author: Jackson, J.

text:
    Muntzinger, Appellant, v. Muntzinger, Appellee.

      (No. 159
    Decided November 4, 1950.)

      Messrs. Drury S Koch, for appellant.

      Mr. C. B. Thornton, for appellee.
   Jackson, J.

This is an appeal on questions of law. The issues which were before the trial court are set forth in an amended petition and an amended answer.

The amended petition asks that the plaintiff be granted the custody of the minor child of the parties, together with an orcier for his support, that she be granted a divorce and permanent alimony from the defendant, and for all proper relief.

The amended answer prays that the amended petition of the plaintiff be dismissed at the costs of plaihtiff.

One child, Michael David Muntzinger, the only living issue of the marriage, wa$ born on May 22,1947, and at the present time is slightly over three years and five months, of age.

■ The trial court dismissed the amended petition at plaintiff’s costs, finding that the allegations and the evidence were insufficient for a divorce, and made no finding with reference to the custody or support of the child, or for permanent alimony.

The record is challenged by the plaintiff-appellant in five assignments of error, the first three and the fifth of which are that the judgment of the trial court is contrary to law; that the judgment of the trial court is not sustained by the evidence and is manifestly against the weight of the evidence; that the trial court erred in the refusal to grant the plaintiff a divorce ; and that the trial court erred in finding that the plaintiff left the defendant and thus is barred from claiming failure to support as grounds for a divorce.

“Under'the modern law of Ohio, there is no doubt that an order or judgment granting or refusing a divorce, or relating to alimony or the award of custody of a minor child is appealable on law.” 2 Ohio Jurisprudence, 236, Section 116.

Therefore, it is apparent that the Court of Appeals, under Section 6, Article IY of the Ohio Constitution, has jurisdiction to determine the instant appeal.

The general rules governing reviewing courts in reviewing judgments and decrees on the weight of the evidence govern in divorce cases. 14 Ohio Jurisprudence, 452, Section 62.

The judgment will not be disturbed unless it is made to appear manifestly and clearly that the verdict or finding is unsupported by the evidence or is against the weight of the evidence. Stated in other language, no reversal can be had on the ground that the judgment is against the weight of the evidence except as a matter of law and then only if the reviewing court is fully and clearly satisfied from an examination of all the evidence and of the whole record that the judgment is in fact unsupported by or is against the manifest weight of the evidence.

Sufficient substantial and credible evidence was received by the trial court to warrant the denial of a divorce.

Therefore, this court will not disturb the judgment of the lower court on the grounds set forth in assignments of error Nos. one, two, three, and five, which assignments of error are overruled.

Assignment of error No. four asserts that the trial court erred in refusing to provide for the custody and support of the minor child.

Since no order was made with relation to the prayer of the petition asking for such an order, we are unable to determine from the record whether the court considered this matter or followed the rule set forth in Gatton v. Gatton, 41 Ohio App., 397, 179 N. E., 745, which case holds, as shown by the second paragraph of the syllabus, that any judgment awarding custody of a minor child to a wife after refusing her a divorce is void.

In the case of South v. South, 5 Ohio Law Abs., 594, the Court of Appeals of the First Appellate District found the law to be the exact opposite of the law of the Gatton case. In the South case it was held that the court has jurisdiction to award custody of minor children even though a divorce is not granted.

In view of these conflicts we shall discuss assignment of error No. four.

Section 8032, General Code, states that when a husband and wife are living separate and apart or are divorced and the question as to the care, custody, and control of the offspring of their marriage is brought before a court of competent jurisdiction they shall stand upon an equality as to such care, custody, and control.

In the instant case the evidence is clear that the parties are living separate and apart and have been so living for some time prior to the divorce proceeding, and.that the possibility of reconciliation is so remote as not to be worthy of consideration.

Section 8033, General Code, provides that the court shall determine, after hearing the testimony, which of the parents shall have the care, custody, and control of such offspring and what will be to the best interest of the child in such regard, and that when the court finds neither parent is a suitable person to have the custody of the child, the court, under the proper procedure, can refer the matter to the Juvenile Court and thereupon the Juvenile Court shall have exclusive jurisdiction respecting such child.

Thus it would appear that the Court of Common Pleas has complete jurisdiction to determine the matter unless that court refers it, under the proper procedure, to the Juvenile Court.

In the instant case no reference was made to the Juvenile Court, under Sections 8034 and 8034-1, General Code.

Section 7997, General Code, provides that it is the duty of the husband to support his wife and children if he is able to do so out of his property or his labor.

Section 8004, General Code, provides that if a wife abandons her husband, unless she is justified by his misconduct, he is not liable for her support.

However, the lower court found from the evidence that the wife'was not justified in leaving her husband and therefore no order was proper for her support.

There is only one matter remaining, and that is the care, custody, and control of the minor child and its support.

In our opinion, the court committed reversible error when it did not determine specifically as to the care, custody, and control of the child and by whom contributions, if any, are to be made for the support of such child.

Therefore, the judgment of the court below is affirmed as to the refusal to grant a divorce, and the cause is remanded for the purpose only of having the court consider the single question of care, custody, control, and support of the minor child of the parties.

Judgment accordingly.

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


source: Caselaw Access Project

author: Montgomery, J.

license: Public Domain

text:
    The State of Ohio, Appellee, v. Clare, Appellant.
    (No. 2442
    Decided April 27, 1951.)

      Mr. John Rossetti, prosecuting attorney, and Mr. Foster J. Flucline, for appellee.

      Messrs. Amerman, Jones <& Morgan and Mr. D. Q.. Gennett, for appellant.
   Montgomery, J.

The appellant was convicted in the Court of Common Pleas of Stark County of the crime of murder in the second degree and was sentenced accordingly. This appeal ensued.

We have read the record in this case and considered all the alleged errors. With one exception, with which we will deal more at length, we find nothing prejudicially erroneous. It certainly does not affirmatively appear from the record that the accused was prejudiced by the admission or rejection of any evidence offered against or for him, or that he was prejudiced by any instruction to the jury.

Consequently, under Section 13449-5, General Code, there should not and will not be a reversal on any of these claimed grounds.

The serious question involved is the actual conviction of the accused of murder in the second degree. This offense is defined by Section 12403, General Code, and it is essential to a conviction thereunder that there be evidence beyond a reasonable doubt that the accused purposely and maliciously killed another. From this record there is not sufficient evidence of either purpose or malice, and the conviction on that charge cannot be sustained. However, as we view it, there was adequate evidence of the unlawful killing, and that the accused was guilty, under Section 12404, General Code, of manslaughter in the first degree.

Accordingly, we act in accordance with subsection 4 of Section' 13449-1, General Code, which reads:

“4. That the verdict is not sustained by sufficient evidence, or is contrary to law; but if the evidence shows the defendant to be not guilty of the degree of crime for which he was convicted, but guilty of a lebsev degree thereof, or of a lesser crime included therein, the court may modify the verdict or finding accordingly, without granting or ordering a new trial, and pass sentence on such verdict or finding as modified, and this power shall extend to any court to which the cause may be taken by proceedings in error * *

It is, therefore, the judgment of this court that the judgment of the Court of Common Pleas be modified accordingly, without the granting or ordering of a new trial. It is ordered further that this cause be remanded to the Court of Common Pleas, under the provisions of Section 13459-6, General Code, with instructions to carry this order of modification into effect and impose a sentence such as is authorized by Section 12404, General Code,

Judgment accordingly.

McClintock, P. J., and Putnam, J., concur.


author: Hildebrant, P. J.

text:
    Minnis et al., Appellees, v. Hamilton County Board of Zoning Appeals, Appellant.
    (No. 7450
    Decided June 25, 1951.)

      Messrs. Osborne, Chaoksfield & Osborne, for appellees.

      Mr. C. Watson Hover, Mr. William J. Schmid, and Mr. Carl B. Rubin, for appellant.
   Hildebrant, P. J.

The Common Pleas Court reversed the decision of the Hamilton county zoning board refusing an extension of a nonconforming use in county territory. The Hamilton county zoning board instituted this appeal from that order of reversal.

This court, sua sponte, questions the capacity of the appellant to institute the appeal.

Section 3180-1 et seq., General Code, is the enabling act providing for county zoning, and establishing and fixing the powers and duties of county boards of zoning appeals.

Section 3180-14, General Code, provides in part:

“Any party adversely affected by a decision of a county board of zoning appeals may appeal to the Court of Common Pleas of such county on the ground that such decision was unreasonable or unlawful. The court may affirm, reverse, vacate or modify the decision complained of in the appeal.”

Nowhere in the enabling act is an -appeal by the county zoning board provided for. There is no common-law right to appeal, and in the case of administrative boards and officers no appeal as of right exists unless granted by statute.

In 8 Ohio Jurisprudence, 535, Section 403, it is' stated:

“In Ohio, the right of appeal is conferred in part by constitutional provision, in part by statute. A right of appeal exists only by statute or constitutional provision; it was unknown to the common law. It is well settled that a party to a suit has no vested right to an appeal, for writ of error from one court to another.”

