text:
    Thoms, Appellee, v. The Bissinger Candy Co., Appellant.
    (No. 6616
    Decided February 18, 1946.)

      Mr. Stewart S. Cooper, for appellee.

      Mr. Joseph Sagmeister, for appellant.
   Matthews, J.

The question presented by this appeal is whether unassigned dower consummate is transferable to a stranger to the title, so as to vest in such transferee a cause of action to have the widow’s interest determined and set off to the transferee.

The Court of Common Pleas held that it was transferable, and this appeal is from that judgment.

Charles Broadwell Thoms and Hortense Marie Er-sea Florence Thoms were husband and wife. During their coverture, Charles Broadwell Thoms owned the premises in which the right of dower is asserted in this ease. In 1922 he conveyed by warranty deed the premises to his agents, William V. Ebersole and Dale G. Ebersole, who in turn conveyed them to the defendant in this case. Hortense Marie Ersea Florence •Thoms did not join in the deed of her husband or in any other way release her dower in the premises.

Charles Broadwell Thoms died in 1932. On January 22, 1941, Hortense Marie Ersea Florence Thoms executed and delivered a written instrument in terms transferring all her dower interest in the premises to the plaintiff and this was followed on August 11, 1943, by a deed of general warranty from her, purporting to convey the same interest to the same transferee. So there is no doubt that the widow complied with all the forms of law to transfer to the plaintiff this interest in the real estate and effectively did so if the interest itself — an unassigned dower consummate — is capable of transfer to a stranger to the title.

Dower consummate before assignment was and is a chose in action — a right to have dower assigned (14 Ohio Jurisprudence, 683) — and, like most choses in action, was nontransferable at common law. Id. But, in equity the opposite rule developed and, in the absence of some restraining principle of public policy, all- choses in action were assignable and the assignee was permitted to maintain an action in his own name. At an early date the common-law courts recognized the equitable title and whenever equity recognized the assignment the common-law courts, permitted the assignee to sue in the name of the assignor. 4 American Jurisprudence, 323.

In conformity to the general common-law rule of nonassignability of choses in action, the common-law courts held that unassigned dower consummate was nontransferable- to one having no title to the premises against which the right of dower was an incumbrance. But just as the general rule against assignments of choses in action was relaxed, so the right to transfer unassigned dower. consummate was increasingly recognized. In 17 American Jurisprudence, 707, it is said:

“As a general rule, a widow cannot convey her unassigned right of dower to a third party, although she may release it to the heir; but equity will, as in the case of other choses in action which are not assignable under common law, recognize her assignment, and the assignee can maintain a bill in equity, to enforce the right of dower.”

While there is no case in which the Ohio Supreme Court has squarely decided the issue, we think the law on this subject has gone through the same development here as elsewhere and that at this time unassigned dower consummate is as alienable as any other chose in action or possession. In 14 Ohio Jurisprudence, 683 and 684, it is said:

“Moreover, in equity dower consummate before assignment seems to have been always transferable in Ohio to a stranger to the title.”

And disregarding the argument that before assignment dower consummate was a personal, and not property right and that the law “had put its safeguards with jealous care around this right of dower for the protection arid support of the helpless, ’ ’ the court held in Boltz v. Stolz, 41 Ohio St., 540, that:

“A widow’s unassigned right of dower, in lands of her husband, occupied and enjoyed by herself and their children, may be subjected by proceedings in equity to the payment of a judgment against her upon a debt created by her after her husband’s death.”

And that the judicial decisions have correctly reflected the public policy of the state is made manifest by legislative enactments through the years, removing the disabilities of coverture and, generally speaking, placing married women on the same plane of rights, responsibilities, and powers, as unmarried women. And dower except as to real estate corivéyed away or mortgaged during coverture without the consort (either husband or wife) joining therein has been abolished and the widow placed in the category of an heir to all other property of which the deceased consort was the owner at the time of his death; Section 10502-1, General Code.

But, it is urged that there is no provision for the assignment of dower except on the petition of the widow or widower. It is true that by Section 12005 et seq., General Code, special provision is made for the assignment of dower on the petition of the widow or widower. However, there is no statutory provision against alienation and no denial to the alienee of the right to invoke remedies for the assertion of his rights within the jurisdiction of the courts.

This action was filed in the Common Pleas Court which is a court of general jurisdiction, administering both law and equity, through the one form of a civil action. It could mould the relief to afford a remedy for the right which it found the plaintiff to have.

Even assuming that the remedy provided by .Section 12005 et seq., General Code, is restricted to the widow or widower, we find no legal objection to the court applying it by analogy in an action by the transferee of unassigned dower consummate.

For these reasons, the judgment is affirmed.

Judgment affirmed:

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


source: Caselaw Access Project

author: Ross, J.

license: Public Domain

text:
    The Central Hyde Park Savings & Loan Co., Appellee, v. Feck et al., Appellants, et al., Appellee.
    (No. 6542
    Decided November 13, 1945.)

      Mr. Gordon Rich, for appellee The Central Hyde Park Savings & Loan Company.

      Mr. William B. Collins, for appellants Walter Feck and George E. Thurner.

      Mr. Aubrey M. Foiles, for appellee William IT. Barber.
   Ross, J.

This is an appeal on questions of law from a judgment of the Court of Common Pleas of Hamilton county, Ohio.

The original action instituted by the plaintiff 'was for foreclosure of a ■ mortgage and recovery of the amount of balance due on a note secured by such mortgage. The plaintiff, an appellee herein, is The Central Hyde Park Savings & Loan Company. The defendants Walter Feck and Emma Feck were owners of the real estate involved and mortgagors. The defendant William H. Barber held a money judgment against the Fecks, which at the time the action was. commenced, was a junior lien to that of the plaintiff. George E. Thurner purchased the real estate from the Fecks.

Walter Feck and George E. Thurner are the appellants.

The question presented by this appeal arises by reason of the dismissal of the original action by the plaintiff, whose mortgage claim was satisfied. The court made entry of such dismissal.

Later Barber, the judgment creditor, succeeded in causing the court to vacate the entry dismissing the action,, as far as he personally was concerned, the action then being reinstated to the extent of permitting Barber to prosecute his cross-petition against the Fecks and Thurner, the purchaser, so far as the latter was involved. .The motion to vacate was filed after the term in which the entry of dismissal was made.

From that judgment, vacating in part the former entry of dismissal and reinstating the action as to Barber, the Fecks and Thurner appeal on questions of law.

The primary question thus presented is whether a contest between codefendants may be retained after the dismissal of the principal action by the plaintiff.

A secondary question is presented, owing to the fact that the Barber judgment became dormant after the filing of his cross-petition but prior to the dismissal of the action by the plaintiff. This question is whether the filing of a cross-petition in an action for foreclosure prevents dormancy of a judgment held by such cross-petitioner, in the absence of the usual procedure required to prevent such dormancy.

A third, and probably a preliminary question, is also raised by the appellants in that, the original entry of dismissal of the action was modified as to Barber •upon his motion, instead of upon a petition. Such action in modifying the original entry being after term, it is claimed that such modification or vacation of the former entry of dismissal could occur only upon petition to vacate, and that such vacation or modification having taken place upon motion of Barber, such judgment of vacation or modification must be set aside by this court.

Section 11634, G-eneral Code, provides:

“The proceedings to correct mistakes or omissions of the clerk, or irregularity in obtaining a judgment or order, shall be by motion, upon reasonable notice to the adverse party, or his attorney in the action. But the motion to vacate a judgment because of its rendition before the action regularly stood for trial, can be made only in the first three days of the succeeding term. ’ ’

Section 11631, G-eneral Code (103 Ohio Laws, 426), provided in part:

‘£ The Common Pleas Court or the Court of Appeals may vacate or modify its own judgment or order, after the term at which it was made:

“1. By granting a new trial of the cause, within the time and in the manner provided in section eleven thousand five hundred and eighty.

“2. By a new trial granted in proceedings against defendants constructively summoned as provided in section eleven thousand two hundred and ninety-six.

“3. For mistake, neglect or omission of the clerk, or irregularity in obtaining a judgment or order.”

Section 11635, G-eneral Code, provides:

“The proceedings to vacate the judgment or order on the grounds mentioned in divisions four, five, six, seven, eight, nine and ten, of the first section in this chapter [G-. C. Section 11631], shall be by petition, verified by .affidavit, setting forth the judgment or order, the grounds to vacate or modify it, and, if the party applying was defendant, the defense to the action. On such petition a summons shall issue and be served as in the commencement of an action.”

Therefore, if the original entry of dismissal was due to any “irregularity in obtaining” such order, a motion to vacate such original entry of dismissal would meet the procedural requirements involved.

It is obvious, if the position of Barber is correct, that the court was in error in dismissing the action as far as the codefendants were concerned. It appears from the evidence that Barber had no notice of any kind that the court intended to dismiss the action. If the court was in error in dismissing the action as to Barber, the entry of such judgment of dismissal without any notice to him or his attorney of record would constitute an irregularity in obtaining the judgment, justifying its vacation or modification upon motion. There is no certificate by the trial court that the bill of exceptions presented to this court contains all the evidence presented to that court. There is always a presumption in favor of the regularity of a judgment of a court of record, and that the same in absence of an affirmative showing to the contrary was based upon sufficient evidence. See 2 Ohio Jurisprudence, 438, 449, Sections 383, 393; Lyons v. Weihe, 62 Ohio App., 527, 24 N. E. (2d), 835.

