author: Hornbeck, J.

text:
    Cramer, Appellant, v. Price, Appellee.
    (No. 4160
    Decided November 12, 1948.)

      Mr. O. C. Ingalls, Mr. Gene A. Jones and Mr. Stanton G. Darling, for appellant.

      Mr. James F. Henderson, for appellee.
   Hornbeck, J.

This appeal is on questions of law from a judgment dismissing plaintiff’s amended petition after the sustaining of a demurrer thereto.

The amended petition asserts that defendant examined plaintiff’s wife, advised and performed a surgical operation upon her and without the knowledge and consent of the plaintiff or his wife, did negligently, carelessly and maliciously and in violation of his duties as a surgeon as a part of such operation, cause the vaginal opening in the body of his wife to be partially closed; and that by reason of such negligent acts plaintiff has suffered damages in medical expenses, for money expended for domestic services- and for the loss of consortium of the wife and for punitive damages. Defendant demurred to the amended petition for the reason that it was not brought within the time limited for the commencement of such actions. Two common pleas judges who passed upon the amended petition and upon the original petition,, in which were substantially the same averments, sustained the demurrer, holding that the action was for malpractice and that the limitation provided in Section 11225, General Code, controlled. That section provides:

“An action for * * * malpractice * * * shall be brought within one year after the cause thereof accrued, * *

There is no dispute as to the time when the cause of action accrued and that more than one year elapsed thereafter before it was instituted.

Plaintiff assigns as error that the court improperly applied Section 11225, General Code, to the amended' petition and that it should be controlled by Section 11224, General Code, and paragraph 4 thereof. That section provides:

“An action for either of the following causes, shall be brought within four years after the cause thereof accrued: * * * (4) For an injury to the rights of the plaintiff not arising on contract nor hereinafter .enumerated * *

Plaintiff insists that his action is for damages for loss of his wife’s consortium and that an action for malpractice could not be properly instituted by him because his injuries were consequential only and his wife’s were direct. Plaintiff cites Kraut v. Cleveland Ry. Co., 132 Ohio St., 125, 5 N. E. (2d), 324, 108 A. L. R., 521. That case held that an action of the husband for damages for loss of services and medical expenses incurred as a result of personal injuries sustained by his wife was not an action for “bodily injury” within the meaning of Section 11224-1, General Code, prescribing a two-year limitation, but came under paragraph 4 of Section 11224, General Code, providing for a four-year limitation. Judge Williams, writing the opinion, said that the husband suffered no injury of any kind, and that the bodily injury contemplated in the statute is that sustained to the person of the plaintiff who -brings the action. To like effect is Cincinnati St. Ry. Co. v. Whitehead, 39 Ohio App., 51, 176 N. E., 583, and 21 Ohio Jurisprudence, 556, Section 268.

But here, although the wife had a cause of action for malpractice which is defined as negligent or unlawful wilful acts committed by a physician in treating his patient, by which such person suffers death or injury (Shuman v. Drayton, 14 C. C., 328, 329, 330, 8 C. D., 12), the husband also could recover his damages, loss of services, etc., in the same type of action. Shaweker v. Spinell, 125 Ohio St., 423, 181 N. E., 896.

The language of paragraph 4 in Section 11224, General Code, is significant, “for an injury * * * not arising on contract nor hereinafter enumerated.” There is no uniformity outside Ohio to the effect that the action of malpractice may not arise on contract. Annotation to Braun v. Riel (Mo.), 40 S. W. (2d), 621, in 80 A. L. R., 880. Generally, and particularly in Ohio, malpractice is a tort. The action of the plaintiff here does not arise on the contract but for a breach thereof constituting a tort. In Bowers v. Santee, 99 Ohio St., 361, 124 N. E., 238, the second paragraph of the syllabus recognizes that malpractice is an action for a breach of contract; and in Gillette v. Tucker, 67 Ohio St., 106, 126, 65 N. E., 865, 93 Am. St. Rep., 639, Judge Price said that malpractice was not an action on the contract and, therefore, the six-year statute of limitations did not apply but that “it was an action to recover for breach of contract, for negligence in performance of the contract, or a breach of the terms of the contract which the law implies.” Judge Day, in Shuman v. Drayton, supra, said, at page 331, that malpractice was an action “which does not arise on contract.”

Section 11225, Genera] Code, succeeding Section 11224, General Code, and expressly enumerating and defining the limitation which shall control an action for malpractice, causes the case here to be controlled by Section 11225, General Code. Clearly, then, the averments of the amended petition do not bring the cause of action stated within the four-year limitation of Section 11224, General Code.

All the malpractice cases which we have cited recognize that such acts are controlled by the one-year statute of limitations.

We are, therefore, pf opinion that the action is barred by the express language of Section 11225, Genera] Code, and may not be controlled by paragraph 4 of Section 11224, General Code. The demurrer was properly sustained.

The judgment will be affirmed.

Judgment affirmed.

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


source: Caselaw Access Project

author: By the Court.

license: Public Domain

text:
    Enslein, Appellant, v. Enslein et al., Appellees.
    (No. 6968
    Decided July 6, 1948.)

      Mr. Charles J. Armstrong and Mr. George J. Wellerr for appellant.

      Messrs. Kane, Kennedy, Brant é Morris, for appellees.
   By the Court.

This case is presented upon appeal on questions of law and fact from a decree of the Common Pleas Court of Hamilton county.

In the petition it is stated:

“Now comes the plaintiff and for his cause of action says that during the first four months of the year 1941, the relationship between he and the defendants was one of tranquility, peace and quiet and one of the loving relationship of father, son and daughter-in-law; that at said time the plaintiff was the owner in fee simple of the following described real estate, to wit:”

Then follows a description of the real estate.

It is alleged further:

“The plaintiff further avers and says that the fair and reasonable value of said real estate, at the time aforementioned, was the sum of thirty thousand ($30,000) dollars.

“The plaintiff at that time contemplating the possibility of death and holding a deep affection for his son and daughter-in-law informed them that he was about to execute a will making certain devises to these defendants including a substantial interest in the above described real estate;

“That the defendants did at that time by reason of their close contact and confidential relationship with this plaintiff, prey upon his affections and the love that he held for them and did entice, inveigle and persuade him and thereby did unduly influence him to make a deed in fee simple to them of the aforementioned real estate, instead of making a will, and at that time promised and contracted with this plaintiff to give him the peaceable and quiet enjoyment of that property for the remainder of his life * * *.”

It is alleged the deed contained a reservation of a life estate which constituted a part of the obligation assumed by defendants. Such reservation of such life estate is in the following terms:

“The grantor hereby expressly reserves unto himself an estate for and during the term of his natural life in and to the use and occupancy of said above described real estate and in and to all of the rents, issues and profits arising therefrom.”

It is alleged further that the defendants orally agreed to pay all existing obligations and outstanding debts of plaintiff, to feed and clothe the plaintiff, and care for him during his life, to give him all rents and profits of the property, to keep all buildings in repair, and to manage the property to the best interests of plaintiff.

It is alleged further:

“The plaintiff further says that immediately after the conveyance of said property on the 28th day of April, 1941, the defendants sought permission to continue to live with this plaintiff they having resided with this plaintiff on these premises for approximately one year prior to the conveyance of the property to these defendants. The defendants at that time represented to the plaintiff that by continuing to live with him they could better perform and carry out their •obligations to this plaintiff, and the plaintiff relying upon their promises and representations did agree to permit the defendants to remain on the premises so the defendants further promised and renewed their promises that this plaintiff was to receive all the rents, issues and profits of all kinds and of all natures •whatsoever that might be derived from the said real •estate and that the defendants did further agree to protect the interests of this plaintiff and to perform all acts with respect to this property which would inure to the benefit of this plaintiff and by reason thereof, the plaintiff permitted the defendants to occupy the home and the aforedesc.ribed premises with 'him. ’ ’

It is alleged also that after execution and delivery ■of the deed the defendants failed to carry out their agreement and the particulars of such failure are set ■out in detail. It is alleged that the defendants abused, ■insulted, and assaulted plaintiff in his own home.

It is stated further:

“The plaintiff further avers that the conduct of the •defendants has been such that the plaintiff has good reason to believe and does believe at this writing that •the intent and purpose of the defendants was at the ‘time of the conveyance not to fulfill the terms of their •agreement but that the words of the agreement were spoken solely as inducements to' prevail upon this plaintiff to make the above described transfer in or■der that these defendants could acquire the fee to the above described real estate and hold the same to the ■disadvantage, injury and suffering of this plaintiff;

“That the defendants have at no time since truly, ■‘■honestly and sincerely performed the agreements as set forth and that they wholly failed to carry out the-terms of the agreement and the plaintiff says that by-reason of their conduct, they have nullified and invalidated the contract and the conveyance as of April 28,. 1941, and that said conveyance should be rescinded and cancelled of record and be held for naught and that the fee in the above described real estate should-be restored to this plaintiff and that he be restored to all things lost by reason thereof.”

