this action as a taxpayer and seeking to enjoin the defendants from carrying out the provisions of certain contracts which it is claimed were entered into contrary to law.

The Cleveland Railway Company as a part of the business of providing streetcar and bus service to the citizens of Greater Cleveland contracted for the services of advertising specialists to procure advertising matter from various business concerns and to place the same in spaces provided therefor in its streetcars and busses. In 1939 The Sterns Advertising Company, with whom the Cleveland Railway Company had contracted for this service, went into bankruptcy. For the purpose of re-establishing the revenue derived from streetcar card advertising, the railway company organized a subsidiary corporation under the name of The Railway Advertising Company of Cleveland. The officers of 'the company thus formed were officials of the railway company who after considerable search employed John Mitchell (now one of the partners of Mitchell, McCandless & Klaus, defendants herein) as general manager. The railway company then entered into a contract with its subsidiary, employing its services in the conduct of its car card advertising business.

The city of Cleveland, on April 28, 1942, purchased the streetcar and bus system from the Cleveland Railway Company and ás a part of the transaction the stock of The Railway Advertising Company was assigned to the purchaser. The Railway Advertising-Company continued to handle the car card advertising business of 'the system under the same term's as it did for the Cleveland Bailway Company. The contract between the railway company and The Bail-way Advertising Company provided that it should terminate on December 31, 1943, and The Bailway Advertising Company contract with Mitchell was to run until December 31, 1942.

Shortly after the members of the new transit board (which was created by an amendment of the’city charter by a vote of the people at the November 1942 election) took office, the outstanding shares of stock, being five in number, of The Bailway Advertising Company, were transferred to them and they became the directors and officers of the company with the exception of the offices of general manager and treasurer, which offices, Mr. Mitchell continued to fill, with the approval of the new transit board.

The manner in which the transit system should thereafter handle the car card advertising business became a matter of deep concern of the transit board. It appointed one of the officials of the system to make a complete study of the problem and requested of Mr. Mitchell reports on various subjects involved in the conduct of the business.

The board finally determined to follow the procedure of the great majority of the transit systems throughout the country, that is by employing the services of an independent contractor. With this end in view the transit board invited all those in the streetcar card advertising business who wanted to, to submit proposals looking toward their employment by the transit v system. Many agencies responded to the board’s request and each was given full opportunity to present their respective proposals and to demonstrate their abilities to carry them out.-

After a very exhaustive study of the proposals and the respective abilities of those who submitted them, the board determined that the proposal of the firm of Mitchell, McCandless & Klaus would be most advantageous to the transit system.

The board, therefore, entered into a contract with Mitchell, McCandless & Klaus, employing their services to conduct the business of procuring and servicing the car card advertising business for the transit system.

The contract between the partnership and the transit board provided in part that the partnership is granted the exclusive right to solicit, procure and service advertising to be placed in all of the cars, busses and vehicles of the transit system used on its routes and such as shall thereafter be owned, controlled, operated or traversed by the transit system. The space to be used for displaying advertising is described in the contract and it is provided also that the transit system shall furnish such racks or frames as are required. The transit system agrees to use reasonable precautions to protect the advertising placed in its vehicles from damage. The partnership is made responsible for damage caused by the placing of advertisements in the cars and vehicles of the transit system and also is to be held responsible because of improper or scurrilous language in the advertising matter used, or because of infringement of copyrighted material. It is further provided that the.rights of the partnership shall be binding upon lessees, purchasers or assignees of the transit system.

In consideration of the rights granted, the partnership is to retain an amount equal to 40 per cent of the gross receipts from advertisers. The contract can be terminated before its expiration date which is May 31, 1948, at the option of the transit board, for failure of the partnership to make payments within ten days of the due date as provided by the contract; for any other default not corrected within thirty days after notice thereof; also for failure to pay to the system during any twelve-month period preceding notice, $120,000; or, because of the filing of a voluntary petition in bankruptcy or the appointment of a receiver, or the making of an assignment for the benefit of creditors of the partnership. If the partnership performs its obligations under the contract to the satisfaction of the transit board, then it is provided that it shall enjoy all the privileges and rights granted under the agreement.