Upon this preliminary question, therefore, it must be concluded that the final judgment of vacation cannot be attacked because the same was predicated upon motion rather than petition.

Incidentally, there can be no doubt that such final judgment, modifying the former action of the court, constituted a final order from which appeal on questions of law may be taken to this court. Van Camp v. McCulley, Trustee, 89 Ohio St., 1, 104 N. E., 1004. In that case the vacation was upon motion after term. At page 8 of the opinion it is stated:

“The discretionary control of the court over its own orders and judgments, during the term at which they are entered, ends with the term. The power of the court to set aside or vacate its judgments, subsequent to the term, is governed by settled principles to which the action of the court must conform, and for a departure from which the judgment or order of vacation may be reversed on proceedings in error.”

The second paragraph of the syllabus in Frankenstein v. Behrendt, 60 Ohio App., 403, 21 N. E. (2d), 678, is:

“A Common Pleas Court having jurisdiction to set aside a judgment by motion after term on certain grounds set forth in Section 11631, General Code, an order, although erroneous, setting aside a judgment on one of such enumerated grounds, is not a nullity, but is a final order which may be reviewed. ”

See, also, Cox v. Cox, 104 Ohio St., 611, 136 N. E., 823; Chandler & Taylor Co. v. Southern Pacific Co., 104 Ohio St., 188, 194, 135 N. E., 620.

Proceeding then to the primary question: Did the dismissal of the action by the plaintiff foreclose the codefendants from further litigating issues defined by the pleadings?

. In the first place, the plaintiff is not in any way affected by the vacation of the order of dismissal. The effect of such order of vacation is to reinstate the co-defendants Barber, Thurner and the Fecks in the position they had at the time of the entry of the original order, with the exception that the lien of the plaintiff is removed. How are the appellants, therefore, prejudiced? The only real ¿result is to remove the claim of the plaintiff against them. Had it not been removed, they would have proceeded to assert their respective rights upon the subject of the action, to wit, the real estate,, as they will now do under the modified order.

It is true that the claim of the plaintiff might have exhausted the proceeds of the sale of Fecks’ property. How are the appellants prejudiced in that the real estate is still required to respond to the junior lien upon such premises? Such prejudice does.not appear. No question is raised as to the right of. plaintiff to dismiss its action. Certainly, it had such right. Section 11587, General Code, provides:.

“If a set-off or counterclaim be pleaded, the defendant shall have the right to proceed to a trial of his claim although the plaintiff has dismissed his action, or fails to appear.”

The language of this section is unqualified. The case of Orndorff v. Ohio Power Co., 75 Ohio Ápp., 94, 98, 61 N. E. (2d), 213, has been cited by appellants as having some bearing upon their contention. The applicability of the pronouncement in that case to the instant situation is not apparent.

There is another consideration which seems pertinent to this question. The defendant Barber was seeking no affirmative relief against his codefendants. He merely joined in the prayer of the plaintiff for sale of the premises npon foreclosure and prayed that the liens be marshaled, and that, npon distribution of the proceeds of sale, he be paid the amount of his lien. To such extent the action was one in rem.

The prayer of the plaintiff for personal judgment against the Fecks being eliminated, the action becomes clearly one in rem. The real estate involved was the subject of the action. Wood & Pond v. Stanberry, 21 Ohio St., 142, 149; Caldwell Bldg. & Loan Assn. v. Bigley, 2 C. C. (N. S.), 297, 15 C. D., 431. The plain-, tiff, having brought the subject into this action in rem, cannot now withdraw it from the claims of defendants who have a direct and continuing interest in such subject of action. The plaintiff may withdraw its interest in the subject of the action, but this cannot affect the continuing rights of the defendants in the same.

The defendant Barber is seeking no relief against the Fecks or Thurner. His claim is against the subject of the action. Barber has his judgment. He seeks only its satisfaction from the real estate. He had a perfect right to seek such relief in the instant action and no act of the plaintiff can deprive him of that right now. 31 Ohio Jurisprudence, 815, Section 227.

Upon the second question, that involving the dormancy of the judgment after the cross-petition of Barber was filed, the authorities are in accord that the filing of a petition or cross-petition in an' action to marshal liens prevents any loss of lien by the petitioner or cross-petitioner by reason of the fact that his judgment may otherwise become subsequently dormant. Lawrence v. Belger, 31 Ohio St., 175; Sullivan v. Hart, 2 O. D. (N. P.), 592, 32 W. L. B., 185; Dempsey v. Bush, 18 Ohio St., 376; Cincinnati v. Hafer, 49 Ohio St., 60, 30 N. E., 197; Bauman v. Goulet, 2 C. C. (N. S.), 251, 15 C. D., 473.

The very fact that such is the law is another impolling consideration in sustaining the status of the defendant Barber after dismissal of the action by the plaintiff. His judgment lien is thus still retained.

For these reasons, the judgment is affirmed.

Judgment affirmed.

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


author: Wiseman, J.

text:
    Fox, Appellee, v. Industrial Commission of Ohio et al., Appellants.
    (No. 1849
    Decided December 18, 1945.)

      Mr. Robert J. Kelly, for appellee.

      Mr. TLugh S. Jenkins, attorney general, Mr. G. G. L. Yearick and Mr. William T. Burgess, for appellants.
   Wiseman, J.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Montgomery county, Ohio.

The record in this case shows that the claimant, Mabel Pox, appellee here, on the 24th day of May 1941, was employed by Florence Selders, who conducted a restaurant, known as “The Family Corner,” at 1835 East Fifth street in Dayton, Ohio; that on such date the employer was subject to the provisions of the Workmen’s Compensation Act; that Florence Selders failed to comply therewith; that on such date the claimant, while in the course of her employment, opened the refrigerator and a milk bottle fell out and broke and fragments of the bottle cut her left leg near the instep, from which injury the disability arose; and that she presented a claim to the Industrial Commission, which was allowed for the period beginning June 22, 1941, to September 7, 1941. Subsequently, to wit, on February 6,1942, the claimant filed a motion for additional compensation and for payment of additional medical treatment after September 7,1941, which claim was disallowed by the commission. On November 4, 1943, she filed her petition in the Common Pleas Court of Montgomery county. A jury was waived and the matter was submitted to the court which rendered judgment in favor of the claimant. A motion for a new trial by the Industrial Commission was overruled. From that judgment of the trial court, this appeal has been taken.

The Industrial Commission, one of the appellants here, assigns as errors the following :

1. The judgment of the Court of Common Pleas is contrary to law.

2. The judgment of the Court of Common Pleas is manifestly against the weight of the evidence.

3. Other errors apparent on the face of the record.

It is the contention of counsel for the commission that the claimant did not prove a causal relationship between the injury sustained on May 24, 1941, and the disability which was suffered after September 7, 1941. Counsel contend that claimant has clearly failed to make a prima facie case, as she failed to establish by expert medical testimony causal relationship as a probability. Counsel cite the cases of Drakulich v. Industrial Commission, 137 Ohio St., 82, 27 N. E. (2d), 932; Hof v. Industrial Commission, 62 Ohio App., 241, 23 N. E. (2d), 659.

In the .Drahulich case, a causal connection was not established between the injury to the claimant’s back and his subsequent death from cancer of the liver. In that case the court held that causal connection must be established by the testimony of medical witnesses competent to testify on that subject. In the Hof case, the question arose as to whether the injury suffered in the course of employment accelerated a previous existing cardiac condition and hastened the-death of the decedent. The court held that medical testimony was required to sustain such a claim.

In certain types of cases expert medical testimony is required to show causal connection between the injury and the disability. In point of time the disability may be so far removed from the injury, or the disability manifested may be of such a peculiar character, that the causal connection can be established only by expert medical witnesses.

We do not believe that the case at bar falls into that category of cases where expert medical testimony is required. Lay witnesses are permitted to testify with regard to matters which are within their knowledge and with which the average person is familiar. The claimant in this case suffered an injury to her left instep caused by broken glass. The wound became infected and caused a swelling which prevented her from putting her weight on her left foot and caused her to use crutches for the greater part of a year. We believe that it is a matter of common knowledge that such a disability would arise by reason of the injury suffered by the claimant. However, three physicians were in contact with the claimant and two of these physicians- testified that her disability was caused by the injury suffered' on May 24, 1941. Consequently, in this case, we have direct testimony by expert medical witnesses that a causal connection did exist between the injury suffered by the claimant on May 24, 1941, and the disability which she suffered subsequent to September 7, 1941.