For a second cause of action the plaintiff states that the defendants are indebted to plaintiff for the rent of such premises from May 1, 1941.

The prayer of the petition is for cancellation of the-deed, eviction of the defendants and for a money judgment of $5,625.

In the answer of defendants it is admitted that in the first four months of the year 1941 the relationship-of defendants and plaintiff was pleasant, that the plaintiff was the owner in fee simple of the real estate-described in the petition, that the plaintiff conveyed the property to defendants reserving a life estate in-plaintiff. Otherwise, the answer is a general denial.

The petition states a cause of action calling for the-exercise of chancery jurisdiction.

The evidence (consisting of a transcript of the evidence introduced in the Common Pleas Court with-exhibits) has been carefully examined.

There is a marked variance in the proof and the allegations of the petition, and it is somewhat difficult to determine clearly what was the agreement of the-parties.

It does, however, appear that the wife of the plaintiff having died, he suggested to his -son and daughter-in-law that they come and live with plaintiff and make-a home for him. It also clearly appears not only from-the statements of the parties, but from their actionsithat the defendants were to pay certain obligations which plaintiff owed to keep the farm and buildings in good condition and that they were to be charged no -rent. Now this agreement was made before the deed ■was made by plaintiff to defendants. It seems also -clear that the making and execution of the deed was not made a consideration in the original agreement. The deed was dated April 28, 1941, and recorded on May 8, 1941. The defendants came to live with plaintiff more than a year before the execution and delivery of the deed. ' The plaintiff states the defendants repeatedly requested him to make a deed after they came to live with him. The defendants state they 'knew nothing about a deed until delivery was made. !In any event, it must be concluded that the execution •and delivery of the deed were not a compliance with any previous obligation assumed by plaintiff, and the •deed was an executed gift.

It is also clear from the evidence that the life of •plaintiff in his horde, after the delivery of the deed, ■was anything but pleasant and that he felt it necessary to go elsewhere for his meals.

In the testimony of one Eugene Lampreeht appears "the following:

“Q. I will ask you to state whether or not in your presence Arthur and Bertha Enslein had ever had a ►discussion with Max Enslein concerning their personal affairs? A. I don’t know — what do you mean by personal affairs?

“Q. Did they discuss their relations with respect to this property,, that is, did they discuss the ownership ♦of the property? A. They got the deed. Well, what is there more about it? They owned it.

“Q. Bertha and Arthur Enslein acted as though They owned the property, is that right? A. I think “they should.

“Q. Did they act as though they were the owners-of the property, in your opinion? [Counsel for defendants objected, and the objection was sustained.]

“Q. Do you know that there has been dissension between — and arguments and friction between Mr-Max Enslein and his son and daughter-in-law in the-use of the property? A. Yes.

“Q. Plow long has that been going on to your knowledge? A. Well, a year and a half, something like-that. ’ ’

It appears that the defendants considered that the-plaintiff merely had a right to a room to sleep in and to his meals.

The plaintiff testifies that the wife of his son abused’ him, slapped his face, called him vile names, and told, him if he did not like the way he was treated to get out.

The plaintiff was over 70 years of age when he executed the deed. He is now over 77. The evidence in-the opinion of this court justifies the conclusion that the defendants failed to carry out' their agreement to-furnish a satisfactory home for the plaintiff, and to-properly care for his reasonable needs, in consideration of their occupancy of his home and the premises-described in the petition, rent free to them.

However, the execution and delivery of the deed being a gratuity and an executed gift can not be now set-aside. The plaintiff reserved in the deed a life estate-with the right to all the rents and profits. The evidence is not clear whether he has received these.

The defendants were notified by the plaintiff,, through his counsel, to vacate the premises on September 16, 1946, and failed to so comply with such; notice. By accepting the deed containing the reservation of a life estate the defendants, regardless of any previous understanding, remained in the premises at the will of the plaintiff, who is entitled to a reasonable rental from the defendants after that date.

It appears that the defendants have paid off certain obligations of plaintiff and made certain repairs and improvements. So far as these increased the value of their interest in the premises after the expectation of the life estate they are entitled to no credit against the plaintiff. A part of the original agreement was that such debts were to be paid in exchange for •occupancy of the premises by defendants, rent free. Whether the original understanding was that the defendants should come into the home of plaintiff, or he was to have a place in their home, there can be no question that the defendants from the beginning considered the plaintiff merely as a guest in their home and took full possession of the entire premises, with the exception of a bedroom assigned to the plaintiff. •Such being the case, it will be presumed that up to the time the defendants received a notice of eviction, any claim for services or payment of personal obligations •of the plaintiff will be set off by the- plaintiff’s claim for rental up to the time notice of eviction was served upon them. The defendants being trespassers after that date have no claim of any kind against plaintiff and he is entitled to a reasonable rental from the date •of notice of eviction until the defendants vacate the premises.

A decree may be presented ordering the defendants to vacate the premises described in the petition not later than 30 days after the date such decree is filed with the clerk for journalization. If counsel cannot agree upon a reasonable rental value of such premises from the date of the notice of eviction, such question may be reserved for further consideration by this ■court. When agreed upon or fixed, the entire sum due for rent will be ordered made a lien upon the interest", of the defendants in the premises.

The evidence being somewhat in conflict as to certain chattels, some of which it is claimed the plaintiff gave the defendants, if counsel cannot agree upon the-proper disposition of such chattels, this question may also be reserved for further hearing.

The defendants will pay all costs.

Decree accordingly.

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


text:
    Mocilnikar, d. b. a. Bishop Mills Tavern, Appellant, v. Board of Liquor Control et al., Appellees.
    (No. 4072
    Decided September 21, 1948.)

      Messrs. Hamilton & Kramer and Mr. Victor M\. Lo'dia, for appellant.

      Mr. Hugh 8. Jenkins, attorney' general, and Mr.. Charles 0. Schnur, for appellees.
   By the Court.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Franklin county, which in part affirmed the order of the Board of Liquor Control of the state of Ohio, in which it revoked a D-5 night club permit issued to the ■appellant.

The Board of Liquor Control found that the appellant was not the owner of a night club; that the appellant made false material statements in the application; •and that the permit was obtained by fraud and collusion. The Common Pleas Court found that appellant was not “the owner and operator of a night club” as required by law, and that the appellant made false material statements in her application. The court did not find the charge of fraud and collusion supported by the evidence.

• The record in this case shows that the appellant •operated a night club under a D-5 permit from November, 1939, to November, 1942. In November, 1942, the appellant ceased the operation because of the war ■and gas rationing. In March, 1944, again in April, 1944, and again in December, 1944, the appellant applied for the D-5 permit. These applications were, rejected because of Regulation No. 63 which, according to the record, was a freeze order limiting the number ■of permits issued in the state of Ohio, and its several political subdivisions. On May 28, 1946, appellant filed another application which was approved on January 8, 1947. The permit issued thereunder is the one that was revoked and is involved in this controversy. The record clearly shows that during the period from November 1942, until March 1947, the appellant’s place of business was not open. Section 6064-15, General Code, defines a D-5 permit as follows:

“Permit D-5: A permit to the owner or operator ■of a night club to sell beer and any intoxicating liquor, ■at retail, only by the individual drink in glass and from the container, for consumption on the premises where sold, only at tables where meals are served.”

A ‘ ‘ night club ’ ’ is defined in Section 6064-1, General: Code, as follows:

“ ‘Night club’ means a place regularly and habitually operated for profit after the hour of midnight,, where food is served for consumption on the premises- and one or more forms of amusement are provided or-permitted for a consideration which may be in the-form of a cover charge, or may be included in the-price of the food and beverages, or both, purchased' by the patrons thereof.”

In considering the provisions of the two sections of" the statute quoted above, we are of the opinion that it is the intent and purpose of the law that a night club-be regularly and habitually in operation at the time a D-5 permit is applied for and issued. The record shows that the appellant was neither the owner nor the operator of a night club, either when the application was made or when the license was issued. We-conclude that the order of the board and the judgment of the Common Pleas Court are supported by the law and the undisputed evidence in finding that the appellant “was not the owner and operator of a-night club as required by law.”

The record further shows that the appellant made-“false materia] statements in her application” relative to her ownership and operation of a night club at the time the application was made.

We do not find the charge of fraud and collusion-supported by the evidence.

The judgment of the Common Pleas Court is hereby-affirmed.

Judgment affirmed.

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


author: Miller, J.

text:
    In re Adoption of Gates.
    (No. 142
    Decided November 4, 1948.)

      Messrs. Cummins $ Boiler, for appellees.

      Mr. James C. Blair and Mr. Howard Everett, for appellant.
   Miller, J.

This is an appeal on questions of law from a judgment of the Probate Court of Shelby county. The action was one for the adoption of Janice Marie (Parr) Gates, a child born in July, 1945. The natural parents have not consented to the adoption and are objecting to the same. The petition for adoption, in attempting to comply with the requirements of paragraph (2) (d) of Section 10512-14, General Code, contained the following allegation:

“Petitioners further represent to the court that the parents of Janice Marie Gates have not provided a proper home, proper care, proper food, proper clothing for said child or the funds with which the same could be obtained since the child was placed in their home on the 20th day of July, 1945, a period of more than two years immediately preceding the filing of this petition and that said child has been in their continuous custody since such time.”