The partnership agrees to give its full and complete attention and supervision to the securing of advertising business for the transit system as contemplated by the agreement and not to engage in other advertising business with others located outside a radius of 80 miles from Public Square, Cleveland, Ohio, except when acting as advertising counsel; and finally the partnership is prohibited from selling or assigning its rights under the contract without the consent of the transit board.

When the transit board determined that it was not* advisable to continue The Railway Advertising Company as the agency through which to conduct the car card advertising business of the transit system, it proceeded to effect its dissolution and acting as the directors and stockholders of such company, proceeded to dispose of its assets as provided by law. The assets consisted of property such as furniture and springs for holding car cards in place, certain accounts receivable and also unexpired contracts with advertisers. The most logical purchaser of such assets was the firm of Mitchell, McCandless & Klaus, because of the fact that they had been selected to carry on the car card advertising business. A contract was, therefore, entered into between Mitchell, McCandless & Klaus and The Railway Advertising Company by which the partnership purchased all the personal property of The Railway Advertising Company; agreed to collect the accounts receivable for the transit system; took an assignment of the contracts it had for car card advertising on the Rapid Transit Lines for which a separate consideration of $1,200 was paid and also procured an assignment of the unexpired advertising contracts for advertisements in the cars of the transit system and agreed to service them at the same rate that the partnership was to be paid under the terms of its contract with the transit board.

There are two causes of action in the plaintiff’s petition. The first cause of action seeks to enjoin the transit board and the partnership from carrying out the contract giving the partnership the exclusive right to manage the transit system’s car card advertising business and seeks a declaratory judgment against the validity of the contract, for the reason that the transit board did not advertise for bids as required by the city charter nor did it procure the consent of council by ordinance passed not as an emergency matter as required by Section 113-3 of the charter of the city of Cleveland. This last allegation was not contained in the plaintiff ’s letter served upon the, law director of the city of Cleveland requesting him to bring this action, prior to its being filed by the plaintiff as a taxpayer. ' . •

The second cause of action seeks similar relief with respect to the contract between The Railway Advertising Company and Mitchell, McCandless & Klaus, for the purchase of the assets of the advertising company then in process of dissolution, for the reason that the transit board failed to request or advertise for bids so that the property could be sold to the highest and best bidder and further because the transit board failed to procure the consent of council before disposing' of the assets as required by the city charter.

The sections of the city charter involved, read as follows:

“Section 101: There shall be in the department of finance a division of purchases and supplies. The commissioner of purchases and supplies shall make all purchases for the city in the manner provided by ordinance, and shall under such regulations as may be provided by ordinance and by direction of the board of control, sell all property, real and personal, of the city, not needed for public use or that may have become unsuitable for use or that may have been condemned as useless by the director of a department. He shall have charge of such store rooms and warehouses of the city as the council may by ordinance provide.

“Section 102: Before making any purchase or sale, the commissioner of purchases and supplies shall give opportunity for competition, under the rules and regulations as the council shall establish. Supplies required by any department may be furnished upon requisition from the stores under the control of the commissioner of purchases and supplies, and whenever so furnished shall be paid for by the department furnished therewith, by warrant made payable to the credit of the store’s account by the division of purchases and supplies. The commissioner of purchases and supplies shall not furnish any supplies to any-department unless there be to the credit of such department an available appropriation balance in excess of all unpaid obligations sufficient to pay for such supplies.”

“Section 108: All contracts involving any expenditure in excess of five hundred dollars ($500) shall first be authorized and directed by ordinance of council. When as authorized and directed, the director of the department involved shall make a written contract with the lowest responsible bidder, after advertisement once a week for two consecutive weeks in the City Record. There shall be no splitting of orders to void the effect of this section, and any contract made contrary to or in evasion of the foregoing provisions of this section, shall be illegal and void.