In Bartol v. Eckert, 50 Ohio St., 31, 42, 33 N. E., 294, it is stated:

“It is well settled, that a party to a suit has no vested right to an appeal, or writ of error from one court to another. In Lafferty v. Shinn, 38 Ohio St., 46, it is stated that , in the right to appeal to the courts, there is not involved a further right to appeal from the judgment of the court to which such application for redress is made; on the contrary, that a right to appeal from such judgment exists only when given by statute; that such right to appeal, when so given, may be taken away by statute, even as to cases pending on appeal; and that the same thing is true with us as to proceedings in error.”

In an annotation to Board of Zoning Appeals v. McKinney (174 Md., 551, 199 A., 540), in 117 A. L. R., 207, under the heading, “Right of public officer or board to appeal from a judicial decision affecting his or its order or decision,” at page 218, it is stated:

“It has been held that a zoning board has no right to appeal from a judgment reversing its order granting a permit. In Miles v. McKinney (Md.), (reported herewith) ante, 207, ivhere the order of a board of zoning appeals granting a permit had been reversed by the court, an appeal from the decision of the court taken by such board Avas dismissed, since it was not a party to the proceeding, had no interest in it different from that Avhich any judicial or quasi judicial agency would have had, that is, to decide the cases coming before it fairly and impartially, was in no sense aggrieved by the decision of the board, and had no statu • tory right of appeal, and, therefore, had no poAver to take the appeal.

“And in Lansdowne Bd. of Adjustment’s Appeal (1934), 313 Pa., 523, 170 A., 867, an appeal by a board of adjustment from a court order reversing its order denying a special exception of property from zoning restrictions was quashed, the court saying that it was clear that the board of adjustment, as a board, had not been, and could not be, injuriously affected by the order, and hence that it had no standing to appeal. ’5

It is clear, as stated in the Pennsylvania case cited in the foregoing annotation, that the Hamilton county zoning board has not been and could not be injuriously affected by the order of the Common Pleas Court. The appeal is, therefore, dismissed.

Appeal dismissed.

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


author: Carpenter, J.

text:
    Boelter, Appellant, v. Mown, Appellee.
    (No. 4501
    Decided January 29, 1951.)

      Messrs. Lamb, Goerlich <& Mach, for appellant.

      Mr. Dan H. McCullough, for appellee.
   Carpenter, J.

In this action for damages for personal injuries sustained from an alleged assault and battery, the jury returned a verdict for the plaintiff. A motion for judgment notwithstanding the verdict was overruled. A motion for a new trial filed by defendant “upon the ground that the judgment herein is not supported by sufficient evidence’’ was granted.

Prom that order this appeal on questions of law was taken.

The only error assigned is that the court, in making such order, abused its discretion. Citing Steiner v. Custer, 137 Ohio St., 448, 31 N. E. (2d), 855, the plaintiff concedes that such order is not error unless it clearly appears that in making it the court abused its discretion. The second paragraph of the syllabus of that case is as follows:

“The meaning of the term ‘abuse of discretion’ in relation to the granting of a motion for a new triai connotes more than an error of law or of judgment; it implies an unreasonable, arbitrary, or unconscionable attitude on the part of the court.”

The plaintiff alleged that defendant, who keeps a hotel, pushed him down three flights of stairs and into the street where plaintiff sustained a broken leg. Defendant denied that he pushed plaintiff or caused him any injury.

Plaintiff sought to make his case by his own testimony and cross-examination of the defendant. A woman who accompanied the plaintiff at the time of the alleged assault was not called as a witness. The defendant, his wife, several employees, and a tenant in defendant’s hotel, who said they were witnesses to what took place, sustained defendant’s denial.

By overruling defendant’s motion for judgment notwithstanding the verdict, the court recognized that there was some evidence to support the plaintiff’s claim.

The plaintiff contends that the court did not have the right to determine the credibility of the witnesses and the weight of the evidence, and that these functions were exclusively for the jury. Ordinarily that is true, but there are other considerations which have to be reconciled with this general proposition.

Section 11576, General Code, sets forth the grounds on which a motion for a new trial may be granted. Among them, in subsection six, is “that the final order, judgment, or decree is not sustained by sufficient evidence, or is contrary to law.”

This provision imposes a duty upon the trial court to determine the sufficiency of the evidence.

In harmony with this provision and as a safeguard against an error of judgment under this power, either by the trial court or a reviewing court, Section 1157 Í, General Code, provides:

“The same court shall not grant more than one new trial on the weight of the evidence against the same party in the same case, nor shall the same court grant more than one judgment of reversal on the weight of the evidence against the same party in the same case.”

That the Court of Appeals has power to reverse a judgment on the weight of the evidence is implied by Section 6 of Article IV of the Constitution of Ohio, where it is provided that that court can not reverse a judgment “entered on the verdict of the jury” on the weight of the evidence “except by the concurrence of all three judges of a Court of Appeals.”

These positive provisions of law are meaningless if, as plaintiff contends, the finding of the jury on conflicting evidence is sacrosanct. The correct measure of the trial court’s action is to apply the definition of the term, “abuse of discretion,” as stated above. By that measure, this court concludes that, on the record herein, it does not “clearly appear” that the court abused its discretion in making the order granting a new trial, but rather that it was clearly within its authority in so doing, and its action is affirmed.

Judgment affirmed.

Conn and Fess, JJ., concur.


author: McClintock, P. J.

text:
    Braden, Appellee, v. Neubrander et al., Appellants.
    (No. 375
    Decided March 30, 1951.)

      Messrs. Lutz é Puglisi, for appellee.

      Mr. Kenneth J. Nordstrom, for appellants.
   McClintock, P. J.

This is an appeal on questions of law from a judgment of the Court of Common Pleas of Ashland County. Plaintiff, appellee herein, filed a petition against defendants, appellants herein, and in his first cause of action claims that there is due him the sum of $478.88, • with interest, on an account for labor and material furnished Edwin Neubrander, Walter Neubrander, and Arthur F. Neubrander.

For his second cause of action plaintiff incorporates and makes a part thereof all the averments of his first cause of action and further says that in pursuance of a contract with Edwin Neubrander, Walter Neubrander, and Arthur F. Neubrander, Edwin Neubrander being the owner and Walter Neubrander and Arthur F. Neubrander being the lessees, agents, and tenants of the owner, plaintiff furnished labor and material for the construction and repair and certain improvements on a barn and building of the defendants, situated on the land thereinafter described, and thereafter perfected a lien for the labor performed and material furnished and filed the same with the recorder of Ashland county.

Plaintiff prays for judgment for the sum of $478.88, with interest.

The defendant Prudential Insurance Company of America claims some interest in the premises by reason of a mortgage.

To this petition the defendants filed a joint answer and cross-petition, and in their answer to the first cause of action admit that the plaintiff furnished the labor and material set forth but deny there is any money due the plaintiff thereon, Further answering, defendants deny each and every allegation of plaintiff’s first cause of action not admitted to be true.

In their answer to the second cause of action, defendants admit the existence of a certain contract between them and plaintiff; that plaintiff furnished labor and material on the barn or building of defendants; that a lien was perfected and filed in the recorder’s office of Ashland county, Ohio; and that no part of the claimed indebtedness evidenced by such mechanic’s lien has been paid. Defendants deny that plaintiff has a valid lien upon the real estate described in the petition; that there is due plaintiff the amount claimed in Ms petition; and that there is anything due to plaintiff as alleged in such cause of action, over and above all setoffs of the defendants, as claimed in plaintiff’s alleged mechanic’s lien affidavit. Defendants deny further each and every allegation in the second cause of action not therein expressly admitted to ■ be true.

Defendants, in their cross-petition, allege that on or about the 10th day of December 1949 plaintiff was employed by them to do certain construction work; that plaintiff then and there represented himself to defendants as a contractor of skill and experience, capable of repairing and rebuilding for defendants the damaged and collapsed north wing portion of the main barn then and there situated on the premises of defendants; that the defendants then and there agreed to employ plaintiff to repair and rebuild such barn in a workmanlike manner, on a time and material basis then and there agreed upon between the parties; and that it was agreed further that plaintiff would repair and rebuild said portion of the building in such a manner as to make it usable and adequate for normal stress and strain and for normal weight-loads.

Defendants allege further in their cross-petition that plaintiff repaired and rebuilt the section of the barn, including the installation of two main support beams; that such beams, as well as all other work, were installed pursuant to plaintiff’s own plans and specifications; that upon completion defendants paid plaintiff the amount claimed due him for work and material, being the sum of $1,497.80; that within a brief period of time after the completion of plaintiff’s work for the defendants both of the main support beams sagged and bent, which in turn caused the roof of the barn to sag, and as a direct consequence no substantial weight of any kind, such as hay or farm machinery conld be placed upon the barn floor; and that there was a loss of the use of the barn floor, caused by the failure and negligence of the plaintiff to install the proper type of beams sufficient to carry the normal' stress and strain required for the support of the roof and entire barn structure.