The court, after .hearing the evidence, found that tlie facts stated in the petition were true. The only-finding in the judgment entry regarding the neglect of the parents is the following:

“The court further, from the evidence, finds that Emerson L. Gates and Annabelle I. Gates, now Van Horn, the parents of the child sought to be adopted herein, have not provided a proper home, proper care, proper food nor proper clothing for said child, nor the funds with which the same could be obtained, for a period of more than (2) two years immediately preceding the filing of the petition herein. ’ ’

It will be noted that the word “wilfully” as used in the statute is used in neither the petition nor the entry of judgment. The appellant (who is the mother of the child), therefore, urges that there was no finding that the neglect of the parents was “wilful”; that the judgment is contrary to law; and that the motion to dismiss the petition should have been sustained. We think this assignment of error is well taken. The word “wilfully” as used in the statute has a definite meaning which requires that the néglect of the parents be intentional. Without the word being used the neglect of duty could be caused by carelessness and neglect and, therefore, be unintentional. With the word being used the degree of the neglect of duty is much higher than that when it is eliminated. *

A similar question was decided in the case of In re Goodfleisch, 73 Ohio App., 17, 53 N. E. (2d), 913. In that case the petition alleged that “the mother of ■said child * * * has not supported said child for two ■consecutive years.” . The requirements of the statute .at that time were that the adoption may be made upon •the consent of one of the parents, “when it shall appear * * * that the other parent has failed or refused to support the child for two consecutive years. ’ ’

The court said:

“The petition, in. stating that the mother ‘has not supported said child, ’ does not allege the statutory requirement that she ‘has failed or refused to support the child,’ * * *.”

Since the decision in the Goodfleisch case the statute has been amended and the requirement has been increased by the addition of the word “wilfully.” We, therefore, hold that the petition fails to state a good cause of action and the motion to dismiss should have been sustained.

We need not consider the assignment of error that the judgment is against the manifest weight of the evidence, as the finding of the court was insufficient to meet the requirements of the statute. The parents having denied their consent to the adoption, the decree is unlawful.

We find no other error in the record prejudicial to the rights of the appellant. The petition is ordered dismissed and the cause is ordered certified to the Juvenile Court as provided by Section 10512-21, General Code, for appropriate action and disposition by such court.

Judgment accordingly.

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


text:
    Felder, Appellee, v. Pugh, Appellant.

      (No. 4127
    Decided September 17, 1948.)

      Mr. Benjamin F. Levinson, for appellee.

      Mr. Russ Bothwell, for appellant.
   By the Court.

This is an action for damages resulting from a collision between two automobiles at a right-angle street intersection. A jury trial was had which resulted in a verdict for the plaintiff, appellee herein.

The record discloses that an answer and cross-petition was filed. A motion was then filed by the plaintiff to strike the cross-petition from the files for the reason that “it is a sham pleading and serves no purpose other than attempting to prejudice plaintiff’s cause of action for the reason that any claim that the defendant may or might have had against the plaintiff has been fully satisfied and paid for.” In support of that motion the plaintiff offered the deposition of the defendant, appellant herein, in which he admitted his ■signature to a full release for all damages arising out ■of the collision for the sum of $1100. A copy of the release is attached to the deposition and is known as ■plaintiff’s exhibit A. The court sustained the motion, ■which ruling is set forth as defendant’s first assignment of error.

Counsel is relying upon the case of Perry v. M. O’Neil & Co., 78 Ohio St., 200, 85 N. E., 41, and after a careful examination we are of the opinion that that case is not on all fours with the case at bar. In the O’Neil case the release that was executed was sought to be set aside upon the 'ground of fraud. The issue of fraud is not raised with reference to the release in the case at bar. The O’Neil case holds in paragraph three of the syllabus:

“If the execution and delivery of the release are admitted, the burden of proving it void is upon the releasor.”

Paragraph one of the syllabus provides:

“ * * * but if it is not void, but only voidable, he cannot maintain his action until the'release is set aside.” (Emphasis ours.)

That case holds in substance that unless there is evidence of fraud in the obtaining of the release the court will commit prejudicial error to submit to the jury the question of whether the release is the contract of the plaintiff.

The trial court properly sustained the motion to strike the cross-petition from the files.

The next assignment is that the court erred in,entering judgment for the plaintiff and against the defendant based on the general verdict, and in overruling defendant’s motion for a judgment. The record discloses that the following special interrogatory was submitted to the jury, “Was there any negligence on the part of Mr. Felder, the plaintiff, that proximately contributed to cause the collision? Answer yes or no.” The answer was “Yes.” This interrogatory was submitted to the jury by the defendant without objection by or on behalf of the plaintiff. It was signed by ten members of the jury. It is the claim of the defendant that the answer to the interrogatory is inconsistent with the general verdict, and that it is controlling and requires the court to render a judgment for the defendant.

Section 11420-17, General Code, provides:

“When either party requests it, the court shall instruct the jurors, if they render a general verdict, specially to find upon particular questions of fact, to he stated in writing, and shall direct a written finding thereon. The verdict and finding must be entered on the journal and filed with the clerk.”

Section 11420-18, General Code, provides:

“When a special finding of facts is inconsistent with the general verdict, the former shall control the latter, and the court may give judgment accordingly.”

Judge Leach in overruling the motion for a judgment non obstante veredicto held in substance that the interrogatory does not call for a special finding upon a particular question of fact as contemplated by the statutory provision, but rather for a combined finding of fact and conclusion of law. Citing Brier Hill Steel Co. v. Ianakis, 93 Ohio St., 300, 112 N. E., 1013 (the doctrine of which was later approved in Mason Tire & Rubber Co. v. Lansinger, 108 Ohio St., 377, 140 N. E., 770, and Elio v. Akron Transportation Co., 147 Ohio St., 363, 71 N. E. [2d], 707). The question presented there was identical with the question in the case at bar, and we believe that no further comment is necessary.

The next error assigned is that the court erred in overruling defendant’s motion for a new trial, and it was alleged that the court as a matter of law should find the plaintiff guilty of contributory negligence. We find no evidence in the record to support that conclusion, and the motion was properly overruled.

We find no errors in the record, and the judgment is ordered affirmed.

Judgment affirmed.

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


author: Hildebrant, J.

text:
    In re Estate of Hughes: Ross, Appellant, v. Marshall, Admr., Appellee.
    (No. 949
    Decided November 30, 1948.)

      Mr. George 8. Hawke, for appellant.

      Mr. Mark T. Brown, for appellee.
   Hildebrant, J.

Tlie Probate Court dismissed an application under favor of Section 10504-35 et seq., General Code, to admit to probate the purported last will of Mary M. Hughes, deceased. The will was alleged to have been lost before the death of the testatrix, without knowledge of such loss on her part. Therefore, under Section 10504-35, General Code, it was incumbent upon the appellant to prove that there was a will, duly executed, and unrevoked at the death of the testatrix, and, in addition, to prove by clear and convincing testimony lack of knowledge on the part of the testatrix as to the loss.

The hearing was .conducted ex parte, with the testimony of the witnesses, who were also under cross-examination, reduced to writing and forming the record before the court.

In its journal entry the court found that the proponent “has failed to supply the necessary clear and convincing evidence to warrant the court to admit the same to probate. The court therefore finds that said application to probate should be denied.” The application was dismissed at cost of applicant.

The transcript indicates that the proponent requested the court to state in writing its conclusions of fact found separately from the conclusions of law. This was not done prior to the final entry appealed from, although written findings were filed nunc protunc in the Court of Appeals. This filing the court considers too late and a nullity.

The failure of the court to make the requested finding in time is assigned as error here.

Section 11421-2, General Code, appears in Part Third, Title IV (Procedure in Common Pleas Court), which title contains, inter alia, three divisions, to wit, General Provisions, Civil Actions and Trial. The application of such section is therefore limited to the Common Pleas Court, unless otherwise provided by law or in this instance the Probate Code.

The Probate Code, in Section 10501-22, General Code,, provides:

‘ ‘ * * * The provisions of law governing civil proceedings in the Court of Common Pleas, so far as applicable, shall govern like proceedings in the Probate Court when there is no provision on the subject in this act. * * *” (Italics supplied.)

The probate of wills is exclusively the function of the Probate Court, its procedure in such a matter being ex parte in character, not adversary, and there are no like proceedings in the Common Pleas Court.

We, therefore, conclude that Section 11421-2, General Code, has no application to the probate proceeding here under consideration. It follows that, since no right to such a finding exists, error may not be predicated upon a failure or refusal to grant the request.

It was held in Louisville & N. Rd. Co. v. City of Cincinnati, 10 N. P. (N. S.), 594:

“Inasmuch as the provision of Section 11470, with reference to findings when the court tries the case, is limited to the Court of Common Pleas, a separate finding of facts and law cannot be asked as a matter of right in connection with a preliminary hearing in a. condemnation proceeding in the Court of Insolvency.”'