“Section 109: All- contracts, agreements or other obligations entered into and all ordinances passed, resolutions and orders adopted, contrary to the provisions of the preceding sections, shall be void, and no person whatever shall have any claim or demand against the city thereunder, nor shall the council, or any officer of the city, waive or qualify the limits fixed by any ordinance, resolution or order, as provided in Section 106, or fasten upon the city any liability whatever, in excess of such limits, or release or relieve any party from an exact compliance with his contract under such ordinance, resolution or order.”

“Section 113-3: * * * Subject to the general provisions of this charter, except as modified with reference to the board and the specific provisions in this and the next succeeding sections limiting such power, the board shall have 'full and complete supervision, management and control of the transit system, both within and without the city limits, including the operation, maintenance and construction of the system, a determination of routes, types of rolling stock and equipment, time schedules and stops, the operation of cars, busses and other equipment and the fixing of the salary or compensation of its employees. The board shall have no power or right to acquire by purchase, lease or otherwise, any transportation system, or any part thereof, without the consent of council, by ordinance passed not as an emergency measure, nor shall the board have the right or authority to dispose of any of the property or capital assets of the transit system without similar consent of council. The board shall take no action concerning any permit, franchise, extension or renewal thereof, or other right to operate the transit system, within the territorial limits of any other municipality or governmental subdivision, unless such right to operate has been first accepted by ordinance of council. No new capital expenditure shall be made except with the approval of council. * * *

Section 113-4: Notwithstanding the provisions of Section 108, and as an exception thereto, the board shall authorize all contracts involving an expenditure for the transit system in excess of five hundred dollars ($500) and no contract involving such an expenditure in excess of ten thousand dollars ($10,000) shall be made unless first authorized by ordinance of council. All contracts in behalf of the board shall be made by the chairman after competitive bidding with the lowest responsible bidder, and all contracts in excess of five hundred dollars ($500) shall first be advertised once a week for two consecutive weeks in the-City Record; provided, however, that in case of emergency which could not reasonably have been foreseen, when delay would result in great public inconveniences or irreparably endanger the property or operations under contol of the board, purchases involving an expenditure not exceeding ten thousand ($10,000) dollars may when authorized by the board, be made by the chairman without such advertising but competitive bidding shall be requested by posting or otherwise. Notwithstanding the provisions of Section 101 of the charter, as an exception thereto, purchases for the board shall be under the control of the board; provided, however, that the facilities of the division of purchases and supplies shall be available to the board when requested by the board.”

The public agency which is here under consideration is one that is not supported by tax funds. The transit board does not in the performance of its duties, exercise duties involving a governmental function; its activities in managing the publicly owned transit system are proprietary in character. The Cleveland city charter as amended to provide for the operation of the transit system through the transit board intended to vest such board with full power to manage the business of the system, limiting its authority only in the following respects:

First, the acquiring of any other transportation system or part thereof, by purchase, lease or otherwise, or “the disposal of any of the systems, property or capital assets, can be accomplished only after' consent of the city council by ordinance passed not as an emergency measure”; second, expenditures of money in excess :of $10,000 can be made only when authorized by ordinance of the city council; and third, by requiring that contracts for or on behalf of the board shall be made by the chairman, after competitive bidding, with the lowest responsible bidder and all contracts in excess of $500 shall be advertised once a week for two consecutive weeks in the City Record except in cases of certain emergencies.

The contract between the transit board and the partnership of Mitchell, McCandless & Klaus does not come within any of these restrictions. It was a contract whereby the board engaged the services of the partnership as car card advertising specialists. It is difficult to understand what good would have been accomplished by competitive bidding. On what basis is the board to determine who is the lowest responsible bidder when the employment of the services of an advertising specialist and not the purchase of property or the acquiring of a property right (as the term is used in the charter) was the subject under consideration? The courts have held without exception that charter provisions and ordinances requiring competitive bidding as a basis for entering into contractual relations with a governmental body are not intended to apply to contracts for personal services.

In 3 McQuillin on Municipal Corporations (2 Ed.), 1182, Section 1292, the rule is stated as follows:

“Provisions as to competitive bidding have been held not to apply to contracts for personal services depending upon the peculiar skill or ability of the individual, such as the services of a court stenographer, an attorney at law, a superintendent or architect * * And generally the requirement does not apply to the employment of a professional man, in which-case the authorities have a discretion as to his qualifications.”

