text:
    Snow, Appellee, v. The Cincinnati Street Ry. Co., Appellant.

      (No. 6786
    — Decided June 16, 1947.)

      Messrs. Kuñkel <& Kunkel, for appellee.

      Messrs. Brumleve, DeCamp & Wood, for appellant.
   Ross, J.

This case is again presented to this court upon an appeal on questions of law from a judgment of the Court of Common Pleas of 'Hamilton county. The trial resulted in a verdict in favor of the plaintiff. In two previous trials the same conclusion was reached by juries.

The defendant advances as its first assignment of error that the trial court should have directed a verdict for the defendant, (1) because the defendant was not negligent, and (2) because the plaintiff was guilty of contributory negligence.

This court has previously considered the evidence in this case under such claims of the defendant. The essential facts have been developed in the several trials with little change. An examination of the record now presented leads to the same conclusion previously expressed upon such facts that the trial court committed no error in refusing to grant motions for an instructed verdict on either ground.

The defendant advances as its second assignment of error that ‘ ‘ the trial court erred in refusing to grant a new trial on the gi;ound that the verdict is manifestly against the weight of the evidence.” (Emphasis added.)

Thirty-six jurors have considered the evidence in this case and at least 27 of them have found for the plaintiff in the three trials which have been held. In the first trial, the jury returned a verdict in favor of the plaintiff for $6,000. That was set aside by the first trial court on-the ground that such verdict was against the weight of the evidence. The second, trial resulted in a verdict in favor of the plaintiff for $25,000, which the trial court set aside on the ground that “the verdict was rendered under the influence of •passion and prejudice.”

The problem here presented is whether now this court may reverse the judgment of the trial court on the weight of the evidence. If it cannot, then there is no need to examine the record in the light of this second assignment of error.

There can be no question that the trial court was prohibited by the provisions of. Section 11577, General Code, from again granting a new trial on the weight of the evidence. The authorities noted hereinafter sustain that conclusion. The instant action being one ppnding on October 11, 1945, the overruling of a motion for new trial was necessary in order that the' court might consider the weight of'the evidence. Von Gunten v. New Justice Coal Co., 147 Ohio St., 511, 72 N. E. (2d), 253; Maynard v. B. F. Goodrich Co., 144 Ohio St., 22, 26, 56 N. E. (2d), 195; State, ex rel. Curran, v. Brookes, 142 Ohio St., 107, 50 N. E. (2d), 995; Jacob Laub Baking Co. v. Middleton, 118 Ohio St., 106, 160 N. E., 629. Such motion was filed in the instant case and was overruled. The assignment of error now considered is based upon the overruling of such motion, which could not have been granted by the? trial court, without violating the provisions of Section 11577, General Code. Such situation will be discussed later.

In order to reach a conclusion upon the present power of this court to consider the weight of the evidence, it is necessary to review.at some length'the decisions of the Supreme Court in which Section 11577, General Code, has been construed. That section 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.”

■ In Mahoning Valley Ry. Co. v. Santoro, Admr., 93 Ohio St., 53, 112 Ñ. E., 190, that section received extended consideration. The problem there presented was whether Section 11577, General Code, operated to prevent the Court of Appeals from granting .a new trial on the weight of- the evidence when its antecedent, the Circuit Court,-had so ordered. The syllabus of that case is:

■ “1. The Constitution of 1912, by its schedule, expressly saves ‘all laws then in force, not inconsistent therewith.’

“2. Before a statute can fall by reason of such inconsistency the repugnacy must be necessary and obvious. If by any fair course of reasoning the statute and Constitution can be reconciled, the statute must stand. (Following Cass v. Dillon, 2 Ohio St., 607.)

“3. Section 11577, General Code, is by these tests reconcilable with the several amendments of the Constitution adopted in 1912,. and is applicable not only to cases pending on the first of January, 1913, but to all other cases, until said statute shall be repealed.

“4. A mere change of the name of a court does not change the court, where the clear and manifest constitutional purpose is to the contrary.”