This court has carefully examined all the testimony-contained in the record and is in accord with the finding and judgment of the Probate Court, which judgment is, therefore, affirmed.

Judgment affirmed.

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


author: Wiseman, P. J.

text:
    Grelle, Jr., Appellant, v. Humbel et al., Appellees.
    (No. 4152
    Decided September 21, 1948.)

      Mr. Michael A. Coughlin and Mr. Walter W. Grelle,. Jr., for appellant.

      Mr. Arthur L. Spielmann, for appellees.
   Wiseman, P. J.

This is an appeal on questions of law from a judgment of the Municipal Court of Columbus, in which a default judgment rendered in favor of the plaintiff was vacated after term.

Plaintiff sued defendants for garage rent and obtained a default judgment on December 8, 1947, in the-amount of $89. On January 9, 1948, an execution was issued which was returned unsatisfied. On January-16, 1948, the defendants filed a motion to vacate the judgment, which motion was subscribed only by counsel for the defendants. On January 21, 1948, the court granted leave to defendants to amend at bar to ■change the style of the pleading from “motion” to “petition.” On the same date the court, without further proceedings, sustained the petition to vacate the judgment and granted defendants leave to file a tendered answer. On January 26, 1948, plaintiff filed his application for a rehearing on the petition to vacate the judgment, which application was overruled on February 9, 1948. After the motion was amended at bar and designated a “petition,” it was not verified and no summons was issued as required by Section 11635, General Code. No'proof of any of the grounds to vacate was submitted and the court made no finding •as to the validity of the defense.

The jurisdiction of the trial court to change its judgment does not extend beyond the term in which it is rendered. Reinbolt v. Reinbolt, 112 Ohio St., 526, 533, 147 N. E., 808. The vacation of a judgment after term is controlled by Section 11631 et seq., General Code, which specifically enumerates the procedural steps to be followed. A court is without power to vacate a judgment after term, unless there is a strict •compliance with the controlling statutory provisions. Terry v. Claypool, 77 Ohio App., 77, 86, 65 N. E. (2d), 883; Andrews v. Ackerman Coal Co., 59 Ohio App., 65, 17 N. E. (2d), 274; Rabb, Admr., v. Board of Commrs., 36 Ohio App., 481, 173 N. E., 255. The statutory requisites not being complied with, the court was without authority to vacate the judgment.

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

Judgment reversed.

Miller and Hornbeck, JJ., concur.


text:
    Cox et al., Appellants, v. Village of Union City et al., Appellees.
    (No. 666
    Decided November 23, 1948.)

      Mr. Richard H. LeFevre, for appellants.

      Messrs. Goubeaux & Goubeaux, for appellees.
   Wiseman, P. J.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Darke county. The plaintiffs, as taxpayers of Union City, Ohio, brought this action against the village of Union City, Darke county, Ohio, its clerk and treasurer, and also Charles Maloon, to enjoin the village from paying compensation to Charles Maloon for his-services as village marshal. Upon hearing the court entered judgment for the defendants.

Assigned as error is that the judgment is contrary to law and is not sustained by sufficient evidence or any evidence. The only issue for determination is whether Charles Maloon was a qualified elector of Union City, Ohio, and eligible for appointment as village marshal on Junfe 7, 1948, the date of his appointment.

The marshal of a village must be an elector thereof. ■Section 4384, General Code. The qualifications of electors are found in Sections 4785-29 to 4785-33a, inclusive, General Code. The residence qualifications of ■electors are found in Section 4785-30 which, in part, provides:

“No person shall be permitted to vote at any election unless he' shall have been a resident of the' state ■one year, of the county forty days and of the voting precinct forty days next preceding the election at which he offers to vote * *

Was Maloon a resident of the precinct 40 days or more preceding the date of his appointment?

There is no dispute as to the pertinent facts. The record shows that Charles Maloon was an elector of •Jackson township, Darke county, Ohio, prior to April 26, 1948;. that on April 26, 1948, he moved to his son’s' residence in Union City, Ohio, taking with him his clothing and some bedding; and that on April 29, 1948, his wife and three children moved to Union City, Indiana, taking the family household goods and oc■cupying a residence property owned by Maloon and his wife. Maloon testified that he intended to make Union City, Ohio, his permanent residence and that his family were compelled to move into their own property in Union City, Indiana, because of the housing shortage. Maloon testified that his family will move into Union City, Ohio, as soon as a residence is available. Maloon had owned property both in Ohio and Indiana but had never lived in Indiana. He lived 54 years in Union City, Ohio, with the exception of a few years when he lived on a farm in Jackson township, Darke county, near Union City, Ohio.

At the time he changed his residence, Maloon was a candidate for sheriff of Darke county. After his defeat in the May primary election, Maloon continued to live with his son because he was a special policeman in Union City, Ohio, and, also, because of the future-prospect of his appointment as marshal upon the resignation of his son. Upon the resignation of his son as marshal, Maloon was appointed marshal of Union-City, Ohio, on June 7, 1948.

The motive for changing his place of residence is immaterial if a clear intention is manifested to make-the new residence his permanent home. The plaintiffs contend that Maloon did not establish a domicile- or acquire a residence in Union City, Ohio, of a character to make him an elector. The point is made that it was not legally possible for Maloon to acquire a residence qualifying him as an elector of Union City,. Ohio, because of the residence of his wife and children in Union City, Indiana.

Section 4785-31, Genera] Code, in part, provides:

“All registrars and judges of elections, in determining the residence of a person offering to register or vote, shall be governed by the following rules, so-far as they may be applicable: * * *

“d. The place where the family of a married man- or woman resides shall be considered and held to be his or her place of residence; except that where the husband and wife have separated and live apart, the place where he or she resides the length of time required by the provisions of this act to entitle a person to vote, shall be considered and held to be his or her place0 of residence.” (Emphasis ours.)

It is conceded that Maloon lives apart from his-wife, but the plaintiffs contend that Maloon is not “separated” from his wife as that term is used in the above-quoted statute. The evidence shows that the-living apart was not the result of any disagreement or domestic difficulty between Maloon and his wife. The fact is that there was no marital discord. The contention of the plaintiffs is that under the provisions of Section 4785-31 d, General Code, the place whereMaloon’s family resides should be considered his residence for voting purposes. It is urged that the exception has no application to the facts in this case, the contention being that the exception applies only where the husband and wife have “separated and live apart” as the result of some family disagreement or marital difficulty. It is common knowledge that husbands and wives live separate and apart for various reasons, economic and otherwise, and not because of marital difficulties. We cannot conceive of the General Assembly intending to place upon the election officials the burden of determining in any given case whether the husband and wife are “separated and live apart” by reason of marital difficulties. If that were the legislative intent, we can visualize questions being raised whether there is any marital difficulty and, if the claim be disputed, a prolonged hearing to determine the question. In our opinion it is inconceivable that the General Assembly would ever adopt a policy which would require our citizens to unfold their marital secrets in order to acquire residential qualifications as electors. In our opinion there was no such legislative intent. As we yiew it, in order to effectuate the purpose of the law, the phrase, “separated and live apart,” should be given a broad, practical interpretation. If the husband actually lives separate and apart from his wife, he may acquire at the actual place of living a residence for voting purposes under the provisions of the statute.

In the instant case, Charles Maloon had resided in Union City, Ohio, more than forty days prior to the date of his appointment, and, therefore, had acquired the status of an elector of Union City, Ohio, on such date and was eligible for the appointment as marshal thereof.

The judgment is affirmed.

Judgment affirmed.

Miller and Hornbeck, JJ., concur.


text:
    The State of Ohio, Appellee, v. Fishwick, Appellant.
    (No. 7013
    Decided November 22, 1948.)

      Mr. Henry M. Bruestle, Mr. Robert J. Paul and Mr. Ralph E. Cors, for appellee.

      Mr. Michael G. Heintz, for appellant.

      Mr. Alton E. Purcell, for Cincinnati Dental Association.
   Hildebrant, J.

This is an appeal on questions of law from a judgment of the Common Pleas Court, affirming the conviction of the defendant in the Municipal Court of Cincinnati for practicing dentistry without a license.

Section 13207~General Code, requires everyone who practices dentistry to obtain a license, and Section 1329, General Code, provides that any person shall be regarded as practicing dentistry, within the meaning of the act to regulate the practice of dentistry, “who shall construct, supply, reproduce or repair any prosthetic denture, bridge, artificial restoration, appliance •or other structure to be used or worn as a substitute for natural teeth, except upon the order or prescription of a licensed dentist * * *, or who shall advertise, •offer, sell or deliver any such substitute or the services rendered in the construction, reproduction, supply or repair thereof to any person other than a licensed •dentist * * *.”

The affidavit charged that defendant, not being a licensed dentist in the state of Ohio and not having been furnished an order or prescription so to do by a li•censed dentist in the state of Ohio, did unlawfully practice dentistry in the following manner, and then followed the charge in the language of the statute quoted above.