This question was passed upon by this court in the case of City of Cleveland v. Lausche, Mayor, 71 Ohio App., 273, 49 N. E. (2d), 207, where Section 108 of the charter was being considered with reference to a contract between the city and the Museum of Natural History whereby the city employed the services of the museum to operate Brookside Zoo. The court said:

‘ ‘ This provision does not apply to legislation providing for the employment of the kind of services herein being considered which in a very real sense are professional in character. The council, therefore, both under the constitution and laws of the state and the provisions of the city charter, had the power to authorize the contract entered into between the city and the museum. ’ ’

In the case of State, ex rel. Doria, v. Ferguson, Aud., 145 Ohio St., 12, 60 N. E. (2d), 476, there was presented to the Supreme'Court the question whether a-contract with an attorney, at law to prepare for the highway department abstracts of-title of parcels of land required for highway purposes, could be entered into between the defendant, and the state without first having submitted the proposal to employ such a person to competitive bidding as required by Section 1206, General Code, which provides in part that before the Director of Highways can enter into a contract in furtherance of a state highway improvement he must advertise for bids in a newspaper of general circulation for two consecutive weeks and then award the contract to the lowest competent and responsible bidder. The divisional engineer in employing the services of the relator did not ask for bids by the method required in Section 1206, General Code, and, therefore, the Auditor of State refused to pay the warrant for his services in the sum of $5,780. The Supreme Court said, on page 17 of the opinion:

“While it is quite true that public contracts may not ordinarily be entered into without advertisement and competitive bidding, a well recognized exception exists where the contract is for personal services of a specialized nature requiring the exercise of peculiar skill and aptitude. 43 American Jurisprudence, 770, Section 28, 142 A. L. R., annotation, 542. This exception has been recognized and applied in Ohio. Cudell v. City of Cleveland, 16 C. C. (N. S.), 374, 31 C. D., 548, affirmed without opinion, 74 Ohio St., 476, 78 N. E., 1123; 33 Ohio Jurisprudence, 638, Section 14. Compare State, ex rel Baen, v. Yeatman, Aud., 22 Ohio St., 546.”

“The services relator was engaged to supply fall within the noted exception. * # * ”

That the contract here under consideration was one for the personal services of the partnership as car card advertising specialists, cannot be seriously questioned. In the case of Eastern Advertising Co. v. McGaw, 89 Md., 72, 42 A., 923 (Court of Appeals of Maryland 1899), the Eastern Advertising Company entered into a contract with McGaw whereby the advertising company was to carry McGaw’s advertisement in 250 street cars in Baltimore for 12 months at $150 per month. It was provided by the contract that the cards were to be at the approval of the advertising company and if said company were to “cease to have the right to maintain the advertisement * * * this contract shall terminate.” McG-aw & Company some time after the contract had been in full force and effect, received notice that the Eastern Company had sold all of its street car advertising interests in the Baltimore district to the Southern Street Railway Advertising Company and advising the advertiser that payments for advertising after September 1, 1897, should be made to the Southern Street Railway Advertising Company. McGaw refused to pay the new company for the first month’s service and thus action was brought. Among other defenses the defendant claimed:

“That the contract sued on is personal to the parties thereto, the delectus personae element forming an ingredient of it, and as the defendants did not assent to its sale or transfer, a recovery cannot be had upon it for the use of one who was not a party to it.”

The court in sustaining that defense said, on page 88 of the opinion:

“It is perfectly obvious that skill and judgment as well as taste were required by the contract to be exercised by the Eastern Company both in the designing of the cards and in selecting the type in which they were to be printed, and in the arrangement of the cards in the cars. Its approval of the style and contents of the cards was necessary before any card could be placed in the cars. The contract was one where the delectus personae was most material. It made no' provision for an assignment; and a transfer of it for performance by another was clearly not contemplated by either of the parties to it.”