It is further alleged that plaintiff breached his warranties with the defendants to repair and rebuild such barn in a workmanlike manner and that such repairs would be planned and performed in such a manner as to carry the normal stress and strain of a structure of this type and so as to carry the normal weight-loads of such structure; that, by reason of plaintiff’s breach of .warranties and faulty construction, defendants lost the use of the portion of their main barn for the entire spring ■ and summer of the year 1950; that plaintiff failed and refused to repair and rebuild the damaged and sagging structure, although often requested by the defendants so to do; that defendants were obliged to expend the sum of $276.33 for the hire of other labor and the purchase of additional material to redo the portion of the barn faultily built by the plaintiff in the manner aforesaid; and that defendants were further damaged by loss of use of the barn for hay storage in the summer of 1950 and were required to temporarily store 2,175 bales of hay on the dirt floor in another section of the barn.

Defendants further say that they were damaged by the added expense of double handling required in moving the aforesaid bales back to the repaired barn and by spoilage of 200 bales of clover-alfalfa-mix hay by reason of the necessity.of temporary storage of the bales on a damp dirt floor, to the defendants’ further damage in the amount of $500. Defendants pray judgment against plaintiff in the sum of $776.33.

Plaintiff filed a demurrer to the defendants’ cross-petition, for the reason that the facts do not constitute a counterclaim. The demurrer was sustained by the Court of Common Pleas, and, the defendants not desiring to plead further, the cross-petition was dismissed by the court. Thereafter, defendants appealed to this court on questions of law, and for their assignments of error claim,:

1. The court below erred in sustaining plaintiff’s demurrer and dismissing defendants’ counterclaim.

2. The judgment for the plaintiff sustaining his demurrer is contrary to law.

The question presented is: Does this cross-petition set out sufficient facts to constitute an action arising out of a contracts

Section 11317, General Code, as amended September 27, 1947, reads as follows:-

“A counterclaim is a cause of action existing in favor of one or more defendants against one or mofe plaintiffs or one or more defendants, or both, between whom a several judgment might be had in the action, and arising out of the contract or transaction set forth in the petition as the foundation of the plaintiff’s claim, or connected with the subject of the action or arising out of contract or ascertained by the decision of a court.

“Such counterclaim shall not be limited to the amount claimed by the plaintiff or defendant against whom such counterclaim is asserted.” (Italics supplied.)

Section 11319, General Code, relative to a setoff, was repealed at the time Section 11317, General Code, was amended. It is to be noted that the basis of defendants’ claim for damages is a breach of a contract other than that set out in plaintiff’s petition.

It is the claim of plaintiff that the cross-petition of defendants sets forth a cause of action based on tort and not arising out of a contract, within the meaning of Section 11317, General Code, as ámended.

Counsel for plaintiff cite several authorities which they claim support their contention and refer to the case of McMurray v. Vaughan’s Seed Store, 117 Ohio St., 236, 157 N. E., 567. When that case was decided, Section 11319, General Code, which provided for a setoff, was in effebt, and the court held that in an action founded on contract the defendant may by answer assert as a setoff only a cause o^f action arising on contract or ascertained by the decision of the court, and such setoff could be pleaded only in an action ■ founded on contract. The court found from the facts therein that the answer alleging a, setoff did not assert facts sufficient to constitute a cause of action ex contractu.

On page 240 the court quoted with approval from the case of Needham v. Pratt, 40 Ohio St., 186, as follows:

“ ‘The allegations of fraud and deceit are sufficient, without the warranty, to constitute a cause of action in tort. And the averments of warranty and breach, separately taken, would constitute a good cause ex contractu,.’ ”

Counsel cite also Gillette v. Tucker, 67 Ohio St., 106, 65 N. E., 865, 93 Am. St. Rep., 639. That case was approved by the Supreme Court in the case of Bowers v. Santee, 99 Ohio St., 361, 124 N. E., 238, the first paragraph of the syllabus of which reads as follows:'

“The relation of surgeon and patient is one arising out of contract, express or implied. The surgeon is not an insurer or guarantor, but does agree to exercise the average degree of skill, care and diligence exercised by members of the same profession in the given situation.” •

A careful reading of the cross-petition filed by defendants ' discloses that it is claimed by defendants that plaintiff agreed to do this work in a workmanlike manner and represented to them that he was a contractor of skill and experience, capable of doing this work, and that plaintiff agreed to repair and rebuild the barn in a workmanlike manner. These facts constitute a relationship between the parties, arising out of a contract.

In conclusion,' it is the opinion of this court that the cross-petition does state a cause of action arising out of a contract, and not a tort as claimed by plaintiff. For that reason the Court of Common Pleas committed prejudicial error in sustaining plaintiff’s demurrer to the cross-petition.

For that reason, the judgment of the Court of Common Pleas is reversed and this cause is remanded to that court for further proceedings according to law.

Judgment reversed.

Putnam and Montgomery, JJ., concur.


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

text:
    Weinstein, Appellee, v. Newman, Appellant.

      (No. 7332
    Decided January 8, 1951.)

      Messrs. Rendigs, .Fry & Kiely and Mr-. Robert M. Dennis, .for appellee.

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

' The plaintiff-appellee describes this action, in which he obtained a judgment from which the defendant-appellant took this appeal, as one “in quantum meruit on an implied contract for the reasonable value of services rendered by the plaintiff, a real estate broker who was orally requested by the defendant to procure a certain parcel of real estate for him.5 ’

The plaintiff testified that the defendant expressly promised to pay him for his services, but there was no evidence as to any agreement as to the amount of compensation.

The defendant denied that he had entered into any contract with the plaintiff. By way of explanation of his denial he testified that he bought and sold real' estate; that he and the plaintiff were business and social friends, having been acquainted for about 25 years; that they were accustomed to consult about real estate matters and assist each other in their business-transactions, as a matter of friendship, ■ without receiving or expecting to receive any compensation; and that the service which the plaintiff performed in this instance was of the same kind and under similar circumstances as the gratuitous services theretofore performed. Defendant denied that he had ever promised to pay the plaintiff and that plaintiff had ever de-: manded any compensation until a disagreement developed between them in another transaction having no relation to this one.

The defendant’s evidence tended to prove such denial.

There was a wide divergence between the evidence of the plaintiff and that of the defendant, as to the facts.and circumstances surrounding the service performed by the plaintiff, the inferences to be drawn therefrom, and the intention of the parties as disclosed thereby.

. In submitting the cause to the jury, the court treated it as one in which the plaintiff was suing to recover á commission for procuring a purchaser of real estate. The controversy does not fall in that 'category. The defendant was not an owner seeking a purchaser. He was the purchaser and the plaintiff admits that the defendant had been negotiating through another real estate' broker. According to the defendant, all the plaintiff did was to go with him to the home of one of the co-owners and prevent the owners from taking •advantage of his illiteracy. There was a general exception to the charge, but whether the error was one Of commission and so prejudicial as to require a reversal on that ground we do not determine. .However, as we are obliged to reverse the judgment on another ground, necessitating a new trial, we call attention to it so that the error will not be repeated.

The error' which requires a reversal is found in the special charge which the plaintiff requested and which the court gave. This special charge is as follows:

“I charge you that if you find, by a preponderance of the evidence, that the plaintiff, Maurice L. Weinstein, was orally requested by the defendant, Jacob Newman, to procure certain real estate, and if you find that he thereafter did procure said property, then you must find for the plaintiff, Maurice L. Weinstein, in an amount that will adequately and reasonably compensate him for the services he rendered the defendant.

“In the absence of a specific agreement to the contrary, the law implies an agreement to pay what- the services are reasonably worth.”

In determining the validity ,of this special charge, it must be kept in mind that the issue raised in this case is whether an actual contract was entered into-by these parties. It is not a case in which a duty to-pay is imposed by law, which, because of the rigidity of forms of actions at common law, was enforceable in an action ex contractu notwithstanding no contract ''had been intended by the parties — even though the idea of agreement ivas entirely repugnant to their intent. In this case there must have been an intent to agree and an actual meeting of the minds, otherwise the defendant was under no obligation to the plaintiff.

The existence of this meeting of the minds with the intent to create an obligation is a fundamental principle in the law of contracts.

In 4 American Jurisprudence, 499, Section 9, it is stated:

“As ordinarily understood, the only difference between an express contract and a contract implied in fact is that in the former the parties arrive at their agreement by words, either oral or written, sealed or unsealed, while in the latter their agreement is arrived at by a consideration of their acts and conduct. In both of these cases there is, in fact, a contract existing between the parties, the only difference being in the character of evidence necessary to establish it. To constitute either the one or the other the parties must occupy toward each other a contract status, and there must be that connection, mutuality of will, and interaction of parties, generally expressed, though not very clearly, by the term ‘privity.’ Without this a contract by implication is quite impossible. It follows that assumpsit will not lie where there is a spontaneous service as an act of kindness, and no request, or where the circumstances account for the transaction on some ground more probable than that of a promise of recompense, for no promise will be implied, and the contract connection is not established.”