That case has never been overruled, but on the contrary has been cited frequently with approval. Matthis v. Youngstown Municpal Ry. Co., 140 Ohio St., 164, 165, 42 N. E. (2d), 754; Isaac v. Intercoast Sales Corp., 132 Ohio St., 289, 298, 7 N. E. (2d), 216; Nyiry v. Modern Brotherhood of America, 97 Ohio St., 343, 120 N. E., 878; Ramm v. Babin Realty Co., 98 Ohio St., 449, 121 N. E., 902.

On page 56 of the opinion in the Santoro case, the writer of the opinion distinguishes jurisdiction from procedure:

“ ‘Jurisdiction has been defined as: The power to hear and determine a cause; * * * the authority by which judicial officers take cognizance of and decide them; * * * the power of a court or a judge to entertain an action, petition, or other proceeding; * * * a power constitutionally conferred upon a judge or magistrate to take cognizance of and determine causes according to law, and to carry his sentence into execution.’ 11 Cyc., 659 et seq.

“While practice or procedure is: ‘The mode of proceeding by which a legal right is enforced; that which regulates the formal steps in an action or other judicial proceeding; the course of procedure in courts; the form, manner, and order in which proceedings have been and are accustomed to be had; the form, manner, and order of conducting and carrying on suits ox-prosecutions in the courts through their various stages, according to the principles of law, and the rules laid down by the respective courts.’ 31 Cyc., 1153.”

Again, on page 57, it is stated ixx the opinion:

“Por more than seven years Section 11577, General Code, had beexx a part of the practice and procedure of our Ohio courts, and there is nothing whatsoever in the new Constitution that undertakes to withdraw generally from the General Assembly the power and right to legislate upon matters that are peculiarly ■and exclusively questions of practice and procedure.”

The result of the reasoning in the opinion appears in the syllabus, quoted supra.

In Cleveland Ry. Co. v. Trendel, 101 Ohio St., 316, 128 N. E., 136, the court there had under consideration the exact question now presented and, in the syllabus, held:

“1. The right of a court of appeals to reverse the judgment of a trial court is predicated upon its finding error in the proceedings of such court.

“2. A trial court having granted one new trial upon the weight of the evidence is prohibited - by Section 11577, General Code,.from granting a second new trial upon the same ground.

“3. Where the trial court has granted one new trial' upon the weight of the evidence, and upon a ■second trial has overruled a motion for a new trial upon the same ground, for the reason that the court is prohibited by Section 11577, General Code, from granting the second new trial upon that ground, and ■error is prosecuted to the Court of Appeals, that court is without power to weigh the evidence and ■determine whether the verdict was in fact against the wéight of the evidence, since there could be no error in that respect by the’trial court.”

The rationale of the opinion is found on page 320, where it is stated:

“The only judgments of an inferior court known to the law in Ohio at the time of the adoption of the amendment in 1912, or now, that may be reviewed by a court of appeals, are judgments from which error is prosecuted, and the jurisdiction of the Court ■of Appeals in all such cases is invoked by the filing of a petition in error, and before modification or reversal can be had the court must find not only that there is error apparent upon the record but that the error found is prejudicial. (Scovern v. State, 6 Ohio St., 288; Ohio Life Ins. Co. v. Goodin et al., 10 Ohio St., 557, and many other cases.) Hence it must follow that in the instant case before the Court of Appeals would have 'been warranted in a judgment of reversal it must have found that .the Court of Common Pleas erred in the overruling of the motion for a new trial. To have so held would have amounted to holding that the Court of Common Pleas erred in observing the provisions of Section 11577, General Code, as applicable to Common Pleas Courts. For whatever doubt there may be as to the power of the General Assembly to limit the number of judgments of reversal upon the weight of the evidence that may be entered in the same case by the Court of Appeals, there can be no question as to its power to limit the number of new trials upon the weight of the evidence that may be granted in the same case by the courts whose jurisdiction- is defined by the General Assembly and not by the Constitution.”

That case was approved by the Supreme Court in Rolf v. Heil, 113 Ohio St., 113, 148 N. E., 398.