Since the commission contends that the judgment of the trial court is manifestly against the weight of the evidence, it will be necessary to give a brief review of the facts. The record shows that on May 30, 1941, six days after claimant suffered the injury, she called on her physician, John L. Carter, who testified that on that date he found an infected cut on her left instep. He treated the cut for a period of several days, attempting to clear up the infection. He testified that her condition did not improve, and that on June 23, 1941, he referred her to F. L. Shively, a surgeon. Shively testified that at the time she was referred to him she was suffering from an infection on her left leg, which he described as being ‘ ‘ on the flexor surface of the lower leg,” locating the wound a little higher than Carter or the claimant, both of whom testified that the infection was on the-instep of the left leg-. However, the record conclusively shows that Shively treated her for the injury which she suffered on May 24, 1941. Shively committed her to the Miami Yalley Hospital where he attended her. Carter also testified that he' visited her while she was under the care of Shively in the hospital. After she left the hospital, Shively testified that he treated the lesion at his office and dismissed claimant on or about September 13, 1941. There is some evidence in the record to the effect that some differences arose between the claimant, Shively and his nurse immediately prior to the termination of Shively’s services. The claimant returned to Carter,- who testified. that he examined her leg on September 19, 1941, and found that it had not yet healed and needed further treatment. Carter then referred her to Dr. James Shaffer. She made her first visit to Shaffer on September 20, 1941. Shaffer did not testify, but counsel agreed upon a stipulation. Shaffer stated that he first examined the claimant on September 20, 1941, “in regard to an ulcer on the left instep, being on the lower middle thisd, flexor aspect of the left leg”; and that he treated her on the following dates, September 20, 23 and 27, and October 7, 38 and 24, 1941, January 6, 7, 8, 15 and 29, February 23 and 24, and March 3, 5, 9, 13, 17, 21 and 28, 1942. Shaffer further stated that “all of the above mentioned treatments were made with reference to • that condition.” “That condition” to which Shaffer referred was the ulcer on the left instep. He further stated that on April 6, 1942, he performed an operation on the claimant for ligation of. varicose veins at ,the Miami Valley Hospital, and on June 12, he performed an operation for skin graft on the claimant at The Miami Valley Hospital. It will be observed that Shaffer did not state that he treated the claimant from October 24, 1941, to January 6, 1942. The claimant testified that from October 29, 1941, to December 5, 1941, she was confined to the St. Elizabeth Hospital at the suggestion of Shaffer. She again went to the Miami Valley Hospital under the care of Shaffer on April 2, 3.942, and left, July 30, 1942. The claimant testified that when she first went to Shively he opened the wound and put three stitches in her instep; that later she went to the Miami Valley Hospital under his care for a period of approximately two weeks in the first part of July 1941; and that at the time Shively dismissed her and she returned to Carter, the wound was not healed and pus and blood were coming out of the wound. Upon being questioned relative to the treatment given her by Shaffer, the record shows the following:

“Q. During that time did Dr. Shaffer treat you and see you in the hospital? A. Yes, and he made two operations on the left leg.

“Q. Mrs. Fox, your injury upon your left instep, is that a continuation of the injury that you had arising on May 24, 1941?

“Mr. Patterson: Objection.

“Referee: Overruled.

“Mr. Patterson: Exception.

“A. Yes, sir.

“Q. Have you ever had any other injury on that instep? A. No, sir.

“Q. The particular treatment that Dr. Shively and Dr. Carter and Dr. Shaffer made were all for the same injury? A. Yes, sir.”

The claimant contends that the disability which she suffered after September 7, 1941, was caused by the injury which she sustained on May 24, 1941, and her contention is supported by testimony of Carter and Shaffer. Shively alone stated that the wound which he first treated had completely healed, and that when he examined her on May 21, 1942, at the solicitation of the Industrial Commission, he found her suffering from an ulcer near the outer angle bone, which he described as a near breakdown of a varicose ulcer.

We have been unable to reconcile the statements of the three physicians. It was the duty of the court to weigh the evidence and it had the right to believe certain portions of the testimony and to disbelieve other portions. The trial court apparently believed the testimony of the claimant, Carter and Shaffer.

After considering all the testimony in this case and giving due consideration'to all the evidence, this court cannot conclude that the judgment of the trial court was manifestly against the weight of the evidence. Furthermore, as we have hereinbefore stated, there is direct evidence in this case given by medical witnesses to the effect that after' September 7, 1941, the claimant was disabled by reason of the injury sustained on May 24, 1941; that she was confined to the hospital on two different occasions subsequent to September 7, 1941, and underwent numerous treatments for such injury; and that a causal connection between the injury suffered on May 4, 1941, and the disability subsequent to September 7, 1941, has been established by a preponderance of the evidence. We find no error in the record and, therefore, affirm the judgment of the trial court.

Judgment affirmed.

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


text:
    Portney, Appellee, v. Frank, Appellant.

      (No. 1877
    Decided January 4, 1946.)

      Mr. Paul J. Qaiser, for appellee.

      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, in a cáse in which plaintiff, a real estate broker, sued for a commission and obtained in' his favor a verdict in the amount of $980 with 6 per cent interest from April 20, 1944.

The defendant, appellant herein, in his assignment of errors claims that prejudicial error was committed in the following particulars:

“1. That counsel for plaintiff was guilty of misconduct in his argument before the jury;

“2. That the court erred in refusing judgment to. the defendant notwithstanding the verdict;

“3. That the court erred in refusing to grant a new trial;

• “4. That the court erred in giving a special charge which was incomplete, in that it failed to define what is meant by ‘procuring cause of sale.’ ”

The record discloses that the defendant and the purchaser entered into an indemnity agreement whereby the purchaser agreed to pay the real estate broker’s commission if the defendant was required to pay such commission. The court was careful to keep from the jury any testimony relative to this indemnity agreement. The court excused the jury several times when this matter was being argued by counsel, which resulted in proffered testimony. However, counsel for plaintiff did cross-examine the purchaser, Mr. Longo, who admitted that he had an interest in the case if the plaintiff should win. It is always proper for counsel to question a witness relative to his interest in the outcome of the ease. Furthermore, we believe it is proper for counsel to arg'ue before the jury that the witness had an interest. During the argument, counsel for the plaintiff stated that this interest was a “money” interest. Counsel for defendant objected to this line of argument and moved for the withdrawal of a juror and a continuance of the case. The court overruled the motion and instructed the jury to disregard the statement made by counsel. We do not believe that the argument of counsel was prejudicial to the defendant’s case. The evidence which was introduced and the statement made by counsel did not require the court to withdraw a juror and continue the case on the ground that evidence of an indemnity agreement had been brought to the attention of the jury. In this case, neither the evidence nor the statement of counsel reached that point, and it is our opinion that prejudicial error was not committed.

The defendant’s second and third assignments of error may be considered together. The defendant contends that the- court erred in refusing to render judgment for the defendant notwithstanding the verdict and also that the court erred in refusing to grant a new trial. The court is required to review the evidence which is conflicting on several important issues in the case. The record shows that plaintiff and defendant entered into an oral contract, about December 27, 1943, whereby the plaintiff was employed as a real estate broker to sell an apartment building owned by the defendant. The plaintiff and the defendant do not agree on the terms of the employment. The plaintiff testified that they discussed the sale price on a basis of rents, expenses and depreciation and arrived at an approximate figure of around $20,000 or $22,500. The plaintiff testified that the sale price was an “open figure.” Plaintiff also testified as follows:

“Q. Did he stipulate definitely at any time what he authorized you to sell it for, did he make a definite .stipulation? A. No, sir, just ‘get me an offer.’

“Q. He just asked you to get him an offer? A. I discussed it and I thought I would be able to get around $20,000.00 or $22,000.00, according to the rents of that property. ’ ’

The defendant testified that he told the plaintiff that if he, defendant, could get $22,500 for the property and nothing less, he would sell it. At another time,- the defendant testified as follows:

“So Mr. Portney came over at nine or thereabouts on the morning of December 27, and I told him I would go over my records of income and expenses of the apartment, and I had come to the conclusion I would sell if I could get $22,500 but not a cent less. I impressed that on him.”

The plaintiff, after he was employed to find a purchaser, according to his testimony, showed' the ■ property to several persons, one of whom was Thomas Lon-go, who later became the purchaser. The defendant testified he was informed by the plaintiff that he had shown the apartment to Longo. However, Longo testified that the plaintiff did not take him to the apartment but that he learned of the apartment being for sale through the plaintiff. The record shows that the plaintiff negotiated with Longo, which resulted in a written offer for $19,000 being made under date of January 25, 1944. The offer was to be binding up to and including February 1, 1944. This offer was refused by the defendant. Here again the testimony is in conflict. The plaintiff testified that the defendant stated he would take the matter up with his wife. Plaintiff further testified that the prospective purchaser, Longo, stated to him that he, Longo, expected to be out of*the city for several weeks, and that for this reason he was in no hurry to get the written offer back from the defendant. Plaintiff testified that after a week’s time he went to defendant’s office, and defendant told him that he, defendant, could not accept the proposition because he did not know what to do with the money. The defendant testified that the offer was rejected immediately when it was presented to him, on the ground that he did not want to sell for $19,000. ■ The defendant denied ever having made the statement that he refused to sell because “he did not know what do do with the money.” The plaintiff testified that after the defendant rejected the offer, plaintiff contacted Longo repeatedly in an attempt to get Longo to offer a higher price for the property, and that, at different times, - Longo indicated his willingness to pay more than $19,000 for the property. The defendant admitted plaintiff told him that he, plaintiff, would try for a higher price, and that plaintiff, subsequent to the rejection, contacted defendant several times with respect to the sale of the property. The plaintiff claims defendant repeatedly told him that he, defendant, was not going to sell the property as he did not know what to do with the money. The plaintiff returned the $200 check to Longo which he had tendered at the time he made the written offer. This check was returned by the plaintiff to Longo about March 5, 1944.