In the case of Smith v. Zuckman, 203 Minn., 535, 282 N. W., 269 (Supreme Court of Minnesota 1938), the plaintiff’s intestate had entered into a contract to use his best efforts to solicit contracts for advertising to be shown on tbe screen in defendant’s moving picture theater. He bad been granted tbe exclusive right to solicit advertising contracts for that purpose. After decedent’s death tbe defendant contracted with another for- tbe service and refused to further perform under tbe terms of tbe contract with tbe decedent and tbe action was brought by bis administrator for damages and injunctive relief. To tbe petition setting forth tbe facts a demurrer was filed and sustained by tbe trial court. Tbe Supreme Court of Minnesota in affirming tbe order of tbe trial court, said:

“When rights arising out of contract are coupled with obligations to be performed by tbe contractor and-involve such a relationship of personal confidence that it must have been intended that tbe rights should be exercised and tbe oblig'ations performed by him alone, tbe contract, including both bis rights and bis obligations, cannot be assigned without tbe consent of tbe other party to tbe original contract.” See, also, Fuller & Smith v. Routzahn, 23 F. (2d), 959.

In tbe case of Ward v. American Health Food Co., 119 Wis., 12, 96 N. W., 388, tbe rule is stated in tbe first paragraph of tbe syllabus, as follows:

' “Plaintiffs contracted to insert defendant’s advertising cards in a certain number of cars on certain street railways ‘for tbe term of 12 months from July 10, ' 1900.’ Defendant was to pay therefor $470 per month —‘the rent each month to be paid in advance;’ and tbe contract provided that ‘nonuse of space from advertiser’s act or omission is advertiser’s loss.’ The cards were to be subject to the approval of plaintiffs and of tbe railway companies.' Prior to July 10, 1900, plaintiffs procured tbe insertion of tbe cards as agreed, but it appears that no particular space in particular cars was secured by them for tbe term of tbe contract. On September 27, 1900, defendant directed plaintiffs' to remove the cards from all cars but plaintiffs refused, and continued the insertion of the cards up to July 10,1901. Held, that the contract was not in the nature of a lease or subletting of certain spaces in the cars, but rather in the nature of a contract for personal services. It was therefore not fully executed on July 10, 1900, when plaintiffs had procured the insertion of the cards, but was still executory at the time when defendant directed the removal.”

See, also, Neely, Admx., v. Havana Elec. Ry. Co., 136 Me., 352, 10 A. (2d), 358 (Supreme Judicial Court of Maine 1940).

The case that is relied upon by plaintiff is Barron G. Collier, Inc., v. Paddock, 37 Ariz., 194, 291 P., 1000 (Supreme Court of Arizona 1930). In that case the principal question presented was one of estoppel. The plaintiff had a contract with the Phoenix Railway-Company-of Arizona whereby it bought the right to the advertising space in its streetcars for ten years at a stated price per year. Thereafter the city acquired the streetcar system and for about four years thereafter plaintiff continued to use the advertising space and the city accepted the payments as they came due. Before the expiration of the ten-year period, the city determined “to call for bids and enter into a contract as of July 1, 1929, for the privileges theretofore enjoyed by plaintiff” with the lowest and best bidder as required by Section 12, Chapter 4 of the city charter, which in part provides that “actions providing for * * * sale or lease of public property * # * shall be taken by ordinance * *

The plaintiff’s complaint seeking a restraining order against the city was demurred to by the defendant. The trial court sustained the demurrer and the judgment was affirmed by the Supreme Court of Arizona on the ground that the contract was for a property right and that the only way the city could be bound in tbe disposal of a property right was by ordinance.

The question as to whether the contract was for the personal services of Barron G. Collier, Inc., seems not to have been suggested and, therefore, the court did not pass upon that point and the case cannot, therefore, be urged as in point on the question before us.

The right to have an advertisement displayed in the streetcars and busses of the Cleveland transit system is indeed a property right but the transit system did not dispose of such right to the partnership by the contract now under consideration. What the partnership received by the terms of the contract was the exclusive right to solicit advertising to be displayed in the transit system’s vehicles and the obligation of servicing such contracts as were made with the advertisers. The partnership was made responsible for the character of the displays put in the vehicles. Under those circumstances the partnership could not have assigned its rights under the contract or made such assignment binding either on the advertisers or on the transit system. The contract in every detail provided for the performance of personal services and, therefore, did not involve such a property right as was intended by Section 113-3 of the city charter, to require that it be authorized by ordinance or require that the transit system should advertise for bids and then let the contract to the lowest (or highest) responsible bidder.