In Price v. Cleveland Trust Co., 45 Ohio Law Abs., 606, 68 N. E. (2d), 133, it is stated in the opinion: “Any true contract exists as an obligation because the parties to it have willed, in circumstances to which there is attached in law the sanction of an obligation, that they shall be bound. This is true of both express contracts and those implied in fact.”

It is stated somewhat differently, but with the same meaning, in 12 American Jurisprudence, 501, 502, Section 5:

“A promise to pay for services can, however, only be implied when they are rendered in such circumstances as authorized the party performing to entertain a reasonable expectation of their payment by the party benefited. The service or other benefit must not be given as a gratuity or without expectation of payment, and the person benefited must do something from which his promise to pay may be fairly inferred.”

The decision in Potter v. Carpenter, 76 N. Y., 157, as summarized in the syllabus, is:

“Where it appeared, and was found, that the parties were in the habit of rendering mutual services to each other without any agreement as to payment, and that although, during the time, they had pecuniary transactions to a considerable amount, their services were not brought, or intended to be brought, into their accounts, a promise to pay cannot be implied, and the services will be regarded as matters of mutual accommodation, for which neither party intended to make any charge against the' other; and this, although it is found that they did not suppose one service was equal to, or was to be setoff against the other.” See, also, Gross v. Cadwell, 4 Wash., 670, 30 P., 1052.

The case of Columbus, Hocking Valley & Toledo Ry. Co. v. Gaffney, 65 Ohio St., 104, 61 N. E., 152, sheds much light upon this subject. For that reason we quote the entire syllabus:

“1. The meeting of the minds of parties upon its terms is necessary to' the making of a contract; and this is so whether it be an express contract or an implied one, if, in the latter case, the contract to be proved is an actual one as distinguished from a constructive contract.

“2. Where it is shown, or admitted, that a party performing services, that should have been performed by another, had no intention at the time to claim compensation, and did not' expect to receive any from the other, no recovery therefor can be had upon a quantum meruit against the party for whom ' the work was done.

“3. Where it is averred in a petition that the plaintiff performed services for the defendant ‘at his instance and request,’ the averment may be supported by evidence of the circumstances under which the services were performed tending to show a contract; evidence of an express request is not required.” See, also, Carlson v. Krantz, 172 Minn., 242, 214 N. W., 928, 54 A. L. R., 545.

The fact that the services were performed on request does not under all circumstances impose an obligation to pay. It is said in the third paragraph of the A. L. R. headnote to Robinette v. Hubbard Coal Mining Co., 88 W. Va., 514, 107 S. E., 285, 25 A. L. R., 212, that “the mere request for the additional service, in the absence of an express agreement in regard thereto, generally does not justify the inference of an offer to pay anything in addition to the compensation specified in the original contract, it being assumed, that the extra services were requested and performed as an incident of the employment.”

Even where'promissory words are used by the parties, they do not under all circumstances create contractual obligations. We had such a case before us in Woods v. Fifth-Third Union Trust Co., Exr. and Trustee, 54 Ohio App., 303, 62 N. E. (2d), 987. The promissory words were uttered by a mother to her son. In holding that under the circumstances there was no intent to contract, we quoted from New York Trust Co. v. Island Oil & Transport Corp., 34 F. (2d), 655, 656, the following passage, which we think pertinent here:

“ ‘However, the form of utterance chosen is never final; it is always'possible to show that the parties did not intend to perform what they said they would, as, for example, that the transaction was a joke (Keller v. Holderman, 11 Mich., 248, 83 Am. Dec., 737; McClurg v. Terry, 21 N. J. Eq., 225; Theiss v. Weiss, 166 Pa., 9, 20, 31 A., 63, 45 Am. St. Rep., 638; Bruce v. Bishop, 43 Vt., 161); or that it arose in relations between the members of a family which forbade it (Earle v. Rice, 111 Mass., 17; Bundy v. Hyde, 50 N. H., 116). It is quite true that contracts depend upon the meaning which the law imputes to the utterances, not upon what the parties actually intended; but, in ascertaining what meaning to impute, the circumstances in which the words are used are always relevant and usually indispensable. The standard is what a normally constituted person would have understood them to mean, when used in their actual setting.’ ”

In the instant case, in the first paragraph of the special charge, the jury was instructed that if the defendant requested the plaintiff to procure the real estate and the plaintiff did procure the real estate then it “must find for the plaintiff” in an amount that would reasonably compensate him for his services. This instruction required the jury to entirely disregard the facts and circumstances, surrounding the defendant’s request, tending to prove that the plaintiff as a reasonable man would not have thought that the defendant intended to pay for the services requested. The charge imposed a liability regardless of the intent of the parties and, therefore, was intrinsically erroneous.

In the second paragraph of the charge, the jury was instructed that in the absence of a specific agreement to the contrary the law implies an agreement to pay what the services are reasonably worth. The vice in this instruction is that it ignores the denial of the defendant that there was any contract. Taken in conjunction with the entire special charge, it, in effect, is a statement to the jury that the only way the defendant could escape liability was by proof of a specific agreement on the subject.

There are cases, such as Hinkle et al., Exrs,, v. Sage, 67 Ohio St., 256, 65 N. E., 999, and Merrick, v. Ditzder, 91 Ohio St., 256, 110 N. E., 493, holding that where a family relationship exists between the parties and the services rendered are the kind rendered by a member of a family, no liability exists in the absence of an express contract to pay. However, this charge declares not that it takes an express contract to impose a liability, but that it takes a specific or actual agreement to tlae contrary to avoid or limit liability. We have been cited to no case so holding. We have found none. -

Our conclusion is that the second paragraph of the charge states an incorrect rule.

The legal effect of the entire charge was to require the jury to find for the plaintiff for the reasonable value of the services upon proof that defendant requested and the plaintiff performed services unless the defendant proved a specific agreement that no compensation or a different compensation was to be paid. It relieved the plaintiff of the necessity of proving that the request was made with intent to contract, to pay, cast upon the defendant the burden of proving that there was no such intent, and declared that he could only discharge that burden in one way, and that was by proving a specific agreement to the contrary.

In placing this burden upon the defendant, the court erred. On this subject the principles announced in Dykeman v. Johnson, 83 Ohio St., 126, 93 N. E., 626, rule this case. In that case, as in this case, the defendant’s answer contained a general denial followed by an explanation. It was contended that this placed the burden upon the defendant of proving the explanation, that is, of proving that' the services were rendered under a specific agreement that under certain circumstances which had transpired the plaintiff was not to charge for his services. The court held that the entire burden in the case rested upon the plaintiff.

In the second paragraph of the syllabus of the Dykeman case, the court said:

“The legal effect of such an answer taken as -a whole, is merely to deny the cause of action asserted by plaintiff in his petition, and the burden of proof upon the issues thus joined rests with the plaintiff * *

The court distinguished Sanns v. Neal, 52 Ohio St., 56, 38 N. E., 881, as we construe the opinion, on the ground that the answer in that case pleaded payment, the burden of proving which, of course, rested upon the defendant. The facts in the Sanns case are as dissimilar to the facts in the case at bar as they are from the facts of Dykeman v. Johnson, supra. The latter case is supported by a long line of cases, some of which are cited in the opinion in that case. They furnish the rule to guide us in this case.

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

Judgment reversed.

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

Ross, P. J.,

concurring in judgment. This is an appeal on questions of law from a judgment of the Court of Common Pleas of. Hamilton County renderéd in conformity to a verdict for the plaintiff.

In the original petition, the plaintiff stated that he had performed certain services for defendant as a licensed real estate agent at the request of the defendant, and that he was entitled to be compensated for the reasonable value thereof. The answer was, in effect, a general denial with an added defense of waiver of compensation. A reply was filed by plaintiff denying the new matter set up in the answer.

The case proceeded to trial upon such pleadings. In the examination of a witness for plaintiff, it was sought to be proved that the defendant had specifically promised to pay such compensation. The defendant interposed his objection, claiming a variance in tfie proof and issues made by the pleadings, upon which the plaintiff asked leave to amend his petition to conform to such proof. This request was granted. The defendant then asserted that he was not prepared to meet the new cause of action stated in the amended petition and asked for a continuance. The requested continuance was granted and defendant was given leave to file an answer to the amended petition.

No reply was filed to the answer to the amended petition, in which answer the defendant denied that he had specifically promised to pay such real estate commission and again pleaded waiver. The trial then proceeded upon these amended pleadings.

The issues of fact thus created by the new pleadings were whether the defendant had requested plaintiff to perform certain services as a real estate agent; whether plaintiff had performed such services; whether defendant had specifically promised plaintiff to pay him the reasonable value thereof and had failed and refused to do so; and whether the plaintiff had waived compensation for such services.

Substantial evidence was introduced tending to sustain the contentions of both plaintiff and defendant.

The court gave the following special instruction:.

“I charge you that if you find, by a preponderance of the evidence, that the plaintiff, Maurice L. Weinstein, was orally requested by the defendant, Jacob Newman, to procure certain real estate, and if you find that he thereafter did procure said property, then you must find for the plaintiff, Maurice L. Weinstein, in an amount that will adequately and reasonably compensate him for the services he rendered the defendant.