The record shows that on or about the 5th or 6th day of April, 1944, Longo went to the defendant’s office for the purpose of purchasing the apartment. At that time Longo told the defendant that the plaintiff had called his attention to the property. However, the record shows that this was the first time Longo and the defendant had met face to face in regard to this transaction. At that time a conversation took place between Longo and the defendant, in which the defendant was interested in knowing whether the*plaintiff had anything to do with Longo coming to his office. Longo told the defendant that he had made an offer on the apartment, but that his check had been returned. Longo, in referring to the plaintiff, testified that “I don’t know what he has to do with it.” Longo testified that the defendant remarked:

“I don’t think'I want to sell the ápartment; I don’t know what I would do without the apartment, I don’t need the money.”

Longo testified that thereupon he told the defendant that he, Longo, did not want the apartment to make any money, but that he wanted it for the boys (meaning his sons and brothers) when they got home from the service. Thereupon the defendant stated: “If that’s the way you feel about it, I will take $22,000 for the apartment.”

Longo, thereupon, agreed to make the purchase at $22,000. On cross-examination, the defendant testified relative to the conversation which took place at the time the purchase was made, as follows:

“Q. Let me ask you when Mr. Longo came in to see you to sell the apartment, was there any conversation about a commission, possible commission, for Mr. Portney? A. Yes, I think there was. I think that I explained to him that the reason I was willing to sell for $22,000 rather than $22,500, was because there would be no commission to pay.”

After the defendant made the sale, he went to the ■ office of the plaintiff and informed the plaintiff that the apartment had been sold. The record relative to this matter is as follows:

“Q. My question is, what prompted you to do so, if Mr. Portney is out of the picture completely, why did you go and tell him? A. I didn’t have to, but there is some common decency in mankind which I try to observe.

“Q. I don’t question you. A. It was the polite and courteous thing to do. I knew he had tried to sell this apartment, and then sometime later, a matter of a number of weeks I had sold it, I thought it only fair to him to let him know so he wouldn’t make any further efforts to sell the apartment.”

The defendant contends that the contract of employment between the plaintiff and the defendant was a special contract for the sale of the defendant’s property at a definite price, and that since a sale had not been made through the efforts of the plaintiff at the price designated, the plaintiff, as a matter of law, is not entitled to recover.

Plaintiff does not rely on a special contract of employment. Plaintiff contends that he was employed generally to find a purchaser for the defendant’s property, and that the sale price was only an approximate figure or as the plaintiff testified, it was an “open figure.” The evidence relative to the terms of employment being directly in conflict, the court does not believe that the line of authorities relied upon by the defendant are applicable to the situation presented in the instant case. It was within-the province of the jury to believe either the plaintiff or the defendant on that issue.

Even if there had been a special contract of employment which was later modified by negotiation and a sale effected at a lower figure, and the evidence showed that the plaintiff was the “procuring cause” of the sale, this court is of the opinion that under the law of Ohio, the plaintiff would be entitled to recover a commission based on the actual sale price.

The defendant further contends that the plaintiff did not produce a buyer at a “fair and reasonable price,” as alleged in his amended petition. An effort was made during the trial of the case to get before the jury testimony relative to the offer of $19,000 being “fair and reasonable.” The court repeatedly sustained objections to this line of testimony, and we are of the opinion the court ruled correctly. Such testimony would have been pertinent if no sale had been effected, but since the defendant had actually consummated the sale with a purchaser who had been put in touch with the defendant by the plaintiff, the question of whether the plaintiff had produced a buyer at a “fair and reasonable” figure was no longer an issue in the case. The broker is not required to show that he has produced a buyer who is “ready, willing and able”, to buy at a figure designated by the owner if it is shown that the owner has actually consummated a sale. The two situations bear a close analogy.

In Carey, Admr., v. Conn, 107 Ohio St., 113, 140 N. E., 643, the court, on page 135, says:

“A further claim made against the petition and the evidence below is that the ‘plaintiff below, did not plead in his petition, nor did he offer upon the trial any evidence, showing that the purchaser, * * * was able by reason of financial ability, to purchase on the terms set forth in the contract, nor did he plead, or offer evidence to show that the said purchaser was ready, willing and able to purchase said property on the terms of the contract, # * V

“The evidence offered in open court showed a contract of sale * * ®. That contract of sale made immaterial the complaint made by the plaintiff in error. The financial responsibility of the prospective purchaser was open to question by Carey until the contract of sale was agreed upon and. completed. After-the contract was duly executed by the parties, such contract constituted a waiver so far as Conn was concerned in regard to the purchaser being ready, willing, and able to purchase the property. ’ ’

Consequently, this court is of the opinion that the plaintiff was-not required to show that he had produced a buyer at a “fair and reasonable” price, inasmuch as the defendant had actually consummated a sale with the purchaser produced by the plaintiff. At this point, the court might comment on the general charge in which the court charged the jury several different times relative to the plaintiff producing a buyer who is “ready, willing and able” to buy at the price stipulated by the owner. In view of the state of the record and the proposition of law laid down in Carey v. Conn, supra, we do not believe that such a charge should have been given, but such a charge, if prejudicial, worked to the prejudice of the plaintiff rather than the defendant.

The defendant contends that the trial court erred in refusing to grant a new trial for the reason that the court charged the jury that the amount of recovery, if the plaintiff had made out his ease, should be $980 together with interest at 6 per cent from April 20, 1944, which was the date of the sale. The court in its general charge, instructed the jury as follows:

“If,-after careful consideration of. the evidence, you arrive at a verdict in favor of the plaintiff, the amount of your verdict will be for the full amount as prayed for in the suit, $980 together with interest at 6% from April 20, 1944.”

Counsel now claims that under that charge the jury was not permitted to consider the value of the services of the plaintiff, based on quantum meruit. In the trial of the case, counsel for the defendant took the opposite view. He made the following statement on an objection:

“We feel he is asking for a commission on a definite percentage basis and on a particular deal. He is not asking for'‘quantum meruit,’ but what the jury might think his services were worth.”

The only evidence in this case was presented by the plaintiff when Clarence E. Rouclebush, president of the Dayton real estate board, was placed on the stand to testify as to the rate of commission paid to real estate brokers in the city of Dayton. He testified that the rate of commission was 5 per cent on the first $10,000, and 4 per cent on the balance of the purchase price. By mathematical calculation, on a sale figure of $22,000, the commission would be $980. On this phase of the case, defendant testified as follows:

“Q. Then what occurred after that? A. That was about all the conversation, there was nothing said as he alleges in his petition, what commission would be paid, of course, I know as a lawyer, of the commission, if he earned it, it would be paid to him, but nothing was said about it.”

In view of the state of the record, there was no other evidence presented for the consideration of the jury, except that given by Roudebush, all of which appears to have been accepted by both the plaintiff and the defendant as the true measure of recovery. Either the plaintiff was entitled to recover $980 together with interest from the date of sale,-or he was not entitled to recover anything. The court so instructed the jury, and we believe, on this issue, the jury , was properly instructed.

The court is of the opinion that the trial court did not commit error in refusing to render judgment for the defendant notwithstanding the verdict; neither did the trial court commit error in refusing to grant a new trial.

The fourth assignment of error is as follows:

“4'. Court below erred in granting the following instruction requested by the plaintiff-appellee: I charge you members of the jury that a broker is entitled to a commission even if he did not bring a purchaser and seller together, or even if he did not show the property to the purchaser, if the jury finds that he was in fact the procuring cause of the sale.”

A number of special charges were requested by both the plaintiff and the defendant. Some of the charges were allowed and others disallowed. The defendant contends that the special charge which was given on request of plaintiff was incomplete in that the court failed to define “procuring cause.” Counsel for the defendant relies on Presti v. Cleveland Ry. Co., 26 Ohio App., 536, 160 N. E., 508, in which it was held:

“Written instruction before argument, under Section 11447, General Code, unlike instruction in general charge at the conclusion of argument, becomes unquestioned law of case, and hence must fully state law on subject.”

And he also relies on the case of Ohliger v. City of Toledo, 20 C. C., 142, 10 C. D., 762, which holds that a special instruction should be “complete in itself.” The court did not define “procuring cause” in the general charge. In failing to define what was meant by “procuring cause” in the special charge and also in the general charge, did the trial court commit prejudicial error? Counsel'for defendant noted only a general exception to the special charge and also to the general charge. At no time did counsel for the defendant call attention to the fact that the court had omitted to give a definition of “procuring cause.” The law is well (established in Ohio that a duty rests upon counsel in ■such a situation to bring such a matter to the attention vof the court in order that the court may correct his charge or give a more complete charge. In 2 Ohio Jurisprudence, 909, the text is as follows:

“It is well settled in Ohio that if a charge is good so far as it goes, its failure to deal with a particular question arising in the case or its omission of some matters which might have been included does not constitute reversible error unless the omission was called to the attention of the court by counsel and an instruction requested, provided the jury are not misled by the instruction given. A mere general exception to the charge as given is not sufficient to call the attention of the court to such omissions or to relieve counsel of the necessity of requesting that additional instructions be given since the statute provides that exceptions of this kind relate to errors of law which exist in the charge.”