The defendant advertised in a local newspaper, as follows:

“False Teeth Relined and Tightened

“Low cost! Takes 20 minutes! Since 1939 a proven technique, guaranteed to make a loose plate fit tight and comfortable, as good as new! Particularly •good for sore, tender mouths difficult to fit. Thousands relined! Come in for demonstration! Experience this perfectly tight, comfortable, clean cushion feel.

“$4 Satisfaction Guaranteed $4

“Dental Plate Reline Laboratory

“Room 1109 - 18 E. Fourth St.”

In response to the advertisement, a lady patient presented her denture to the defendant as being too loose, -whereupon, the defendant roughened the gum surface thereof with sandpaper, applied a pinkish plaster material from a tube to the roughened surface, had the patient replace the denture in her mouth and bite ■down thereon easily to hold it in place, andj after a short time, applied more of the plastic material to the denture and returned same to the patient, with instructions to bite down hard and not to eat for several hours, telling her that she could anticipate the coating applied would probably not harden completely until the next day.

The defendant admitted the foregoing acts and stated that the operation he had performed was known as relining resorted to when the teeth became loose, and that the purpose of the plastic on the gum was to make the plate fit tightly.

The defendant contends that what was done was not an offense, as not being a “repair” within the meaning of the statute, and that the state failed to prove the defendant was not included within the exceptions in the statute.

Since the denture became loose by reason of a shrinking of the jaw structure rather than by any decay, break, or disintegration of the denture itself, it is contended the operation performed by defendant was not a “repair.” Although, in numerous cases ■on their facts, the word, “repair,” has been judicially construed to apply to situations where there are conditions of decay, break, disintegration, disrepair, etc., it seems sufficient to the court to include and connote the roughening and “relining” operation detailed here.

The affidavit charged that the defendant, not being licensed or included in the exceptions, unlawfully practiced dentistry by doing the acts complained of, but there is no proof in the record as to defendant not being included within the exceptions. We hold that such proof was not necessary.

In 12 Ohio Jurisprudence, 300, Section 296, it is : stated:,

“Where the statute defining an offense does not make the exclusion of particular matters a part of the commission of the offense, it is not incumbent upon the state to make proof of the facts. Unless an exception or proviso is a part of the description of the offense, it need not be pleaded or proven by the state,, but is a matter of defense. ’ ’

In Krusoczky v. State, 108 Ohio St., 430, 434, 140 N. E., 614, it is stated:

“Unless an exception or proviso is a part of the description of a criminal offense, it need not be pleaded or proved by the state, but is a matter of defense. Hirn v. State, 1 Ohio St., 15; Billigheimer v. State, 32 Ohio St., 435; Hale v. State, 58 Ohio St., 676, 51 N. E., 154; and Brinkman v. Drolesbaugh, 97 Ohio St., 171, 119 N. E., 451, L. R. A. 1918F, 1132.”

In the landmark case of Hale v. State, supra, a prosecution for unlawful practice of medicine, paragraph four of the syllabus is:

“Where an exception or proviso in a criminal statute is a part of the description of the offense, it must be negatived by averment in the indictment in order to fully state the offense; but when its effect is merely to except specified acts or persons from the operation of the general prohibitory words of the statute, the negative averment is unnecessary.”

In conformity with the above-cited authorities, we find no error in the failure of the state to offer proof as to the exceptions. Defendant’s constitutional rights were protected in that he was adequately informed of the charge against him, and it was open to him to' show as a complete defense that he came within the exceptions.

The judgment is affirmed.

Judgment affirmed.

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


author: Hurd, P. J.

text:
    The State, ex rel. Cook, Appellee, v. Turgeon, Bldg. Commr., et al., Appellants.
    (No. 20681
    Decided November 24, 1947.)

      Messrs. Pennell, Carlson & Rees, for appellee.

      Mr. Emery G. Smith, for appellants.
   Hurd, P. J.

This is an action for a writ of mandamus to require the building commissioner of the city of Rocky River to issue a permit for the construction of a business structure at the northwest corner of Detroit and Erie roads, Rocky River, Ohio.

The relator purchased the real estate in question on December 9,1943, and on the same day applied for and' was granted a permit to construct a two-story commercial building with two stores on the ground floor and living suites above, under the provisions of a then existing city ordinance (No. 3213, effective from the year 1930) which classified relator’s premises °as “class D business district.”

However, he did not commence work of building within a period of six months from the date of the issuance of the permit, and thereafter on June 22, 1944, the permit was revoked by the mayor of the city, wThich he was authorized to do by virtue of the provisions of an ordinance which in part reads as follows:

“After permit has been issued, same may be revoked if work for which such permit was issued is not commenced within six months from issue.” (Section ‘ Y’ of city ordinance No. 1791.)

Thereafter, about one year later, on June 2, 1945, the relator filed a second application for a permit identical in form and substance with his first application. This second application was refused by the building commissioner because at that time the city was operating under a new zoning ordinance (No. 931 effective from May 2, 1944) which by its terms rezoned the premises in question, changing the classification from business to two-family or multiple residence (apartment house) use. The particular provisions of the new ordinance affecting the property of the relator are as follows:

“(a) That the north side of Detroit road from the westerly line of Parsons court, west to the city limits be and the same is hereby changed from class ‘ D ’ business district to class ‘B’ two-family residence district and class ‘C’ residence district multiple.

“(b) That the south side of Detroit road, from the westerly line of Rockland avenue, west to the city limits, be and the same is hereby changed from class ‘D’ business district to class ‘B’ two-family residence district and class ‘C’ residence district multiple.”

The action of the building commissioner in refusing the second application was later affirmed by the city board of zoning appeals on June 22, 1945. Thereafter, on April 6, 1946, a petition for a writ of mandamus was filed in the Common Pleas Court of Cuyahoga county and this appeal is on questions of law from a judgment allowing the writ. While there are six assignments of error, the principal ones are:

“2. The finding and order of the court are contrary to law. ’ ’

“5. The decree was given for the appellee when it should have been given for appellants.”

An examination of the record and exhibits, including drawings, photographs and maps, discloses that while the Detroit road frontage of this allotment known as Beach Cliff subdivision No. 3, from 1930 to May 2, 1944, was zoned for business property, none of such frontage has been so used or so developed. In fact, all the land fronting on Detroit road within the allotment including the property of relator is heavily wooded and' is unimproved, as appears from the photographs in evidence.

The land on the north side of Detroit road to the west of relator’s property is vacant for a considerable distance extending to Wagar road. To the east of relator’s property on the northeast corner of the intersection of Detroit and Erie roads is Beach public elementary school and the Rocky River board of education buildings. The development on the north side of Detroit road, east of the school buildings, is residential in character to Lakeview road, the next street east, with the exception of a confectionary store next to the school buildings, a storage building in the rear of one of the occupied residences, and an upholstering business carried on by the occupant of another residence.

On the south side of Detroit road to the west of relator’s property the development is residential with the exception of an old store at the corner of North-view road which was there many years prior to the establishment of any zoning ordinance.

Likewise, the development on the south side of Detroit road to the east of relator’s property is residential with the exception of a combined greenhouse and floral shop located diagonally across from the property of relator.

The parties stipulated that both Detroit and Erie roads are highly traveled streets and that Erie road is the only easterly entrance from Detroit road to the Beachwood allotment No. 2, which comprises several hundred homes between Detroit and Westlake roads. It was also stipulated that the city of Rocky River is a comparatively small municipality of approximately 9,000 population and improved for the most part by attractive single homes of the average valuation of $8,000 or more; that traversing such municipality in an easterly and westerly direction are the main thoroughfares, West Lake road, Detroit road, Hilliard road and Center Ridge road, all of which, with the exception of Hilliard road, are main interstate highways; that Wooster road is also a main highway extending north and south through the easterly portion of the city; that all the main highways are traversed by an endless flow of traffic each day; that such east and west highways extend through the entire city from its east and west boundaries; that all such highways under the original zoning ordinance No. 3213, passed in the year 1930, with the exception of approximately two miles on West Lake road, were zoned for retail business; that in addition thereto, Westwood avenue, also traversing the city from east to west practically its entire width, was also zoned for retail business, as well as Blount street (the main street extending from the Detroit avenue bridge north to West Lake road) and in addition portions of various side streets.

The principal business district of Rocky River is located about one-half mile east of relator’s property, commencing generally with the intersection of Blount street on the west side of the Rocky river bridge and extending west on Detroit road to Prospect avenue. At the point of the intersection of Erie and Detroit roads there is an ascending grade on Detroit road passing to the west of relator’s property and a descending grade on Erie road running north from Detroit road. Erie road is a narrow street and Detroit road at this point is a comparatively narrow street for a main intersectional highway.

The record clearly shows that ordinance No. 931, changing the classification of relator’s property from business to multiple residence property, was in the nature of a stopgap ordinance which changed the zoning classification of all the unimproved portions of the business frontage of the city with certain unimportant exceptions; that the ordinance was passed.in order to give the city the time and opportunity to prepare and adopt a more suitable plan of zoning development of the city; and that the city council with the approval of the city planning commission had employed a zoning expert to accomplish this purpose.