“In the absence of a specific agreement to the contrary, the law implies an agreement to pay what the services are reasonably worth.”

In the general charge the court stated:

“The issues in this case ¿re made up of the pleadings, an amended petition, an amended answer, and a reply, which should be brought to your attention. The reply in this instance was filed to the original answer and was not filed to the amended answer. Consequently Mr. Stewart in his remarks to you was right when he said there was no reply filed to the amended answer. Mr. Dennis has pointed out to the court just before I began this charge that this reply would have been refiled had he thought to refile that reply, so that had it been refiled, it would have completed the issue.

“As you now have it before you, you have an amended petition and an amended answer. In the amended petition the plaintiff here asks for the reasonable amount of his services involved in effecting a certain real estate deal, and he charges that in the pursuance of that deal a $1,000 cashier’s check was posted with the prospective purchaser and he alleges further that he effected what his business was, and that was, he procured a purchaser and that he transferred to that purchaser a $1,000 check and that the deal was consummated as a result thereof, and that as a result of that particular consummated deal he is entitled to the reasonable amount of his services and he says that the reasonable amount of his services is $1,400.

“An answer has been filed on behalf of Mr. Newman, in which this procedure is denied and, furthermore, it is said that this particular deal that went through was not due to Mr. Weinstein’s activities, and, furthermore, his answer says in effect that there was a certain understanding arrived at at a later time, in which the plaintiff agreed to waive whatever claim he might have against the defendant as a result of this deal.

“What you have before you is a simple issue of deciding just this: If you find in this case the plaintiff has proved by a preponderance of the evidence his allegations, you find for the plaintiff. If you find that he has not proved by a preponderance of the evidence all of his allegations, you will find for the defendant. In other words, if you find that the plaintiff in Ins capacity as the real estate dealer did procure a purchaser for Mr. Newman, that he did transfer to that purchaser a $1,000 check, and if you find further that that purchaser accepted the check and the deal went through as the result of the professional activities of Mr. Weinstein, then you will find for the plaintiff. On the other hand, if you find that these particular allegations made by Mr. Weinstein are not true, that Mr. Weinstein did not procure the purchaser, and that he was not the procuring cause of this deal going through, then you will find for the defendant.

“Furthermore, if you find Mr. Weinstein did act as the procuring cause and did effect this particular sale that went through and did therefore merit a reasonable amount of money for his services, but at a subsequent date waived said claim for services, then you will find for the defendant. If, on the other hand, you find Mr. Weinstein effectively consummated this deal and, therefore, if you find that he had coming to him a reasonable amount of compensation for his services, and if you further find that at a later date he did not waive any claim for these services, then of course you will find again for the plaintiff.”

It is thus apparent that the trial court failed completely to present to the jury the case made by the pleadings and evidence, and, therefore, no verdict rendered by the jury could be responsive to the real issues in the case. A judgment rendered in conformity to such verdict must, therefore, be set aside, as not being responsive to the issues produced by the pleadings and evidence. Aetna Ins. Co. v. Reed, 33 Ohio St., 283; Beck, Trustee, v. Beagle, 28 Ohio App., 508, 162 N. E., 810.

The pleadings and evidence made a definite case upon a special promise or what was formerly known at common law as special assumpsit. The case was presented to the jury upon the theory of implied promise, or what was at common law known as indebitatus ' assumpsit. The fact that the pleadings were amended during the trial only emphasized the difference be- . tween the two actions.

I, therefore, agree that the judgment should be reversed and the cause remanded for a new trial, and this is the extent of my concurrence in the syllabus, opinion, and judgment.

The majority of the court has seen fit to express in the syllabus and the opinion conclusions of law which I consider to be not only obiter , but also erroneous. Some further statement, therefore, seems appropriate.

I vigorously dissent from the conclusion that the only difference between an action upon a special promise and one upon an implied promise is a matter of proof, and that in the former case the promise is proved by evidence of oral or written words, whereas the latter is proved by the actions of the defendant. Obviously, there is a radical difference of proof in the two actions, but the essential difference is that in the action upon the special promise the defendant voluntarily assumes liability, whereas in the action upon the implied promise it is necessary to invoke a legal presumption in. order to impose liability.

There is, therefore, an essential substantive difference between the two actions, and a defendant should not be required to answer to one when the other is tendered by plaintiff as the basis for his recovery.

Section 11238, General Code, provides:

“There shall be but one form of action, to be known as a civil action. This requirement does not affect any substantive right or liability, legal or equitable.” (Emphasis added.)

It is well known that our substantive rights, recognized today (exclusive of statutory enactment), are those which were developed in the courts of common law. We have these by tacit adoption.

The courts of common law long resisted any imposition of liability based upon the theory of promise readily accepted by the civil law. It was not until the beginning of the seventeenth century that the courts of common law reluctantly receded from their position. At that time, in cases of which Slade’s case (Slade v. Morley), 4 Coke’s Rep., pt. 4, 92 b, page 505, is a type, the defendant was held liable for the breach of a promise because he had assumed, for a consideration, to pay. The same principle was applied in imposing liability for negligence in those cases where the defendant had assumed to do something and did it in such a way as to cause loss to the plaintiff, as where defendant assumed to carry the horse upon his ferry, which sank, and caused the loss of the horse. In the beginning, whether the action was based upon an obligation to pay money or to perform a service, it was in tort and responsibility ended with the death of either party. Later, arbitrarily, the courts began to recognize the survival of the former action, while still retaining that of negligence in the tort category. When the principle of the express promise was extended to cases where a consideration had passed to the defendant, or a detriment was suffered by plaintiff without definite promise, liability was imposed upon the theory that by receipt of the consideration or the suffering of the detriment the defendant impliedly promised to pay the plaintiff, and having failed to pay was liable in damages to the plaintiff because he had failed to keep a promise which the law presumed he made and which obviously he did not. The two actions were separated by appropriate forms at common law. Those forms have been abolished, but the substantive rights developed have been retained specifically by statute.

The fact that the amount of the consideration is not definitely included in an action upon an express promise obviously does not change that action to an action in which liability is imposed only by law.

Unless we are to abandon pleading, the plaintiff should be required to conform his proof to his pleadings; and when the plaintiff predicates liability upon a Special promise, he should be required to prove that promise or accept defeat in the action he has chosen to bring against the defendant. The fact that no prejudice could be shown to the defendant in the converse of this situation is beside the point. The defendant could not be heard to complain that the plaintiff, relying upon only implied promise, had proved an express promise.

In the instant action, however, where the plaintiff abandoned his action on implied promise and specifically alleged an express promise, certainly, he should not then be permitted to return to his action upon implied promise only.

Again, I do not agree that the plaintiff in an action upon an implied promise must in his pleading negative a gratuitous furnishing of consideration by the defendant. The law ordinarily implies a promise to pay for services rendered or chattels received. This is the ordinary situation. If circumstances are involved indicating gratuitous service, then this is the unusual situation, and the defendant should prove those circumstances. This he could do under a general denial, including, as it does, denial of the implied promise. Until such facts are made to appear, however, the normal, ordinary responsibility following receipt of consideration should render unnecessary proof by plaintiff that such ordinary relationship does require payment.

The plaintiff enters an action upon implied promise with a prima facie presumption in his favor that where the defendant has received a consideration he should pay for it. The duty rests upon the defendant to meet this primary presumption of fact by evidence to the contrary.

I regret that I have been compelled to thus meet obiter with obiter, but I could not pass unchallenged statements in the syllabus and opinion, which seem to permit an abandonment of all recognition of the substantive rights created by the common law and retained in our practice specifically by statute, and an abandonment of the recognition of the essential differences between the actions which we have inherited and incorporated in our modern law.


author: Per Curiam.

text:
    Click, Appellee, v. Parish et al, Appellants.
    (No. 400
    Decided June 10, 1950.)

      Mr. Carlos A. Faulkner and Mr. Harry I. Kaylor, for appellee.

      Mr. Frank Wiedemann and Mr. Roy W. Roof, for appellants.
   Per Curiam.

These are. appeals on questions of law, one by the plaintiff, Ellis Click, and the otner by defendants Lenole Parish, Harry Boyd, and Al Smith from a judgment of the Common Pleas Court of Hardin County.

The plaintiff filed his petition in that court, which, omitting caption, signatures of counsel, and oath, is as follows:

“Now comes plaintiff, Ellis Click, and for his cause of action against the defendants, Lenole Parish, Harry Boyd, Clayton Shope, and Al Smith, says:

“The defendant, Harry Boyd, is a justice of the peace of Montgomery township, Marion county, Ohio; the defendant, A1 Smith, was a special constable of said Montgomery township, Marion county, Ohio, deputed by said justice of the peace, and the defendant, Lenole Parish, is a resident of Montgomery township in said county.