The statute referred to was Section 11561, General Code, which was repealed on January 1, 1936; however, we have Section 11560, General Code, which was amended at the same time, and reads as follows:

“An exception shall not be necessary, at any stage or step of the case or matter, to lay a foundation for review whenever a matter has been called to the attention of the court by objection, motion, or otherwise and the court has ruled thereon. Error can be predicated upon erroneous statements contained in the charge, not induced by the complaining party, without exception being taken to the charge.” (Italics ours.)

We do .not believe that the provisions of that section change the case law in Ohio with respect to the duty of counsel to call the court’s attention to any omission in a charge unless the jury was misled by the instruction given. In Columbus Ry. Co. v. Ritter, 67 Ohio St., 53, 65 N. E., 613, the syllabus is as follows:

“1. Where the charge of the court is free from error prejudicial to the party excepting thereto, but fails to cover all the questions involved in the case, such failure is not a ground for reversal, unless it was called to the attention of the court, and further-instructions requested and refused, provided the jury is not misled by the charge as given.

“2. A general exception to the charge of the court as now permitted by Section 5298, Revised Statutes, is effectual only as to errors of law existing in the charge as given, and does not bring in review on error, an omission or failure to give further proper instructions.”

In State v. McCoy, 88 Ohio St., 447, 103 N. E., 136, the court, on page 450, says:

“Measured by this rule this charge is defective in that it fails to definitely cover all the issues in the case. It is equally a settled rule of practice in this state, that where the charge as given is free from prejudicial error but fails to cover all the questions involved in the ease, such failure is not a ground for reversal unless it was called to the attention of the court and further instruction requested and refused, provided the jury is not misled by the charge as given.” (Cases cited.)

See, also, State v. Driscoll, 106 Ohio St., 33, 138 N. E., 376.

The court should have instructed the jury relative to the meaning of “procuring cause” but we are of the opinion that the failure to do so did not amount to prejudicial error.

Was the jury misled by the instruction given? We do not think so. Did the court properly state the law in its special charge? In the instant case, the court charged the jury that the plaintiff would be entitled to recover “even if he did not bring a purchaser and seller together, or even if he did not show the property to the purchaser, providing the plaintiff was the procuring cause of the sale.” In its general charge the court charged the jury as follows:

“The broker, or agent, must bring the parties together, and in order to bring them together in a transaction, their minds must meet on all material points involved in the transaction.”

In view of the evidence in this case, we are of the. opinion that what the court intended to convey to the jury, and what the jury understood, was that even though the plaintiff did not actually introduce in person the purchaser to the defendant, or even if he did not show the defendant’s apartment to the purchaser, as Longo, the purchaser, testified, nevertheless, if the jury should find that the sale was consummated through the efforts of the plaintiff, the plaintiff would be entitled to recover. We believe that the instruction was proper and is supported by the case law of Ohio. In 6 Ohio Jurisprudence, 211, Section 39, the text is as follows:

“It is a general rule of law that a broker, in order to be entitled to compensation for his efforts, must be the procuring cause of the sale.' But what amounts to the procuring cause of the sale is not readily susceptible of definition. The question is one of fact, and the courts have generally, in the individual case, determined from a careful inspection of the facts whether or not the broker was the procuring cause of the sale. For example, it is not indispensable that the purchaser should be introduced to the-owner by the broker, nor that the broker should be personally acquainted with the purchaser; but in such cases it must affirmatively appear that the purchaser was induced to apply to the owner through the means employed by the broker. And the broker may be the procuring cause, though he never saw or personally communicated with the purchaser, and never knew of the negotiations until after the transaction was consummated.”

And continuing on page 212, Section 40, the text is as follows:

“Thus, a broker, though not having an exclusive listing, is entitled to recover commission, even though he did not bring the purchaser and owner into personal contact, or show the property to the purchaser, if the jury find that he was in fact the procuring cause of the sale.”

And again on page 214, Section 42, the text is as follows:

“The question as to whether a real estate broker employed to find a buyer is entitled to his commission upon the sale of real estate when he has procured a purchaser with whom the seller enters into a contract of sale has been finally settled in Ohio to the effect that the broker has a right to commission when he has produced a purchaser with whom the seller has entered into a contract of sale.”

In Haskins v. Lewis, 11 C. C. (N. S.), 231, 20 C. D., 603, the syllabus is as follows:

“Where a broker brings a contract to his principal, which the principal declined to accept for the reason that there would be no profit on the sale after payment of a commission, but afterward the principal accepted the same contract direct from the customer, he is liable to the broker for his commission.”

In Lippert v. Page, 13 C. C. (N. S.), 105, 22 C. D., 44, the second paragraph of the syllabus is as follows:

“To entitle a real estate broker to recover commissions he must show that the purchaser was induced to apply to the owner through means employed by the broker. It is not indispensable, however, that the purchaser be introduced to the owner by the broker, or that the broker be personally acquainted with the purchaser, or that the broker at the time have knowledge of the negotiations between the owner and the purchaser. ’ ’

Applying the principle of law which seems to be fairly well established in Ohio to the facts in this case, the court is of the opinion that the trial court properly instructed the jury in the special charge. In the instant case, the sale was consummated between the owner and a purchaser who had been produced in the first instance by the plaintiff. Since the evidence showed a sale was consummated, all that the plaintiff was required to show was that he was the procuring cause of the sale, but he was not required to personally negotiate the deal between the owner and the purchaser. From the facts in this case, the jury had. the right to draw the conclusion that the plaintiff was the procuring cause of the sale.

The judgment of the trial court is affirmed.

Judgment affirmed.

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


text:
    Gaines, Appellee, v. Village of Wyoming, Appellant. Gaines, Jr., Appellee, v. Village of Wyoming, Appellant.
    (Nos. 6602 and 6603
    Decided February 4, 1946.)

      Mr. TIarry H. Balter and Mr. J. G. Williams, for appellees.

      Mr. Henry B. Street, for appellant.
   Ross, J.

These appeals upon questions of law from the judgments of the Court of Common Pleas of Hamilton county were heard and considered together.

Service was made on the petitions on April 19,1943.

The first appeal is from a judgment entered upon a verdict in favor of the father of a minor, who incurred certain expenses necessitated in furnishing medical and surgical care and hospitalization to his son, whose leg was amputated as a result of injuries alleged to have been received as a result of a nuisance permitted to exist by the defendant.

The second appeal is from a judgment entered upon a verdict in favor of such minor son, who sued through his next friend for compensation for such injuries.

The issues presented to the jury were made up, in each case, through the conflict in allegations of the third amended petition of the plaintiff, as amended during the trial, and the answer of the defendant in each case, as amended during the trial.

The cases were presented to the jury in the same trial. As the issues, except for the allocation of compensation, are identical in each case, the second case will be considered here. Conclusions as to the appeal in the latter case are dispositive of the controversy in the first case.

Prom the third amended petition, as amended at the trial, it appears that the defendant is the village of Wyoming, a municipal corporation; that it constructed, owned, operated, used and controlled a “police rifle range” for discharging pistojs and rifles at targets, on public grounds belonging to such village; that the plaintiff, a minor 15 years of age, was gathering ‘ ‘ scrap rubber ’ ’ in the vicinity of such range; that one David Bolton, “a minor of tender years, standing within said rifle range,” had in his possession a 22-caliber rifle; that, “suddenly without notice or warning to plaintiff,” Bolton discharged such rifle at a target on the range; and that defendant was negligent and had created and was maintaining a nuisance “all by reason of the following, to wit; said David Bolton had said rifle in his possession for a long time prior thereto and he, and other boys,' and police officers of the village of Wyoming, in accordance with the purpose for which defendant created said range, discharged, and were in the habit of discharging, rifles and pistols at targets on said target range, causing missiles to be projected through the air and the area to be dangerous to life and limb; children, including this plaintiff were in the habit of being, and on said day were, upon and around, and playing near, said range; defendant then, and for a long time prior thereto, knew all of the foregoing, but, notwithstanding the foregoing, defendant permitted, and took no steps and made no effort to prevent, the foregoing actions, nor to abate the aforedescribed nuisance; and as a direct and proximate result of all of which plaintiff was shot in the right thigh and right thumb, and an artery was severed and injured.”

The amended petition contains allegations of the injuries and financial loss and prays for compensation.

In the defendant’s answer, as amended at the trial, it is admitted that defendant is a municipal corporation; and that it owned “a part of and used a rifle range for target practice for the police of said village and that such rifle range is located within the corporate limits of said village.” Otherwise, such answer constituted a general denial of the allegations of the amended petition.

From the bill of exceptions, it appears that the village of Wyoming did construct and maintain a range primarily designed for the use of its police officers, and that such range was used by such police force for the purpose of increasing their proficiency in the use of firearms, which were from time to time discharged at the targets upon such range. The range was located, in an area owned by the village, and was used in various ways by the public.