The witnesses for respondents were quite emphatic in their testimony to the effect that a definite traffic hazard would be added by a business development at this intersection, by reason of the close proximity of the public school buildings, the narrowness of the streets and the street grades above indicated.

Included among the witnesses, testifying to the traffic hazards on behalf of the city, were the superintendent of schools, the police chief, the mayor, and the chairman of the council zoning committee. Two of relator’s expert witnesses on cross-examination admitted that the business use of this property might cause a traffic hazard.

The record discloses extensive testimony with respect to the issuance of the first permit in 1943 and its revocation in June 1944. The record also indicates that the trial court gave considerable attention to this evidence, and apparently attached considerable importance to it, judging by the remarks contained in the record and the oral opinion at the conclusion of the evidence.

We think the question of the issuance and revocation of the first permit was not an issue in this case; that the power of revocation was properly exercised under section ‘Y’ of municipal ordinance No. 1791, the periinent part of which we have quoted. Likewise, it has beeu held in such cases that the relator does not acquire .a property right in the permit. It appears further that relator himself recognized the legal lapse of the .first permit and the authority of the city to revoke the •same, because this action in mandamus is predicated upon the refusal of the city to grant the second application made in 1945.

The first authoritative decision on the question of •zoning arose in this county in a case which was ultimately decided by the Supreme Court of the United ‘States. It was there held, inter alia, that whether the power exists to forbid the erection of a building of a particular kind or for a particular use is to be determined not by an abstract consideration of the building, •considered apart, but by considering it in connection with the circumstances and the locality. The same ■case held also that all zoning laws and regulations must find their justification in some aspect of the police power asserted for the public welfare and that the line which in this field separates the legitimate from the-illegitimate assumption of power is not capable of precise delineation. This means then that each case-must be determined by the facts, circumstances and-conditions surrounding it.

The general rule to be applied in all cases is well stated in 42 Ohio Jurisprudence, 812, Section 13, where the following appears:

t í * * * gu-(- ^ may be stated as a well-settled general, rule that before the court will declare a zoning ordinance invalid, it must clearly appear that it has no substantial relation to the public health, safety-, or morals, or to the general welfare. The converse of this proposition is equally true, and a zoning ordinance will be declared invalid where it has no relation-to public health, safety, or morals, or to the general-welfare. Thus, the inclusion of private land in a residential district under a zoning ordinance, with the resulting inhibition of its use for business and industrial* buildings, to the serious damage of the owner, violates-the Fourteenth Amendment of the United States Constitution, if the health, safety, convenience, or general' welfare of the part of the city affected will not be promoted thereby.” (Emphasis added.)

By the great weight of authority also, it is a general' rule that courts will not substitute their judgments for that of a legislative board charged with the duty of' determining the necessity and character of the regulation, so that if the validity of the legislative classification for zoning purposes is fairly debatable, the legislative judgment must be allowed to control unless-there is a clear abuse of legislative power or the ordinance is unreasonable.

Another proposition to which we think we should ■■call attention is the general rule of law that in a mandamus action “the facts submitted and proof produced •must be plain, clear and convincing before a court is justified in using the strong arm of the law by way <of granting a writ in mandamus.” In other words, where the validity of a zoning ordinance is being tested 'by a proceeding in mandamus, the burden is upon the relator to show by clear and satisfactory evidence that the ordinance is, for some reason, invalid.

The relator contends that the stopgap ordinance .No. 931 in its scope and effect was arbitrary and unjust, particularly because by its terms it eliminated all the business frontage of the city of Rocky River with the exception of 7,200 feet thereof, pending the en.-actment of a permanent zoning ordinance. It is ■claimed that this was done without regard as to whether the areas rezoned were already developed for business. The respondent offered to show the purpose and intent of the council, to justify the adoption of the stopgap ordinance, but the trial court declined to entertain the offer of such evidence on the .ground that it was immaterial to the issues of the instant case so far as the property of relator was concerned.

It is our opinion that the trial court did not err in its refusal to entertain evidence relating to the property other than that of the relator. Inasmuch as the validity of the ordinance is attacked by the relator, it must stand or fall with relation to its reasonableness- or unreasonableness in respect of its application to> relator’s property. The fact that it is an emergency or stopgap ordinance does not per se render it invalid. The validity of such ordinances has been frequently upheld in various jurisdictions. With respect to the-ordinance here attacked, the presumption is in favor of' its validity and it is therefore incumbent upon the-relator to show in the instant case that the action of' the council of Rocky River in the enactment of the-ordinance in the exercise of the police power is clearly unreasonable and arbitrary. Therefore, whether the ordinance was temporary in nature or permanent is immaterial. The real test is whether it was so clearly arbitrary and unreasonable as to have no substantial relation to the public health, safety, morals and' general welfare. In considering this question the-court should be ‘ ‘ guided by the reasonable expectation- and purpose as expressed in the ordinance or fairly to-be inferred therefrom of the ordinary person who sits-in council and enacts laws for the welfare of the general public.”

However, in our opinion the trial court erred in holding in effect that the zoning of this particular-property for multiple residence (two family or apartment house) purposes was an arbitrary use of the-police power unrelated to the public welfare, health,, morals and safety.

As indicated in a discussion of the legal principle applicable, it was not within the province of the court to substitute its judgment for that of the council or of the zoning board of appeals. This land so far as any building development is concerned is virgin territory. If there had been any previous development of this ■property of any kind, the court might reasonably consider whether a change in its use was an arbitrary exercise of police power. However, in the state of the record here before us for review, we are impressed by the fact that relator’s land and the adjoining frontage on Detroit road included within the allotment is entirely undeveloped. The character of the surrounding property is largely rural, residential and truck farm land. It cannot reasonably be said that this property is within the business area of the city. On the contrary, it is definitely outside the present well-developed area of the city.

Further, when we consider the testimony with respect to the possible traffic hazards involved, the close proximity of the public school and the other factors mentioned, can it be said that the council and the zoning board of appeals acted in an arbitrary and unreasonable manner in respect to the zoning of this property for multiple residence purposes? We think it cannot.

In conclusion, it is our view upon a careful examination of all the facts and surrounding circumstances, as •disclosed by the record, that the exclusion of a business development from this particular area by a zoning ordinance in relation to the premises of the relator cannot be said to be so clearly arbitrary and unreasonable and to have no such substantial relation to the public health, safety, morals and general welfare, a,s not to be within the police power of the municipal authorities of Rocky River. It follows therefore that the judgment of the Common Pleas Court in allowing, the writ of mandamus is contrary to law and should, be reversed.

For the reasons stated the judgment is reversed and-final judgment is rendered, for the appellants.

Judgment reversed.

Morgan and Skeel, JJ., concur.

      See State, ex rel. Ohio Hair Products Co., v. Rendigs, Bldg. Commr., 98 Ohio St., 251, 120 N. E., 836. See, also, Cahn v. Guion, Bldg. Commr., 27 Ohio App., 141, 160 N. E., 868. At page 145 •speaking through Vickery, J., the court said:
      “As already stated, the building inspector, upon the passage of ‘this ordinance, and its going into effect, revoked these building permits, and it is to that action that these proceedings are 'brought.
      “It is argued strenuously by plaintiff in this action that these permits gave a certain property right that could not be divested by any action of the building inspector, nor by the city council itself, ’because it is argued that they are within the inhibition of the 'Constitution of the United States which provides that no i-etroactive law shall be passed, nor any law impairing the obligation of a contract. There would be some strength in this argument, if it had not been wholly disposed of by the Supreme Court in the ease of State, ex rel. Ohio Hair Products Co., v. Rendigs, Bldg. Commr., 98 Ohio St., 251, 120 N. E., 836, in which the Supreme ■Court absolutely disposed of this contention.”

      See Village of Euclid v. Ambler Realty Co., 272 U. S., 365, 71 L. Ed., 303, 47 S. Ct., 114, 54 A. L. R., 1016.

      See 42 Ohio Jurisprudence, 815, Section 17 (Zoning and Zoning: Laws).

      See State, ex rel. Clifton Highland Co., v. City of Lakewood, 41 Ohio App., 9, at page 19, 179 N. E., 198. See, also, the third para-graph of syllabus:
      “Mandamus is granted only in clear case.”

      See 42 Ohio Jurisprudence, 826, Section 36, and State, ex rel. Morris, v. Osborn, City Mgr., 22 N. P. (N. S.), 549, 31 O. D. (N. P.), 197.

      See 42 Ohio Jurisprudence, 809, Section 8 and cases therein-cited. See, also, Williams v. Village of Deer Park, 78 Ohio App., 231, 69 N. E. (2d), 536.

      See State, ex rel. Ohio Hair Products Co., v. Rendigs, Bldg. Commr., 98 Ohio St., 251, at page 259, 120 N. E. 836.