“On or about the 14th day of October, 1947, said defendants did combine and conspire together to obtain and procure, under color of the office of said Harry Boyd, justice of the peace aforesaid, and of the office of A1 Smith, special constable as aforesaid, to cause to be obtained and procured and did obtain and procure, under color of said offices, the false and wrongful and illegal arrest of plaintiff herein, and did unlawfully and falsely detain the person of plaintiff and restrain him of his liberty, at his home in Kenton, Hardin county, Ohio, and caused him to be conveyed, and did convey him, under said false, wrongful and illegal arrest of his person and restraint of his liberty, from his home in Kenton, Hardin county, Ohio, to the jail of Montgomery township, Marion county, Ohio, late at night, to wit, 11:30 o ’clock p. m. on said day, and kept plaintiff in said jail under color of said false, wrongful and unlawful arrest for a period of more than 12 hours, before releasing him.

‘ ‘ Said false and wrongful and illegal arrest of plaintiff by defendants was wanton and wilful and without just cause and was not made for the purpose of prosecuting a criminal offender under the laws of the state but solely for the purpose of collecting an amount claimed owing the defendant, Lenole Parish, from plaintiff.

“Plaintiff, at said time, was the owner of a truck, which was used for the purpose of hauling hay, and. employed a driver to purchase hay in the vicinity of Kenton, Ohio, and haul same to southern Ohio and other points to sell. On or about October 13, 1947, his said driver called at the farm of the defendant, Lenole Parish, and made arrangements to buy some hay to haul south to sell. The driver did not have the money to pay for such hay, which said Parish knew, but sold him said hay, which he- was to bring through Kenton and have weighed at the scales of David Wax in Kenton and leave the weigh slip there for said Parish to pick up, that evening, which said driver did. Through some misunderstanding said Parish did not find said weigh slip at Wax’s, although it was there, and without further investigation, proceeded to the place of the defendant, Harry Boyd, justice of the peace, to see how he could get his money. Said defendants, Boyd and Parish, knew that said Boyd had no jurisdiction over this plaintiff in any civil action to collect for said hay and that said defendant, Boyd, could secure no costs except in a criminal action by bringing plaintiff into his court, and they thereupon on October 14, 1947, prepared on the criminal docket of said justice, page 95, an affidavit which said Parish did not sign, charging that on or about the 13th day of October, 1947, at the county of Marion, one Ellis' Click did take and dispose of 162 bales of timothy hay from the premises of the above Lenole Parish and did transport it out of the county with intent to defraud the above complainant. Contrary to Section 13104 of the General Code which states the penalty for obtaining property under false pretenses. The defendant, A1 Smith, was called in and informed of the facts and agreed to be sworn in as a special constable to arrest plaintiff and bring him to Marion county. Thereafter a pretended warrant, embodying such pretended criminal charge above, was prepared and issued, by the defendant, Harry Boyd, under color of his office as justice of the peace, at the instigation of said defendant, Lenole Parish, to said defendant, A1 Smith, who proceeded at a late hour in the evening to the home of plaintiff, accompanied by the defendant, Clayton Shope, a police officer of the city of Kenton, Ohio, where said defendant, A1 Smith, and said defendant, Clayton Shope, made said arrest of plaintiff above set forth, and forced him to accompany said A1 Smith to said jail in Montgomery township, Marion county. Ohio. Said plaintiff was placed in said jail, which was filthy and unsanitary and uncomfortable and left until the next day, October 15, 1947. He was then told by defendants that in order to get out he would have to pay for said hay and pay the costs of said arrest. He was arraigned before said justice upon said trumped-up and pretended charge, to which he pleaded ‘not guilty.’ Later on in said day, after he had paid the sum of $106.50, demanded by the defendant, Lenole Parish, and the sum of $3.80, costs demanded by defendant, Harry Boyd, and $8.35 costs demanded by the defendant, A1 Smith, he was permitted to leave said jail and go home. No bond was fixed or given in said pretended criminal case to secure his release; he was not recognized to appear again before the justice of the peace nor bound over to the grand jury of the county, nor was the pretended eharge withdrawn or dismissed.

“By reason of said wilful, wanton, malicious, wrongful acts in causing plaintiff to be falsely arrested and the illegal restraint of his person arising therefrom as above set forth, plaintiff was unable to continue his said business of buying and selling hay in the vicinity of Kenton, Ohio, was forced to sell his truck and discontinue his business, suffered severe discomfort to his person, was made mentally upset and nervous for a considerable period, and was wrongfully humiliated and shamed, to his damages, ordinary and punitive, in the sum of $50,000.

“Wherefore plaintiff prays judgment against the defendants in the sum of $50,000, and for bis costs.”

Each of the parties defendant filed an answer, and to each of the answers the plaintiff filed a reply in which he denied each and every allegation of such answer, which did not constitute admissions of the allegations of the petition.

The cause was tried to a jury in the Common Pleas Court upon the pleadings mentioned.

Upon the trial of the cause, evidence was introduced by the parties, including a paper writing designated as plaintiff’s exhibit 4, which is as follows:

“Warrant To Arrest

“(Violation of state law)

“(Containing copy of affidavit)

“Justice of the Peace Court,

“The state of Ohio, Marion county, ss: Montgomery township.

“To A1 Smith, constable of said township, greeting:

“Whereas, there has been filed with me an affidavit of which the following is a copy:

“Justice of the Peace Court,

“The state of Ohio, Marion county, ss: Montgomery township.

“Before me, Harry Boyd, justice of the peace of Montgomery township, in said county, personally came Lenole Parish, who, being duly sworn according to law, deposes and says that on or about the 13th day of October, 1947, at the county of Marion, one Ellis Click did take and dispose of 162 bales of timothy hay from the premises of the above Lenole Parish and did transport it out of the county with intent to defraud the above complainant. Contrary to Section 13104 of the Ohio General Code which states the penalty for obtaining property under false pretenses.

“Lenole Parish

“Sworn to and subscribed before me, this 14th day of October, 1947.

“Harry Boyd

“Justice of the peace.

“These are, therefore, to command you to take the said if he be found in your county, or, if he is not found in your county, that you pursue after him in any other county in this state, and take and safely keep the said , so that you have his body forthwith before me to answer the said complaint, and be further dealt with according to law. Given under my hand this 14th day of October, 1947.

“Harry Boyd

“Justice of the peace.”

There was also introduced in evidence a paper writing designated as plaintiff’s exhibit No. 2, which reads as follows:

“Warrant To Arrest

“(Violation of state law)

“(Containing copy of affidavit)

“Justice of The Peace Court,

“The state of Ohio, Marion county, ss: Montgomery township.

“To A1 Smith, constable of said township, greeting:

“Whereas, there has been filed with me an affidavit, of which the following is a copy:

“Justice of The Peace Court.

“The state of Ohio, Marion county, ss: Montgomery township.

“Before me, Harry Boyd, justice of the peace of. Montgomery township, in said county,- personally came Lenole Parish, who, being duly sworn according to law, deposes and says that on or about the 13 day of October 1947, at the county of Marion, one Ellis Click did take and dispose of 162 bales of timothy, hay from the premises of the above Lenole Parish and did transport it out of the county with intent to defraud the above complainant. Contrary to Section 13104 of the Ohio General Code which states the penalty for obtaining property under false pretenses.

“Lenole Parish

“Sworn to and subscribed before me, this 14th day of October, 1947.

“Harry Boyd

“Justice of the peace.

“These are, therefore, to command you to take the said Ellis Click if he be found in your county, or, if he is not found in your county, that you pursue after him in any other county in this state,' and take and safely keep the said Ellis Click, so that ypu have his body forthwith before me to answer the said complaint, and be further dealt with according to law.

‘ ‘ Given under my hand this 14 day of October 1947.

“Harry Boyd

“Justice of the peace.”

The jury returned a verdict in the sum. of $675 against the four defendants named in the petition.

A motion by the four defendants for judgment notwithstanding the verdict was sustained as to the defendant Shope and overruled as to the other defendants.

Judgment was then rendered on the verdict against the defendants Parish, Boyd, and Smith, and a motion for new trial was filed on their behalf. A motion for new trial was also filed on behalf of the plaintiff. All ' motions were overruled on January 14, 1950.

Notice of appeal to this court from such judgment was filed by the plaintiff on January 23, 1950, and on January 24, 1950, notice of appeal was filed on behalf of the defendants, Parish, Boyd, and Smith. These are the appeals under consideration.

The plaintiff and the defendants each assigns errors in certain particulars. However, in the view we take of this case it is necessary to consider only certain of the errors assigned by the defendants, as a consideration of these errors will be dispositive of the whole case.

The assignments referred to are as follows:

(a) The court erred in' refusing to follow the law as decided by the Supreme Court in the case of Brinkman v. Droelsbaugh, 97 Ohio St., 171.

(b) The verdict of the jury and the judgment of the court are contrary to law.

(c) The court erred in overruling the defendants’ motion for judgment notwithstanding the verdict of the jury.

An inspection of the petition discloses that the cause of action pleaded by the plaintiff is strictly and solely one for damages for false imprisonment.

The rules of law applicable to actions of this character are stated in paragraphs 1, 2, 3, 4, 5, and 6 of the syllabus of the case of Brinkman v. Droelsbaugh, 97 Ohio St., 171, 119 N. E., 451, L. R. A. 1918 F, 1132, as follows:

“1. False imprisonment is a legal term defining a legal status known in law as an unlawful detention or illegal deprivation of one’s liberty.