It is true that a small Y-shaped parcel of ground privately owned entered slightly into the line of targets, but such fact is only incidentally involved, in the consideration of the issues presented. The range was located directly adjacent to a public baseball field, and to a space used for picnics and other recreational purposes. It was also in close proximity to a public dump located on adjacent property owned by the village. The whole constituted a municipally owned tract over which the public was permitted to go and which the public was permitted to use with little supervision or control.

In the early part of the year 1942, through co-operation with the chief of police of the village and the principal of the local high school, boys 14 years of age and older were permitted to use the range and received instructions from police officers in the use of firearms. There is evidence that the school boys were told not to use the range in the absence of a supervisor or instructor, but there is also evidence that they frequently did so; that village police and those in authority, representing the village, saw such frequent use of the range by such boys and saw them discharge firearms thereon at targets in the absence of supervisors or instructors; and that police actually stood on the range watching such unauthorized use and at no time forbade such use. It is perfectly apparent from the evidence that these children were permitted to use the range without any let, hindrance or supervision, and that the village, through its police force, had full knowledge that such range was being so used.

The range was constructed along conventional lines. The targets were so constructed that they could be lowered and raised by mechanical control at the butts or firing positions. The targets were placed in front of a backstop constructed of earth and timber. The butts or firing positions were located at 25 yards and ' 75 yards from the targets. There were five firing positions in each row of butts, the positions being approximately two feet apart. Small tables for the convenience of those firing at the targets were placed at the target end of each firing position.

On June 23, 1942, the plaintiff in company with another boy was searching in the city dump in the vicinity of the range for scrap rubber, when his attention was attracted to the discharge of firearms on the municipal range. The boys went down to the range and found a number of boys and girls on the range. There were four guns being used by the boys and girls, one of them being used by Bolton. The plaintiff took his position at the fifth butt, a firing position on the 25-yard line of butts and the fifth butt from the west, resting partly on the small table, his hand on his knees. Bolton was standing at the second butt from the west on the same line of butts. Plaintiff was almost directly east of Bolton. The evidence, however, indicates that Bolton was somewhat back of the table in front of the butt and this would place plaintiff slightly forward to Bolton’s right — there being two butts intervening between them (butts 3 and 4). This distance is placed at approximately six or eight feet. Just before the arrival of plaintiff upon the range, the boys and girls had been shooting at tin cans. There is some evidence that the gun Bolton was using was defective, permitting its unintentional discharge. While plaintiff and Bolton were in the respective positions just mentioned, Bolton turned to his right, swinging the gun with his body and just as the gun pointed at plaintiff it was discharged. The bullet passed through plaintiff’s right thumb and right leg. The injury caused the ultimate amputation of his leg.

As previously indicated, reference is made only to the action of the minor plaintiff for compensation, the issues except as noted before being identical.

The action is grounded on “qualified nuisance” involving the issue of negligence connected with the maintenance of the nuisance. This issue is made by the pleadings, was considered in the general and special charges and has been presented to this court as an alternative ground justifying the verdict. It is apparent, however, that the plaintiff sought also to predicate liability during the trial upon the basis of absolute nuisance. Certainly, in his argument and briefs in this court, he brings this basis of liability before the court. In any event, if the allegations of the pleadings and the evidence, properly admitted, justified recovery upon the existence of either species of nuisance, then the verdict in the plaintiff’s favor and the judgment thereon must be sustained, even though a heavier burden was placed upon the plaintiff than was justified by the pleadings, evidence and the law applicable.

This court is, therefore, required to examine the pleadings, and evidence to discover not only whether the verdict could be sustained by proof of qualified nuisance, but whether the existence of an absolute nuisance justified recovery. Of course in each instance the issue of proximate cause exists. Whether a nuisance absolute or qualified existed, such nuisance must have been the proximate cause of the plaintiff’s injury in order to sustain recovery.

In Taylor v. City of Cincinnati, 143 Ohio St., 426, 55 N. E. (2d), 724, 155 A. L. R., 44, the Supreme Court has drawn a distinction between absolute and qualified nuisance. The portion of the definition applicable to the facts in the instant case, germane to the instant question, is that an “absolute nuisance, for which strict liability or liability without fault is imposed by law, may be defined as * * * the unlawfully doing of anything or the permitting of anything under one’s control or direction to be done, which results in injury to another.” This definition as it applies to such nuisances involves private individuals as well as municipal corporations.

As will appear hereinafter, there are many considerations affecting municipal corporations which have no application in the case of private persons.

The contention of the plaintiff as far as it concerns this first problem is that because the village created, established and maintained a rifle range, primarily designed for the use of the police force, and permitted its promiscuous use for target practice by children, unattended and without supervision, it created and permitted to exist an absolute nuisance which was the direct and proximate cause of the plaintiff’s injuries.

The basis for such contention is that the village in so doing violated the provisions of Section 12635, General Code, which reads:

“Whoever runs a horse, or shoots or fires a gun or pistol at a target within the limits of a municipal corporation, shall be fined not less than five dollars nor more than fifty dollars.”

It is true that in the operation, control, and use of its police force the village acted in a governmental capacity. City of Wooster v. Arbenz, 116 Ohio St., 281, 284, 156 N. E., 210, 52 A. L. R., 518; Aldrich v. City of Youngstown, 106 Ohio St., 342, 344, 140 N. E., 164, 27 A. L. R., 1497. And it is also true that in the management and control of public grounds, the village also acted in a governmental capacity. Taylor v. City of Cincinnati, suyra.

Ordinarily, municipalities are not liable in damages for injuries received due to the carrying on of.governmental functions. Tolliver v. City of Newark, 145 Ohio St., 517, 62 N. E. (2d), 357; City of Wooster v. Arbenz, supra, at page 284.

However, such freedom from liability is dependent upon the lawful exercise of such governmental function, the municipality being amenable to general laws of the state applicable to the particular situation involved. City of Cincinnati v. Gamble, 138 Ohio St., 220, 34 N. E. (2d), 226; State, ex. rel. Strain, v. Houston, 138 Ohio St., 203, 210, 34 N. E. (2d), 219; Schneiderman v. Sesanstein, 121 Ohio St., 80, 83, 84, 167 N. E., 158, 64 A. L. R., 981.

If the village, therefore, in so creating and maintaining the rifle range violated the general laws' of the state, under the provisions of Section 3714, General Code, it would be subject to “strict liability” for the proximate results of such violation, the condition so created amounting to an absolute nuisance.

Section 3714, General Code, provides:

“Municipal corporations shall have special power to regulate the use of the streets, to be exercised in the manner provided by law. The council shall have the care, supervision and control of public highways, streets, avenues, alleys, sidewalks, public grounds, bridges, acqueducts, and viaducts, within the corporation, and shall cause them to be kept open, in repair, and free from nuisance.”

Whether the village would have been so liable if the' plaintiff had incurred injury when the range was in operation by the police of the village and during actual target practice by police officers is a question not here presented. Nor is the question here presented as to the liability of the village if the plaintiff had received his injuries while the police were directly supervising and instructing high school students on the range in the use of firearms which they were discharging at targets.

The maintenance of the rifle range' as snch, .when not in use, could not be considered to be a violation by the village of Section 12635, General Code, and the range did not in such static condition constitute an absolute nuisance, as hereinbefore described.

There is no specific statute forbidding the use of public ground by placing thereon targets and fixed positions from which objects could be discharged at such targets. No one would assert that such facilities might not be properly used for archery practice, even though they might not be of a design and character commonly used. The fact that the village purposed to use the range for revolver and rifle practice did not cause the range to be solely and completely impressed with any possibly unlawful character.

Nor does the mere fact that it was placed in environment which would bring members of the public using adjacent recreational facilities on or near it justify the conclusion that it was per se either an absolute or qualified nuisance, when it was not being used by the police or by persons directed and supervised by village authority. That it might be improperly used-bears only on the question of negligence, not upon the existence of any species of nuisance. Such failure to foresee injury does not establish nuisance.

But, it is asserted, that, by permitting its use by children, the village permitted such an absolute nuisance to exist. This contention also must fail, for it is stated in the opinion in Tolliver v. City of Newark, supra, at page 523:

“ ‘The manner in which a highway of a city is used is a different thing from its quality and condition as a street. The construction and maintenance of a street in a safe condition for travel is a corporate duty, and for a breach of such duty an action will lie; but making and enforcing ordinances regulating the use of the streets brings into exercise governmental, and not corporate, powers, and the authorities are well agreed that for a failure to exercise legislative, judicial, or executive powers of government, there is no liability.’

“That text is supported by many cited authorities, to a few of which attention will be directed.”

If the village failed to properly enclose the range to exclude the general public or failed to properly guard the same by police, a situation involving mere neglect, unconnected with an established nuisance, is involved, which neglect, if any, is not the subject of any direct .and specific prohibition in general law. Such being the case, the element of absolute nuisance involving “strict liability” is excluded from this case by both the facts and law.

The area occupied by the target range was upon public ground of the village, as that term is used in Section 3714, General Code. City of Cleveland v. Ferrando, 114 Ohio St., 207, 150 N. E., 747. Streets and public ground are by this section placed in the same category. The duty of the village as far as nuisance is concerned is the same as to each. City of Cleveland v. Ferrando, supra, 210.