      See Steudel v. Troberg, 76 Ohio App., 136, first paragraph of: the syllabus, 63 N. E. (2d), 241.


text:
    The State of Ohio, Appellee, v. Green, Appellant.
    (No. 4198
    Decided October 8, 1948.)

      Mr. Ralph J. Bartlett, prosecuting attorney, and Mr.. Henry L. Holden, for appellee.

      Mr. Joseph E. Bowman, for appellant.
   Hornbeck, J.

Defendant was indicted for, tried and convicted of the violation of Section 12423-1, General Code. Trial was had to a judge, a jury being waived. At the conclusion of the testimony of the state the defendant demurred to the evidence.

It is the claim of the defendant, appellant herein, that an assault is an essential to the offense charged ■and that the evidence does not establish proof of an .assault.

The indictment charges that,

“The defendant, being a male person over the age ■of eighteen years did unlawfully assault Joan Dillard, a female child then and there being under the age of sixteen years and wilfully and unlawfully made improper exposures of his person in the presence of said Joan Dillard, he, said Norman Green, then and there not committing or intending to commit the crime of rape upon said Joan Dillard.”

There is uncontradicted proof of the wilful and unlawful exposure of the person of the defendant in the presence of the female child. The occurrence took place in a movie theater. The defendant was seated in the first row immediately in front of the prosecuting witness who was seated in the second row. The defendant said to the child, “uncross ,your legs and I will give you a quarter.” She complied with the re■quest and told the defendant that she had done so. He then said to her, “I’ll bet you have on white panties.” She then became frightened and, when he began the exposure of his person, left the theater.

Eminent counsel for the defendant urges with much force that assault is essential to the commission of the offense charged in the section under consideration, Section 12423-1, General Code.

“Whoever, being a person over the age of eighteen years, shall assault a child under the age of sixteen years, [1] and shall wilfully take indecent and improper liberties with the person of such child, without committing or intending to commit the crime of rape-upon such child, [2] or wilfully make improper exposures of his person in the presence of such child,, shall be deemed guilty of felonious assault.”

It is manifest that there are two acts, either of' which constitutes the offense defined in the section,. (1) taking indecent and improper liberties with the person of a female child under the age of sixteen; and,. (2) wilfully making improper exposures of the person in the presence of such child. However, it is common to both acts that there be a person over -the age-of 18 years who is the actor and a child under the age of 16 years against whom the act is committed. As to the first offense, it is patent that it is also required' that there be an assault made upon the child under 16- and that it be made without committing or intending to-commit the crime of rape upon such child, which latter essential makes it requisite that the child upon whom the assault is committed shall be a female.

If the first part of the section, beginning "Whoever”' and ending with "sixteen years” is common to both-offenses, then it. also follows that assault is a concomitant of the second offense, namely, a wilful exposure of the person. There is no reported adjudication on this question but an examination of standard! works on criminal procedure discloses that they all incorporate the element of assault in the form of indictment prepared to charge the offense here considered. Baldwin’s Ohio Criminal Practice Manual (3 Ed.), Form No. 44; Schneider’s Ohio Criminal Code, Form-132, page 880. Likewise the indictment in this prosecution includes the element of assault. The prosecuting attorney in his brief concedes that it is necessary under this indictment to charge and prove that the act charged was done without committing or intending to commit the crime of rape upon the child, but urges that assault is not an element. The concession is not under consideration.

We fiave had considerable difficulty with the question and it is not free from doubt.

We have finally come to the opinion that a proper construction of the language of the statute is that assault is not a requisite element of the offense here charged.

The section providing, “Whoever, being a person over the age of eighteen years, shall assault a child under the age of sixteen years,” continues and defines the offense when the accused takes indecent and improper liberties with the person of the child under the age of 16 without committing or intending to commit the crime of rape upon such child. Then follows, “or wilfully make improper exposures of his person in the presence of such child, * * *.” (Emphasis ours.) The pronoun, “bis,” probably used as an adjective, modifies “person” and means the “person over the age of eighteen years” named in the first part of the section, and the adjective “such” modifies “child,” meaning the “child under the age of sixteen years” mentioned in the first part of the section. The word “assault” is not carried into the language of the latter part of the section and therefore, in our judgment, is not an essential of the offense there stated.

The word “assault” in the section seems to be surplusage, both as to the first and the second parts thereof. In the first part, manifestly when a person takes indecent and improper liberties with the person of a child, that is a battery which is inclusive of an assault. As to the second part of the section, it is entirely contrary to the offense there defined to couple it with an assault.

If the language of the section requires it, It was within the power of the Legislature to incorporate assault as an element of the second offense. But it is not reasonable to assume that it intended to create an offense of the wilful and improper exposure of the person in the presence of another and require the further element of an assault on that person.

Although no reported case has come to our attention which involves the narrow question here presented, we have learned of another case arising in Lucas county, State v. Northrop, No. 4126, in which the indictment was drawn under Section 12423-1, General Code, as the section appeared, effective June 16, 1921, 109 Ohio Laws, 45, identical in language with the present statute except that it then required that the assault be made upon a female child under the age of 14 years. The indictment in the Northrop case was for wilful and unlawful improper exposures of the person of the accused, a male, over the age of 18 years in the presence of persons under the age of 14 years. The indictment did not allege an assault. Conviction was had and appeal was taken to the Court of Appeals for Lucas county, Sixth Appellate District, and there, as in the trial court, it was urged it was essential to the conviction that an assault be charged in the indictment and proven. The court unanimously affirmed the judgment, but without opinion, and thereby determined that assault was not a material element of the offense charged. Thereafter, motion for leave to appeal was denied by the Supreme Court, 146 Ohio St., 630, 67 N. E. (2d), 5, of date, May 29, 1946.

If we should be in error in our construction of the statute, we examine the next question, namely, does the evidence rule out any proper'finding of an assault?

In Ohio, assault is not defined by statute except as it is included in Section 12423, General Code, defining assault and battery:

“Whoever unlawfully assaults or threatens another in a menacing manner, or unlawfully strikes or wounds another, shall be fined * * * or imprisoned * * *, or both.”

Assault is commonly defined as “Any unlawful offer or attempt to injure another with apparent present ability to effectuate the attempt under circumstances creating a fear of imminent peril.” 6 Corpus Juris Secundum, 796, Section 1.

It is an act done toward the commission of a battery, immediately preceding the battery, when the next movement would, at least to all appearances, complete the battery. Fox v. State, 34 Ohio St., 377.

It is a menacing or threatening of another, without touching the person. State v. Strothers, 7 N. P., 228, 8 O. D. (N. P.), 357; State v. Pate, 7 N. P., 543, 5 O. D. (N. P.), 732.

If the defendant had touched the person of the child under the circumstances appearing, it clearly would have been a battery. When he offered the quarter to the girl if she uncrossed her legs, he tapped it on the back of his seat in the theater. He was in such proximity as that he could have touched her. She was put in fear as is manifest by her subsequent conduct. In the absence of an express conclusion appearing in the record that the trial judge did not find assault established, we cannot say that it was not a permissible finding under the undisputed evidence.

The judgment is affirmed.

Judgment affirmed.

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


text:
    State Automobile Mutual Ins. Co., Appellee, v. Kaffenberger, Appellant.
    (No. 662
    Decided November 20, 1948.)

      Messrs. Mar chal é Mar chai, for appellee.

      Mr. Hugh A. Staley, for appellant.
   Wiseman, P. J.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Darke county. This is a damage action which was tried to a jury which returned a verdict for the plaintiff. Motion for judgment non obstante veredicto was overruled and judgment entered on the verdict. Motion for new trial was filed and overruled, at which time the court entered a nunc pro tunc order allowing interest on the amount recovered from the date of the verdict.

Plaintiff, appellee herein, agrees that defendant, appellant herein, has correctly stated the pertinent facts in her brief as follows: On February 5, 1946, at about 1:30 p. m. the defendant, Mary Kaffenberger, was driving in a southerly direction on state route No. 118 which is a highway extending in a northerly and southerly direction between the city of Greenville and the village of Ansonia, Darke county, Ohio. In front of the defendant was another automobile being driven in the same direction by C. O. Brock. The defendant was driving at a speed greater than that of Brock. Approximately one-half mile north of Green-ville an automobile with a trailer attached was stopped headed south in the south-bound or west traffic lane of the highway. When Brock approached the parked automobile, according to the testimony of the defendant, he drove to the left in an attempt to pass the parked automobile, and thereby obstructed the view of the defendant, Avho also drove to the left to follow the Brock automobile. Immediately and without warning Brock swerved to the right and came to a sudden stop behind the parked automobile and trailer.

Whether Brock swerved to the left is in dispute^ Brock was deceased at the time of trial.

The plaintiff’s assignor, Herman Horner, was-driving his automobile in a northerly direction in the north-bound or east traffic lane of the highway and when Brock swerved to the right to stop behind the-parked automobile, the defendant drove to the left of the Brock automobile and onto the east side or northbound traffic lane and side-swiped the Horner automobile. The day was rainy and the roadway was wet.