“2. False imprisonment per se is not concerned with good or bad faith, malicious motive or want of probable cause on the part of the prosecuting witness, or the officer causing the imprisonment. If the imprisonment was lawful, it is not the less lawful that any or all of the foregoing elements existed. These elements relate to an action of malicious prosecution, but are not essential to an action in false imprisonment.

“3. Whether or not the complaint is true or false is of no concern in an action for false imprisonment. Such inquiry may be essential to an action in malicious prosecution. Whether or not the complaint in the form of affidavit, information or indictment is or is not sufficient in law to charge an offense is likewise per se insufficient to furnish the basis of an action in false imprisonment.

“4. The law relating to false imprisonment classifies affidavits, informations and indictments into ‘void’ and ‘voidable.’ The ‘void’ class includes thosé setting forth facts which in no conceivable form can constitute a criminal offense; or if they might constitute an offense, the court issuing the process had no jurisdiction over such offense or the person charged with the offense. The ‘voidable’ class includes those where a bona fide attempt has been made to charge a possible offense under the statute, but by reason of some defect or irregularity such charge is per se insufficient in law. As to such ‘voidable’ complaint, or ‘voidable’ processes issued thereon, there can be no false imprisonment per se.

“5. Judges and magistrates whose courts have jurisdiction of an offense, sought to be charged in a complaint by affidavit, information or indictment, but, which complaint is insufficient in law, are, on grounds of public policy, exempt from liability for false imprisonment by virtue of any criminal process issued on such complaint.

“6.. By the same public policy, the administrative or executive officer, whether he be constable, policeman, game warden, sheriff, or any other authorized officer of the state, whose duty it is under the law to serve the process of such court, is likewise exempt from any. liability arising from an imprisonment by virtue of such process, which is prima facie regular.”

It is a general rule that the syllabus of a case decided by the Supreme Court constitutes the law of the case, and that lower courts are constrained to follow the law as laid down in the syllabus of such case. Rule VI, Supreme Court Rules of Practice, 94 Ohio St., ix, and notes thereunder.

Although the propositions of law appearing in paragraphs 3, 4, 5, and 6 of the syllabus of the Brinkman case are to some extent obiter and were not necessary to the decision of that case, they do constitute a declaration of the public policy of this state, unanimously concurred in by the judges of the Supreme Court. Such policy is designed for the protection of judges, justices of the peace, sheriffs, and constables in the performance of their duties, and is much more liberal in character, to accomplish such purpose, than in other jurisdictions.

Applying these rules of law to the case under consideration, it is clear that if the affidavit and warrant upon which the arrest and imprisonment of the plaintiff were based are not void but merely voidable the plaintiff has no cause of action against any of the defendants for damages for false imprisonment.

Under the rules mentioned, the “void” class, includes affidavits, informations, and indictments setting forth facts which in no conceivable form can constitute a criminal offense, or,, if they might constitute an offense, the court issuing the process had no jurisdiction over such offense or the person charged with the offense. And the “voidable” class includes those affidavits, informations, and indictments wherein a bona fide attempt has been made to charge a possible offense under the statute, but by reason of some defect or irregularity such charge is, per se, insufficient in law.

We now consider the affidavit and warrant involved herein in the light of the tests set forth in Brinkman v. Droelsbaugh, supra. It appears that the provisions of Section 13104, General Code, which the acts of Click are alleged to have violated, defines the offense of obtaining property by false pretenses with intent to defraud, and that the justice of the peace has jurisdiction to issue a warrant for the arrest and detention of a person charged thereunder. The recitals in the affidavit constitute a bona fide attempt to charge such offense under that section, and the affidavit and warrant are insufficient in law only because of the failure to charge in the affidavit the false pretenses by which the timothy hay was obtained by Click.

Following the rules of law hereinabove set forth, we hold that the affidavit and warrant upon which the imprisonment of the plaintiff was based were “voidable” and not “void.” This being the case, the plaintiff has no cause of action against the defendants for damages for false imprisonment, although he may have a cause of action against one or more of them for malicious prosecution. However, the venue of an action for malicious prosecution is not in Hardin county, since all the defendants are residents of Marion county and were served with summons therein.

For the reason that the affidavit and warrant were voidable and not void, and for the further reason that there was no evidence tending to prove that the defendant Clayton Shope in any way participated in the arrest and confinement of plaintiff, the court did not err in rendering a judgment in his favor notwithstanding the verdict.

As the plaintiff had no cause of action against any of the defendants for damages for false imprisonment, the Common Pleas Court erred in that the verdict of the jury and the judgment of the court are contrary to law, and in overruling defendants’ motion for judgment notwithstanding the verdict. Therefore, the judgment of the Common Pleas Court is reversed, and this court, rendering the judgment the Common Pleas Court should have rendered, renders final judgment in favor of the defendants and against the plaintiff.

Judgment reversed.

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


author: Skeel, P. J.

text:
    Consumers Plumbing & Heating Supply Co., Appellee, v. Chicago Pottery Co., Appellant.
    (No. 21894
    Decided October 9, 1950.)

      Mr. Oscar J. Oréen, for appellee.

      Messrs. Squire, Sanders <& Dempsey and Mr. Frank Harrison, for appellant.
   Skeel, P. J.

This appeal comes to this court on questions of law from an order of the Common Pleas Court overruling defendant’s motion seeking to discharge an attachment.

The plaintiff filed its petition setting forth a cause of action based on contract against defendant, a nonresident corporation which has not qualified to do business in this state under the provisions of Section 8625-4 et seq., General Code.

The petition was filed on January 3, 1950. Defendant’s address, contained in the, caption, was set forth as being in Illinois, and the opening paragraph described defendant as a foreign corporation not qualifled to do business in Ohio. A precipe for service was filed with the petition and a summons was issued. The summons was returned on January 13, 1950, bearing the indorsement, defendant “not found.”

With the petition and the issuance of the summons the plaintiff filed an affidavit in attachment stating that defendant was a foreign. corporation which had not qualified to do business in Ohio, and an order of attachment “with notice to garnishee” was issued. Likewise, upon the filing of the petition an “affidavit for constructive service” was filed, and the first notice of the commencement of the action was published January 5, 1950.

It is the claim of defendant that the attachment proceeding was instituted prior to the “commencement of the action” and therefore is void. The theory advanced by defendant is based on the provisions of Section 11230, General Code, which reads as follows:

“An action shall be deemed to be commenced within the meaning of this chapter, as to each defendant, at the date of the summons which is served on him or on a codefendant who is a joint contractor, or otherwise united in interest with him. When service by publication is proper, the action shall be deemed to be commenced at the date of the first publication, if it be regularly made. ’ ’

It is contended that until the date of the first publication of notice as provided by Section 11292, General Code, an action is not ‘ ‘ commenced, ’ ’ and that an order of attachment issued prior thereto is void. It will be noted, however, that Section 11230, General Code, defining the time when an action shall be deemed commenced is, by its terms, limited to the subject matter contained in Chapter 2, Division I, Title IV, Part Third of the General Code, which is entitled “Limitations of Actions.” The manner in which an action is commenced is defined by Section 11279, General Code, which is part of Chapter 4, Division II of the same title of the General Code, and is designated “Commencement of Action. ’ ’ That section provides:

“A civil action must be commenced by filing in the office of the clerk of the proper court a petition, and causing a summons to be issued-thereon. ”

The grounds of attachment are defined in Section 11819, General Code, found in Chapter 2, Division VI of Title IV.

Section 11819, General Code, in part, provides:

“In a civil action for the recovery of money, at or after its commencement, the plaintiff may have an attachment against the property of the defendant upon any one of the grounds herein stated * * *.”

The words, “at or after its commencement,” as used in that section, refer to the manner of bringing the action defined in Section-11279, General Code. Until an action is “commenced” a court is without power to authorize the constructive service provided for by Section 11292, General Code. The institution of an attachment proceeding is the only means of “commencing” an action seeking a judgment for money only in cases where personal service cannot be had.

In the case of Pilgrim Distributing Corp. v. Galsworthy, Inc., 148 Ohio St., 567, 573, 76 N. E. (2d), 382, the court said:

“That an attachment proceeding in an action in personam is a separate or ancillary proceeding is clear. That an attachment proceeding in an action in rem is the action is also clear. ’ ’

In the case of Endel v. Leibrock, 33 Ohio St., 254, at page 267, Chief Justice Johnson said:

“In an attachment proceeding, which is ancillary to the action, where personal service cannot be made, service by publication cannot be made, unless an attachment is lawfully issued and property taken under .it, or reached by garnishee process, which the court may act on, and no attachment can issue without the requisite affidavit.”

See, also, Francis v. Allen, 51 Ohio Law Abs., 225, 79 N. E. (2d), 803; 32 Ohio Jurisprudence, 445, 455, Sections 56, 66.