We come now to the question whether the sale of the assets of The Railway Advertising Company of Cleveland to the partnership as a part of the process of its (The Railway Advertising Company’s) dissolution as provided by statute, was a disposal of property in the possession of the transit system, such as would require authorization by ordinance of the city council; and. also require that the proposed sale be advertised in the City Record and the sale thereafter consummated with the highest responsible bidder as required by Sections 113-3 and 113-4 of the charter of the city of Cleveland.

The purchase of all the assets of The Cleveland Railway Company, which included all of the issued and outstanding stock of The Railway Advertising Company of Cleveland, did not work a dissolution of such company. It, therefore, continued to be the owner of its assets until sold as provided by law under Sections 8623-82 to 8623-84, inclusive, General Code. Section 8623-82, General Code, provides in part:

“The directors named in such certificate [dissolution certificate provided for in Section 8623-80] * * * shall act as a board in accordance with the regulations and by-laws of the corporation until the corporation is completely wound up and they shall proceed as speedily as may be practicable to a complete winding up of the corporation and, to the extent necessary or expedient to that end, shall exercise all of the powers of such dissolved corporation, and, without prejudice to the generality of such authority, may * * * sell its assets at public or private sale, make conveyance in the corporate name * * * settle or compromise claims in favor of or against the corporation * * * and do and perform all acts necessary or expedient to the winding up of the corporation * #

In the best interests of the carrying out of the duties imposed by law upon the directors of the corporation there was no reason why they should have transferred these assets to the transit system after they had determined to deal with an independent contractor in carrying on the car card advertising part of the transit system’s business. The most logical purchaser of such assets would be the new advertising agent employed by the transit system.

In making such sale as was done in this case, the transit board was acting as tbe directors of Tbe Railway Advertising Company and not as members of tbe transit board. No claim of fraud or collusion in tbe use of tbe subsidiary corporation being claimed or proved, it maintained its legal entity until dissolved as provided by law.

In the case of North v. Higbee Co., 131 Obio St., 507, 3 N. E. (2d), 391, tbe Supreme Court said:

“Tbe separate corporate entities of a parent and subsidiary corporation will not be disregarded and tbe parent corporation will not be beld liable for tbe acts and obligations of its subsidiary corporation, notwithstanding tbe facts tbat tbe latter was controlled by tbe parent through its stock ownership, and tbat the officers and directors of • tbe parent corporation were likewise officers and' directors of tbe subsidiary, in tbe absence of proof tbat tbe subsidiary was formed for tbe purpose of perpetrating a fraud and tbat domination by tbe parent corporation over its subsidiary was exercised in such manner as to defraud complainant. ’ ’

Tbe fact that the purchaser of the stock of the company was a municipal corporation does not change tbe rule. Commonwealth v. Monongahela Bridge Co., 216 Pa., 108, 64 A., 909, 8 Ann. Cas., 1073.

We conclude, therefore, tbat tbe sale of tbe assets of Tbe Railway Advertising Company by tbe directors as a part of the dissolution of tbe corporation, under tbe provisions of Sections 8623-82 to 8623-84, inclusive, General Code, in no way involved Sections 113-3 and 113-4 of tbe Cleveland city charter and did not require either tbe consent of council or tbe necessity of advertising tbe proposed sale in tbe City Record for two consecutive weeks and then consummating tbe sale to the highest responsible bidder. We bold tbat tbe sale as conducted was in all respects in accordance with the statutory requirements of the state of Ohio.

Decree for appellants.

Lieghley, J., concurs.

Morgan, J.,

concurs in the decree for appellants on the first cause of action but dissents from the similar decree on the second cause of action for the reason that property and assets of The Railway Advertising-Company were property and assets of the “transit system” within the meaning of Section 113-3 of the city charter and, therefore, could not be disposed of without the consent of the city council.