In Tolliver v. City of Newark, supra, it is stated in the fourth paragraph of the syllabus:

“By virtue of the provisions of Section 3714, General Code, the maintenance of municipal streets in a safe condition is made a corporate duty, and for a breach thereof the municipality is liable.”

See, also, City of Cleveland v. Ferrando, supra, where at page 210 of the opinion it is stated:

“Section 3714, General Code, imposes upon municipalities the duty to keep the public grounds free from nuisance. Municipally owned and controlled parks, established and maintained for and open to the general public, and to which the general public are invited to come, are, in the fullest sense, public grounds, and come within the provisions of that section of the General Code, and the liability of the municipality for failure to discharge the duty thereby imposed is the same as its liability in that respect with reference to its streets, alleys, and sidewalks.”

The application of the principles of liability to the control of such public ground by the village involves the element of negligence connected with nuisance. Taylor v. City of Cincinnati, supra.

As stated before, the target range was not in its static condition, a nuisance per se. It was not out of repair and contained no pitfalls or traps into which an unsuspecting member of the public using the public ground might fall and be injured.

No unexploded bomb was permitted to exist. The only possible charge is that the village failed to prevent the unsupervised use of the range by children. What difference is there in such situation from one in which the village would fail to enforce speed laws at a school crossing within the corporate limits? A child might lose its life by reason of such failure. The authorities noted clearly show that such failure to enforce the law, no matter how reprehensible, would not create liability in the village. The failure to prevent the discharge of firearms upon the target range was no greater neglect in degree thán the failure to prevent such discharge of firearms in any other portion of the village. If the range in itself constituted no nuisance, then no nuisance existed simply because the village failed to enforce the provisions of Section 12635, General Code, thereon.

The error in the previous consideration of this case lies in confusing the actual use of the range by the village police in target practice and the unsupervised use of it by the children.

In the first instance, the village would be affirmatively engaged in carrying on a proceeding which may or may not be considered violative of the provisions of Section 12635, General Code. In the latter instance, the village simply failed to enforce the provisions of a general law, which failure differs in no way from any other neglect to enforce laws forbidding the doing of certain acts by private citizens and making the doing of same crimes. In Western College v. City of Cleveland, 12 Ohio St., 375, it is stated in the syllabus:

‘ ‘ The act to incorporate the city of Cleveland, passed in 1836, provided, among other things, in reference to the city council — ‘it shall be their duty to regulate the police of the city, preserve the peace, prevent disturbances and disorderly assemblages.’ Held, that the duty intended was that properly appertaining to an administrative and legislative body, acting in the government of a city — the making regulations, by-laws and ordinances for the purposes specified, to-be enforced by the appointment of officers; and that neither on general principles, nor from the effect of that enactment, is the city -of -Cleveland responsible for the destruction of property by a riotous assemblage of persons, or for the neglect of the officers in not preserving the peace, and preventing such destruction.”

That case was cited with approval in Aldrich v. City of Youngstown, supra, at page 344.

Obviously, also, if, as was the case here, there was no nuisance, there could be no neglect to remove same or prevent injury therefrom.

It thus appears that this action, as the facts in- the evidence are developed, resolves itself into a mere suit to recover damages for injuries received by the plaintiff, as a proximate result of the failure of the village to enforce a penal statute against persons using the public grounds of the village, in other words, a simple action of negligence, unconnected with nuisance and not involving the violation of a special mandate contained in the general law. ■

There can be no action against the village based upon - mere neglect in connection with the maintenance and control of public ground, unconnected with nuisance, except as is provided in Section 3714, General Code. Such neglect so unconnected with nuisance would be limited to a failure to keep such public grounds in repair. No claim is made upon that ground. Mere negligence cannot otherwise constitute a nuisance. Taylor v. Cincinnati, supra.

For the reasons given, the judgments of the Court of Common Pleas are reversed, and judgment in each case may be here rendered for the defendant.

Judgments reversed.

ITildebrant, P. J., and Ross, J., concur in the syllabus, opinion and judgment.

Matthews, J., concurs in the syllabus and judgment.


author: By the Court.

text:
    Shedenhelm, Appellee, v. Myers, Appellant.

      (No. 301
    Decided August 7, 1944.)

      Messrs. Carpenter & Carpenter and Mes.srs. Spitler $ Flynn, for appellee.

      Messrs. Schroth (& Schroth and Messrs. Rail & Naus, for appellant.'
   By the Court.

It having been heretofore determined by this court (Shedenhelm v. Myers, 76 Ohio App., 28) that this cause is not a chancery cause and, therefore, may not be retried upon the facts, it is submitted and heard as an appeal upon questions of law.

The appeal is from a judgment of the Court of Common Pleas of Seneca county in an action wherein Adella M. Shedenhelm, the appellee herein, was plaintiff, and Ray C. Myers, the appellant herein, was defendant.

The judgment appealed from is in the words and figures following, to wit:

“It is therefore considered and adjudged by the court that said Adella M. Shedenhelm recover from the said Ray Myers the said sum of thirteen thousand two hundred and twenty-five dollars ($13,225), and that the said Ray Myers, his agents and attorneys, produce for destruction and deliver to the clerk of the court all original writings and copies thereof, photostatic or otherwise, described as confessions of the plaintiff, and the said clerk is hereby ordered to destroy the same, and the defendant, his agents and attorneys are hereby perpetually enjoined from exhibiting either publicly or privately, said confessions or copies thereof, and it is further considered that the defendant, Ray Myers, pay the costs of this proceeding; for all of which execution is awarded, to all of which the defendant excepts.

‘ ‘ This cause coming on further to he heard on the motion of the defendant to set aside the foregoing judgment and for a new trial, the court on consideration, .overrules the same, to which ruling defendant excepts, and bond for appeal therein is fixed at the sum of one thousand dollars ($1,000).”

This cause was numbered 24622 in the Common Pleas Court. In cause number 24168 in the Common Pleas Court, in which the plaintiff herein was plaintiff and the defendant herein was defendant, the plaintiff recovered a judgment for divorce, in which a written agreement, entered into between the parties prior to the granting oí the divorce for the settlement of their property rights, was approved by the court and judgment was entered granting plaintiff a divorce and fixing the property rights of the parties as prescribed in such written agreement.

This cause, which was numbered 24622 in the Common Pleas Court, was instituted by the plaintiff as a separate action to set aside that part of the judgment in cause number 24168 approving the written agreement of the parties as to the settlement of their property rights and decreeing the property rights of the parties in accordance therewith, and for the granting to the plaintiff, upon the setting aside of such judgment, of fair and reasonable alimony from the property of the defendant in lieu of the provisions made in settlement of her property rights under the written agreement of settlement and the decree approving the same, and for the crediting of the amounts received by her under the agreement and decree upon the amount that may be decreed to her from the property of the defendant as her fair and reasonable alimony.

The action is predicated upon the alleged fraud of the defendant in falsely representing to the plaintiff that the property owned by him was considerably less in value than it actually was and that his indebtedness was considerably greater than it actually was, thereby inducing plaintiff to enter into the written agreement of settlement, and to procure the approval of the same and the decree fixing property rights in accordance therewith by the court in the divorce action.

As shown by the allegations of the pleadings and the relief sought, any right of relief to which plaintiff may be entitled is based on the provisions of Section 11631 et seq., General Code, and particularly on subdivision 4 of Section 11631, General Code, prescribing fraud by the successful party in obtaining a judgment or order as ground for the vacation or modification of such judgment or order.

The bill of exceptions discloses that there is substantial and credible evidence tending to prove the allegations of plaintiff’s petition.

The defendant has assigned error in a number of particulars, but under the view we take of this' case, it is necessary to consider only one assignment of error, and that is that the judgment is contrary to law, as consideration of this error disposes of the whole case. • 1

Under the provisions of Section 11635, General Code, the proceedings to vacate the judgment or order on the ground mentioned in subdivision 4 of Section 11631, General Code, shall be by petition, verified by affidavit, setting forth the judgment or order, the grounds to vacate and modify it, and, if the party applying was defendant, the defense to the action! A summons shall issue on such petition and be served as in the commencement of an action. Under the provisions of Section 11636, General Code, the court must try and decide upon the grounds to vacate or modify a judgment or order before trying or deciding upon the validity of the defense or cause of‘action; and under the provisions of Section 11637, General Code, a judgment shall not be vacated on motion or petition until it is adjudged that there is, a valid defense to the action in which the judgment was rendered; or, if the plaintiff seeks its vacation, that there is a valid cause of action and, when a judgment is modified, all liens and securities obtained under it shall be preserved to the modified judgment.

In the case of Braden v. Hoffman, 46 Ohio St., 639, 22 N. E., 930, it is held that in proceedings to vacate a judgment brought by a defendant pursuant to statutory provisions similar to the provisions of Section 11631 et seq., General Code, it is error to vacate the judgment before it has been adjudged that there is a valid defense to the action; and if, on error, such adjudication is not shown by the record, it will not be presumed.

A corollary of this holding is that it is error in a similar 'proceeding brought by a plaintiff, such as the instant proceeding, to vacate the judgment before it has been adjudged that there is a valid cause of action; and if, on an appeal on questions of law, such adjudication is not shown of record it will not be presumed.