The Supreme Court of the United States in the case of Rorick v. Devon Syndicate Ltd., 307 U. S., 299, 83 L. Ed., 1303, 59 S. Ct., 877, third paragraph of the syllabus, stated:

“Under the General Code of Ohio, Sections 11279, 11819, when a civil action for money has been begun by filing the petition and issuing summons, an attachment or garnishment is not premature because obtained prior to personal service or before commencement of service by publication.”

See pages 306 and 307 of the Rorich case for the court’s consideration of the rule as stated in the third paragraph of the syllabus.

The case of Crandall v. Irwin, 139 Ohio St., 463, 40 N. E. (2d), 933, 139 A. L. R., 895, upon which defendant relies, is one dealing with the subject of “limitation of actions.”

In the first paragraph of the opinion by Turner, J., it is said:

“Appellee made application for a rehearing on the ground that the petition was filed within the six-year limitation, although no service was had within sixty days thereafter. The rehearing is limited to this phase of the case.”

That case, therefore, does not deal with the question here under consideration.

Likewise the case of Pilgrim Distributing Co. v. Galsworthy, Inc., supra, relied on by defendant, was primarily concerned with whether an attachment ordered before a summons was issued was void. The court, after disposing of. the question whether the discharge of an attachment before trial on the merits was an appealable order, affirmed the order of the trial court discharging the attachment, for the reason that no precipe for summons was filed or summons issued as disclosed upon the face of the record, and, therefore, the action had not been commenced as provided by Section 11279, General Code.

The court in disposing of this question said, at page 579:

“As no summons was issued or publication made at the time of the levy of the attachment, such attachment was void. The right to an attachment against the property of defendant is a statutory right and unless the conditions of the statute are complied with, no> right ripens thereunder.

“In the case of Seibert v. Switzer, 35 Ohio St., 661, it was held in paragraph one of the syllabus:

“ ‘An attachment, under the Civil Code, is an auxiliary proceeding in an action, which may be sued out by the plaintiff, at or after the commencement of such action, by filing a petition and causing a summons to issue thereon. ’

“In the Crandall case, supra, we said of the Seibert v. Switzer case:

“ ‘It will thus be seen that the question in that ease was the manner of commencing an action. Time was involved only to the extent of showing that the plaintiff had gotten the cart before the horse, i. e., he had filed an auxiliary proceeding before commencing an action in the manner provided by statute. Of course, no jurisdiction could be obtained by attachment until plaintiff had followed the statute as to the manner of commencing a civil action/

“We are of the opinion that the Court of Appeals committed no error in the instant case by holding that a,s the attachment was levied before the action was legally commenced, the attachment was void and should be set aside. ’ ’

That case, therefore, supports the plaintiff’s contention rather than that of the defendant.

For the foregoing reasons, the judgment of the trial court is affirmed.

Judgment affirmed.

McNamee and Hurd, JJ., concur.


author: Fess, J.

text:
    The State, ex rel. Gulf Refining Co., v. DeFrance et al.
    (No. 4465
    Decided April 3, 1950.)

      Messrs. Zachman, Boxell & Torbet, for relator.

      Mr. John J. McCarthy, director of law, and Mr. Robert B. Konwin, for respondents. '
   Fess, J.

This is an action in mandámus, originating in this court, seeking to require the respondents to issue a building permit to relator for the construction of a gasoline service station at the corner of Central avenue and Goddard road in the city of Toledo.

The petition sets forth that relator purchased the premises in question on July 9, 1947, but because of deed restrictions which did not terminate until December 31, 1949, relator did not commence construction of the contemplated station. Prior to January 30, 1950, the lots were situated beyond the limits of the city of Toledo. On January 30,1950, the Toledo council adopted an ordinance annexing eight different areas of property, among which was included relator’s premises. On the same day, pursuant to Sections 4366-8 and 4366-10, General Code, the council enacted ordinance No. 33-50 as an emergency measure to regulate the location of trades and industries, and to regulate and determine setback building lines in the territories newly annexed to the city of Toledo. The ordinance also prescribes penalties for the violation of its provisions. No hearing or notice thereof, as provided by Section 4366-11, General Code, was had prior to the passage of the ordinance.

Section 2 of the ordinance provides:

“Section 2. Use Regulations. Whenever four-fifths (4/5) of the frontage of lots on any street between two intersecting streets contain, at the time of the passage of this Ordinance, structures exclusively residential, no structure shall be built or altered for business olfactory purposes therein unless there are on file at the office of the Commissioner of Inspection the written consents of the owners of three-fourths (3/4) of the entire frontage at the time of the issue of the permit.”

Relator alleges that its premises front 117 feet on Central avenue and abut (but not front) 140 feet on Goddard road; and that there are no residential structures on Central avenue between Goddard road and Cheltenham road.

Relator alleges further, in substance, that its plans and specifications were in proper order and in compliance with all lawful rules and regulations, and that its application was rejected by the respondents upon the sole ground that the zoning ordinance, originally enacted in 1923, as amended did not cover relator’s premises, and that pending the enactment of a zoning ordinance covering the premises in question respondents “did not wish to take the responsibility of granting said permit.”

Relator alleges further that the ordinance was passed without hearing and notice as required by Section 4366-11, General Code; that the ordinance constitutes spot zoning in violation of the Constitution of the United States and the Constitution of Ohio; that the ordinance was passed as an emergency or stopgap measure pending the adoption of a valid zoning ordinance; that it is without reasonable application to the present valid use of property covered thereby; and that it has no uniform application and no reasonable relation to the health, safety, and general welfare of the public, and is void.

So far as the federal and state Constitutions are concerned, it is clear that an Ohio city has the right to adopt a comprehensive zoning ordinance. Village of Euclid v. Ambler Realty Co. (1926), 272 U. S., 365, 71 L. Ed., 303, 47 S. Ct., 114, 54 A. L. R., 1016; Pritz v. Messer (1925), 112 Ohio St., 628, 149 N. E., 30.

Authority for the enactment of zoning ordinances may be derived from a city charter adopted pursuant to Article XVIII of the Constitution, or such ordinances may be enacted pursuant to the provisions of Sections 4366-7 to 4366-12, General Code. The Toledo charter does not specifically enumerate the power to enact zoning regulations but does provide that the city shall have and exercise all powers granted to cities by the Constitution and laws of Ohio. The authority for the adoption of the ordinance herein involved is therefore derived from the statute rather than from the city charter (State, ex rel. Fairmount Center Co., v. Arnold, Dir., 138 Ohio St., 259, 34 N. E. [2d], 777, 136 A. L. R., 840) and must be in accordance with the provisions of Sections 4366-7 to 4366-11, inclusive, General Code. Under those provisions, no zoning regulations or amendment thereto may be adopted by a city council until after reference to and recommendation by the planning commission. Section 4366-11, General Code, also requires publication of a thirty-day notice and public hearing before the passage of such an ordinance. (It appears from respondent’s brief that on January 30, 1950, the same day that the territory was annexed and the emergency ordinance was adopted, the council also adopted ordinance No. 27-50, submitting the proposed change of the zoning maps by the inclusion of the territory annexed to the plan commission. It also adopted ordinance No. 28-50 authorizing notice by publication of a public hearing upon the proposed change on March 8, 1950.)

Relator alleges further that the premises in question front 117 feet on Central avenue and have a depth of 140 feet abutting, but not fronting, on Goddard road, and that there are no residential structures or residential uses whatever made of any of the property or frontage within the block on Central avenue upon which the premises are situated. Construing this allegation in favor of the pleader indicates that the premises in question are excepted from the ordinance by the provisions of section 2 thereof. There is a distinction between “fronting” and “abutting.” Haviland v. City of Columbus, 50 Ohio St., 471, 34 N. E., 679. Whether a lot abuts or fronts may be a question of fact, but since relator alleges the premises abut, but do not front, on Goddard road, the allegation, for the purpose of the demurrer, must be regarded as true.

On several counts the petition states a good cause of action:

1. The refusal of' the permit pending the enactment of a zoning ordinance was arbitrary. State, ex rel. Gaede, v. Guion, Commr. of Bldgs., 117 Ohio St., 327, 158 N. E., 748; State, ex rel. Ice & Fuel Co., v. Kreusweiser, Inspector of Bldgs., 120 Ohio St., 352, 166 N. E., 228.

2. The “stopgap” ordinance was passed without notice and hearing in violation of Section 4366-11, General Code, and is invalid.

3. Under section 2 of the ordinance it had no applicátion to relator’s property.

In overruling the demurrer, it is unnecessary to determine the constitutional questions raised. In its . brief relator asks that upon the overruling of the demurrer the writ should be made final. Section 12288, General Code, provides that when the right to require the performance of the act is clear and it is apparent that no valid excuse can be given for not doing it, a court, in the first instance, may allow a peremptory writ of mandamus. But a peremptory writ should issue only when the material facts, are admitted which disclose that the relator is entitled to relief as a matter of fact as well as of law.

The demurrer is therefore overruled with leave to the respondents to-answer on or before April 7, 1950.

Demurrer overruled.

Conn and Carpenter, JJ., concur.