The Horner automobile was insured by the plaintiff company which paid damages to Horner and under a subrogation assignment brought this action against the defendant to recover damages resulting from the collision.

Plaintiff was permitted to introduce as an exhibit-the proof of loss and subrogation assignment and release which contained a written statement by Horneras to the manner in which the collision occurred. The defendant contends that the statement was a self-serving declaration and, therefore, was inadmissible. The defendant was not present when the statement was made. Horner was called as a witness and was-cross-examined. His testimony was substantially the-same as the statement. The court in its charge instructed the jury that the exhibit “was admitted for the purpose of showing that the present plaintiff was subrogated to the rights of the assignor, Herman Horner, and that is the only reason it was admitted' as an exhibit and is the only reason for which you will be permitted to use it as an exhibit.” In our opinion the exhibit was admissible for a limited purpose and under the instructions given to the jury its admission-was not prejudicial.

The defendant was interrogated as to a statement-made to her by Brock immediately after the accident". occurred. The court excluded the statement. The defendant claims it was admissible as part of the res gestae. In our opinion the record does not show that the statement meets the test stated in 17 Ohio Jurisprudence, 345, Section 276, and in State v. Lasecki, 90 Ohio St., 10, 106 N. E., 660, L. R. A. 1915E, 202, Ann. Cas., 1916C, 1182, as to spontaneity. The refusal to admit the statement was not error.

Defendant claims the court erred in refusing to direct a verdict for the defendant at the conclusion of plaintiff’s case and again at the conclusion of all the evidence, and, also, for refusing to sustain defendant’s motion for judgment non obstante veredicto. Defendant claims that the evidence raised a reasonable inference or presumption of contributory negligence on the part of the plaintiff’s assignor, which the plaintiff failed to remove, in that plaintiff’s assignor failed to reduce the speed of his automobile after seeing the parked automobile and the Brock and Kaffenberger automobiles approaching. The evidence shows that Horner at all times was driving his automobile at a reasonable and lawful rate of speed in the north-bound or east traffic lane. He had a right to assume that other motor vehicles being driven in the opposite direction would be operated on the proper side of the highway. We fail to find wherein Horner can be charged with contributory negligence.. In our opinion the evidence discloses that the direct and proximate cause of the collision was the negligence of defendant in driving her automobile across the center line of the highway onto the north-bound or east traffic lane and into the side of the Horner automobile.

Defendant claims the court erred in refusing to give special instruction No. 3 as requested by defendant which is as follows:

“The court charges you as a matter of law that if you find, by a preponderance of all the evidence in the-case, that the defendant, Mary Kaffenberger, was-placed in a position of unexpected peril or danger,, which- unexpected peril or danger was not caused by her own negligent act or acts, she, the said defendant, in that case would not be held to the same degree of' care which a person would be held to not placed in such, a position. If, therefore, you should find that the defendant, Mary Kaffenberger, was placed in a position of unexpected peril or danger, calling for quick and undeliberate action, and if you should further find: that in such position she used the care that an ordinarily prudent person would have exercised in the-same position, your verdict must be for the defendant.”

The evidence would not require or warrant a charge-on “sudden emergency.” Both the defendant and Brock were driving in the same direction in the same-lane of travel. The defendant was required to keep a proper lookout and so operate her automobile to avoid colliding with other motor vehicles in the proper use-of the highway. The Brock automobile stopped to-the rear of the parked automobile. There is no circumstance shown by the evidence which would excuse the-defendant of stopping in time to avoid a collision. The defendant was charged with the duty to operate her-automobile at such a rate of speed which would pei’mit her to stop within the assured clear distance ahead. There is ample evidence from which the jury could' conclude that she failed in the performance of this-duty.

Likewise the court did not commit prejudicial error in refusing to charge on “sudden emergency” in its-genera] charge as requested by defendant.

Defendant contends that the judgment is contrary-to law in that the court in a nunc pro tunc entry ordered the original judgment to carry interest from the-date of the verdict. The defendant contends that interest may be allowed only from the date of the judgment. Defendant cites the case of Daly v. Savage, 27 Ohio App., 133, 160 N. E., 881, in support of the-proposition that interest may be allowed from the date-of the verdict. In that case the action was upon contract. The principle of law announced in that case-has no application to an action in tort. This question-is controlled by Section 8305, General Code, which-provides for the allowance of interest on judgments. In Coulter, Admr., v. General Fireproofing Co., 67 Ohio App., 71, 35 N. E. (2d), 1003, the court held that-interest may not be allowed on the verdict and before-judgment. The plaintiff herein is entitled to interest on the judgment from the date of the judgment. See,, also, Cleveland Ry. Co. v. Williams, 115 Ohio St., 584, 155 N. E., 133. Judgment in tort carries the legal' rate of interest from the date thereof by force of the-statute. An order with respect to interest is unnecessary and superfluous. See Smith, Admx., v. Miller, 61 Ohio App., 514, 516, 22 N. E. (2d), 846.

Upon a remittitur of the interest on the verdict to-the date of the judgment being entered, the judgment as herein modified with respect to the interest is hereby affirmed.

Judgment modified and affirmed.

Miller and Hornbeck, JJ., concur.


text:
    Renner, Treas., Appellee, v. Rabkin et al., Appellees; Paul, Appellant.

      (No. 7010
    Decided November 22, 1948.)

      Mr. Carson Hoy and Mr. Melvin G. Rueger, for appellee treasurer of Hamilton county.
    Mr. Milton H. Schmidt, for appellees Samuel Rabian and Lena Rabkin.

      Mr. Stewart S. Cooper, for appellant.
   Hildebrant, J.

This is a suit in the name of the ■county treasurer to foreclose the lien for taxes on delinquent lands of the appellees. Following the procedure outlined in the Code, the cause proceeded to sale by the sheriff, where appellant became the high bidder. 'The order for sale was returned and filed by the •sheriff on May 28, 1948.

On June 1, 1948, on motion, after notice to all parties, it appearing to the court that appellees had paid to the clerk of courts the full sum of the judgment plus interest and costs as required by Section 11690, Gen•eral Code, the sale was set aside and held for naught ■and the property redeemed to the judgment debtors.

The appeal on questions of law is from that action •of the court.

No bill of exceptions is filed herein, so that the court is limited to determining from the record before it the question as to the power of the court to make the order here challenged.

It is contended by appellant that by virtue of Section 5724, General Code, no right of redemption exists ■unless exercised before foreclosure proceedings have been instituted.

Section 5724, General Code, reads:

“All delinquent land upon which the taxes, assessments, penalty or interest have become delinquent, may be redeemed at any time before foreclosure pro-1 ceedings thereon have been instituted, by tendering to the county treasurer the amount then due and unpaid. ’ ’

That section merely permits redemption of all delinquent lands before the institution of foreclosure proceedings by tender of payment to a particular official — the county treasurer. It contains no language importing it to be the exclusive mode of redemption, nor of barring all further opportunity of redemption. Under this section is cited Friedman v. Van Antwerp, 14 C. C. (N. S.), 333, 23 C. D., 518, wherein the court held:

“The owner of real estate, ordered sold in satisfaction of a lien for unpaid taxes or assessments, may redeem the property at any time before confirmation by payment of such taxes or assessments with penalties.”

It further appears that the statutes here invoked for sale of the delinquent lands grant the right to redeem upon proper payment prior to confirmation of the sheriff’s sale. Section 5718-3, General Code, provides in part:

“The proceedings for such foreclosure shall be instituted and prosecuted in the same manner as is now or hereafter may be provided by law for the foreclosure of mortgages on land in this state, excepting that if service by publication is necessary, such publication shall be made once a week for three consecutive weeks instead of as provided by Sections 11295 or 11298 of the General Code, and the service shall be complete at the expiration of three weeks after the date of the first publication.”

The law relating to foreclosure of mortgages, to which we are directed, Section 11690, General Code, provides:

“In sales of real estate on execution or order of ■sale, at any time before the confirmation thereof, the debtor may redeem it from sale by depositing in the hands of the clerk of the court to which such execution •or order is returnable, the amount of the judgment or judgments or decree upon which such lands were sold, with all costs, including poundage, and interest at the rate of eight per cent per annum on the purchase money from the day of sale to the time of such deposit; or, if it be made in vacation, to the first day of the next term, except where the judgment creditor is the purchaser, the interest at such rate on the excess above his claim. The court thereupon shall make an •order setting aside such sale, and apply the deposit to the payment of such judgment or judgments or decree .and costs, and award such interest to the purchaser, who shall receive from the officer making the sale the purchase money paid by him, and the interest from the clerk. Nothing in this section shall take away the power of the court to set aside such sale for any reason for which it might have been set aside prior to the enactment hereof.”

Under the above section, it seems clear the right •of redemption remained in the judgment debtor and that the court had power to so order, as it did prior to confirmation.

In addition, it would appear that the statute preserves any equitable power reposing in the court to ■set aside judicial sales even after confirmation.

Having concluded that the statutes gave the right to redeem here exercised, this opinion will not be extended to other contentions argued.

The judgment is affirmed.

Judgment affirmed.

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