An inspection from the judgment appealed from in this case reveals that it does not even purport to decide that there is ground for the vacation or modification of the judgment in cause number 24168, which the petition seeks to have vacated or modified, and does not purport to adjudicate that plaintiff has a valid cause of action.

As shown by the record in this ease the judgment in cause number 24168 stands unvacated or modified, in full force and effect, without any adjudication that any ground exists for its vacation or.modification and without any adjudication that plaintiff has a valid cause of action.

Consequently, if this action had been properly instituted in conformity with the provisions of Section 11631 et seq., General Code, the judgment would have to be reversed for its failure to adjudicate that a ground for vacation existed and that plaintiff had a valid cause of action, and for its further failure to prescribe -that the judgment in cause number 24168 is vacated.

Hoivever, there is another cogent reason why the judgment must be reversed. In the case of Taylor, Assignee, v. Fitch, 12 Ohio St., 169, it is definitely held that a proceeding to vacate a judgment rendered by a Common Pleas Court at a former term, pursuant to statutory provisions similar to the provisions of Section 11631 et seq., General Code, is not of itself a civil action, but is a special proceeding in an action after judgment, and subject to review only on error, and the proceedings to vacate the judgment must be included in the record of the original case; that is, that the petition to vacate the judgment must be filed in the original case and all'proceedings had thereon must be made a part of the record in the original case.

The reasoning upon which the holding in the Taylor case, supra, is based, as shown by the opinion in the case at pages 172 and 173, is irrefutable.

That holding has never been overruled and is approved and followed in numerous cases, typical of which are the cases of Coates v. Chillicothe Branch State Bank of Ohio, 23 Ohio St., 415, at pages 431 and 432, and Braden v. Hoffman, supra, at pages 640 and 641. See, also, 23 Ohio Jurisprudence, 1154, Judgments, Section 1023.

It is also approved and followed in the case of Bever v. Beardmore, 40 Ohio St., 70, at page 78, where it is further held that such proceeding is in the nature of an application for a new trial. That holding is approved and followed in the case of Beck v. Beck, 48 Ohio App., 105, 192 N. E., 791.

There is only one reported decision in which an attempt is made to distinguish the holding by limiting its application, and this is in the case of Folliette v. Brett, 16 C. C. (N. S.), 452, 31 C. D., 624. In that decision .it is held that the failure to file such proceeding in the original case does not constitute error requiring the reversal of the judgment rendered in such proceeding, because the judgment in the proceeding under consideration simply required the original action to be retried and the special proceeding was thereby ended without possibility of further judgment therein, thus differing from the instant case in that in it both the original judgment and the judgment in the special proceeding both stand of record.

Even as applied to the state of facts embodied in the case, we are of'the opinion that that decision, for the reasons hereinafter mentioned, was erroneous in not holding that the failure to file the petition to vacate in the case in which the judgment sought to be reversed was rendered constituted reversible error.

All the holdings above mentioned, other than the decision in the case last discussed, which, as above mentioned, we consider erroneous, clearly show that it was the legislative intent, in the enactment of the statutory provisions in question, that a petition for the vacation or modification of a judgment pursuant to such provisions, being in the nature of an application for a new trial, should be filed in the action in which the judgment sought to be vacated or modified is rendered.

The proceedings prescribed by such statutory provisions were unknown to the common law and, being novel in character, strict compliance with such provisions is essential to the validity of a proceeding for vacation or modification of a judgment. Rabb, Admr., v. Board of Commrs., 36 Ohio App., 481, 173 N. E., 255; 2 Lewis’ Sutherland Statutory Construction (2 Ed.), 643, 644, 645, Section 336.

Being in the nature of an ^application for a new trial, it is obvious that the petition for the vacation or modification of a judgment is wholly ineffective to invoke the jurisdiction of the court unless it is filed in the action in which the judgment was rendered.

As in the instant proceeding the petition for modification was not filed in the case in which the judgment sought to be modified was rendered, it was ineffective to invoke the jurisdiction of the court and the •court, on such petition filed as it was filed, was without jurisdiction of the proceeding attempted to be commenced thereby.

For the reasons hereinbefore mentioned, the judgment of the Common Pleas Court is reversed, and for want of jurisdiction of the trial court, of the proceeding, final judgment is rendered in favor of the defendant, dismissing plaintiff’s petition at her costs. But as the plaintiff has failed otherwise than on the merits, she may, pursuant to the provisions of Section 11233, General Code, file a new petition for modification of the judgment in the original cause in which the judgment sought to be modified was rendered, notwithstanding the time limit for the commencement of such action under the provisions of Section 11640, General Code, has expired.

Judgment reversed.

Guernsey, P. J., Jackson and Middleton, JJ., concur.


text:
    Gerstenzang, Appellant, v. Industrial Commission of Ohio, Appellee.
    (No. 6586
    Decided February 4, 1946.)

      Mr. B. Wm. Eeidkamp, for appellant.

      Mr. Edward A. Schott, for appellee.
   By the Court.

This is an appeal on questions of law from a judgment of the Court of Common Pleas of Hamilton county, denying the right of plaintiff to participate in the state insurance fund under the Workmen’s Compensation Act. The case was tried to the court without a jury.

The plaintiff claims the court erred in its judgment because: (1) The plaintiff was an employee of the Meier’s Wine Cellars, Inc., which company was a complying employer under the Ohio Workmen’s Compensation Act; (2') while such employee, during the course of his employment and because of same, he was injured in New York city; (3) his application for compensation to the Industrial Commission of Ohio was denied upon rehearing for the reason that at the time he received his injury he was not an employee of the Meier’s Wine Cellars, Inc., and his duties, if he was so employed, were to be performed entirely outside the state of Ohio; and (4) the contract of employment was entered into in Hamilton county, Ohio.

The defendant answered, setting up as its first defense a general denial, and as a second defense that all duties of the plaintiff to Meier’s Wine Cellars, Inc., were to be performed outside the state of Ohio.

From the transcript of the record before the Industrial Commission on rehearing, incorporated in a bill of exceptions, it appears that the plaintiff filed suit against the Meier’s Wine Cellars, Inc., in New York, and that such suit was dismissed after a settlement had been entered into between the parties, through which plaintiff received $242 and his attorney $35. Such settlement of the action appears endorsed upon the check for $242 and reads:

‘ ‘ This check together with a check in the sum of $35 is in full settlement of the case of G-erstenzang v. Meier’s Wine Cellars, Inc., and any other claims that payee has against Meier’s Wine Cellars, Inc. Said $35 is made payable to Abraham Markhoff. Louis R. G-erstenzang. ’ ’

Plaintiff claims that this settlement can not be made available to the defendant in this action because estoppel, payment, and accord and satisfaction were not pleaded by the defendant.

Reference to the transcript shows that at the trial in the Court of Common Pleas, no objection was made to the introduction of such evidence.

In Harris v. Wallace Mfg. Co., 84 Ohio St., 104, 95 N. E., 559, it is stated at page 108 of the opinion:

“But since in this state of the pleadings the evidence to establish an estoppel was admitted without objection, is it not entitled to be considered, notwithstanding the absence of such allegations as would make it competent?”

See, also, 31 Ohio Jurisprudence, 998, Section 368.

The issue of estoppel was therefore-before the trial court.

The syllabus in Industrial Commission v. Broskey, 128 Ohio St., 372, 191 N. E., 456, is:

“1. Additional workmen’s compensation will not be awarded a claimant who after receiving an award, sued his contributing employer for damages for the identical personal injuries for which he claims further compensation, and by way of settlement of that suit received a substantial sum which he acknowledged to be satisfactory and in consideration of which he executed to his employer a complete release against all past, present and future claims.

“2. The fact that such settlement was made under a mistake of law avails such claimant nothing, especially when the mistake of law, if any, was induced by such claimant.”

It must be presumed that the trial court found the amount received to be a substantial amount and a satisfactory settlement.

No reason appears foi disturbing such conclusion and the questions of where the contract was made and the relationship of plaintiff to the Meier’s Wine Cellars, Inc., become unimportant.

The judgment is affirmed.

Judgment affirmed.

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


text:
    The State of Ohio, Appellee, v. McDonald, Appellant.
    (No. 6600
    Decided February 11, 1946.)

      Mr. Robert J. Paul, Mr. Harry Meier and Mr. Ralph E. Gors, for appellee.

      Mr. Wm. F. Hopkins, for appellant.
   By the Court.

Defendant, while seated in a parked automobile on a downtown street corner of Cincinnati, was arrested, charged, under an ordinance of the city of Cincinnati, with being a known thief, and convicted on that charge in the Municipal Court of Cincinnati.

The sole evidence introduced was a criminal record, showing a robbery conviction in 1931, convictions of loitering in 1929, probation on a charge of carrying concealed weapons in 1930, consorting in 1943, and a conviction in federal court for sending poison through the mails in 1943.

From the above record it .appears that there is no substantial evidence of thievery in recent years, which it is the object of the ordinance to suppress.

Accordingly, the judgment is reversed and the cause remanded to the Municipal Court, with instructions to discharge the defendant.

Judgment reversed.

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