In connection with that decision, the absurd situation resulting from any other construction is apparent. That is developed by reference to Werner v. Rowley, 129 Ohio St., 15, 193 N. E., 623. Suppose the trial court should ignore the provisions of Section 11577, General Code, and grant a second new trial on the weight of the evidence. Appeal to the Could of Appeals would follow. The appellee would assert that there was no final order in granting the motion for new trial. The appellant would claim, and very properly, an abuse of discretion by the trial court in its flagrant violation of the mandate of Section 11577, General Code. The Court ’of Appeals would then be about to reverse the order of the trial court for such abuse of discretion when it would be confronted by Werner v. Rowley, supra, under which authority it would be permitted to agree with the action of the trial court if it found such verdict to be against the weight of the evidence, and, in other words, sustain the order of the trial court in its flagrant flouting of Section 11577, General Code. The ■effect of Werner v. Rowley, supra, is to say that the Court of Appeals could do what would have been an abuse of discretion in the trial court. Is there any logic or reason in such a situation?

The syllabus in Werner v. Rowley, supra, reads:

“1. A legislative ’ act which attempts, directly or indirectly, to limit or' abridge the power of the Courts of Appeals to review the judgments of the Courts of Common Pleas, contravenes the provisions of Section ■6, .Article IY, of the state Constitution and is void.

“2. This right of review extends not only to errors ■of law occurring at the trial, but also to errors of fact, including an assignment of error that the verdict of a jury is against the manifest weight of the evidence..

“3. Where a trial court has granted one new tidal upon the weight of the evidence and upon a second trial is precluded, by Section 11577, General Code, from granting a second new trial against the same party upon the same grounds, the Court of Appeals has the power to examine the record and to weigh the evidence for the purpose of determining whether the verdict, on the second trial, was in fact against the weight of the evidence. (Cleveland Ry. Co. v. Trendel, 101 Ohio St., 316, and Rolf v. Heil, 113 Ohio St., 113, are overruled.)”

Judge Jones wrote the opinion in that case. He had dissented in the Trendel and Heil cases, supra, Ibut the personnel of the court had completely changed and Chief Justice Weygandt and Judges Stephenson, Be vis and Wilkin concurred with him. Judge Matthias was on the bench at that time. His name does not appear as- concurring, dissenting or not "participating. It may be presumed he recorded a “silent dissent.”

In the Rowley case, as indicated by /the syllabus quoted, the court was again considering the exact question • considered in the Trendel and Beil eases, supra, and now considered. Strange to say, Judge Jones had nothing to say about the opinion in the Santoro case, where Section 11577, General Code, was held to be merely a procedural statute. It is true that holding is not carried into the syllabus in the Santoro case. However, a reading of the opinion in the Rowley case indicates that the Supreme Court, as then constituted, agreed that Section 11577, General Code, was a statute affecting the jurisdiction of the Court of Appeals and was not merely a procedural statute. The court held that such statute, modifying the jurisdiction of the Court of Appeals, collided with the 1912 amendment to Section 6, Article IY of the Constitution, and must, therefore, be ignored, thus permitting the ridiculous situation heretofore outlined.

But what has been the further history of the section? It appears again for consideration in Isaac v. Intercoast Sales Corp., supra, but here a somewhat different personnel appeared in the court and the opinion was written by Judge Myers, and with him Judges Matthias, Day, Zimmerman and Williams concurred in the syllabus, and consistently Chief Justice Weygandt and Judge Jones dissented. Paragraph one of the syllabus in Isaac v. Intercoast Sales Corp., supra, is:

“In giving effect to any particular section of the Constitution, other sections relating to the same sub ject must be taken into consideration in order to harmonize, if possible, all integral parts of the same subject. In the light of Sections 5 and 16, of Article I, and Section 6, of Article IY, of the Constitution, Section 11577, General Code, remains a valid exercise of legislative power in providing by law the procedure for the exercise of appellate jurisdiction by the Courts of Appeals in respect to judgments of reversal on the weight of the evidence. (Third paragraph of the syllabus in Mahoning Valley Ry. Co. v. Santoro, Admr., 93 Ohio St., 53, approved and followed.) ”

How similar that is to the holding in the Santoro case from'which Judge Myers quoted with approval. Again now, Section 11577, General Code, is held to be a procedural statute and nowhere again will it he found to be considered otherwise, although the dissent of Chief Justice Weygandt will be found consistently registered in subsequent cases, always based upon the Rowley case. Judge Myers dismissed consideration of the Rowley case with the mere statement that “the facts in that case were not the same as in the instant case,” and yet the rationale of the two opinions are diametrically opposed.

In Matthis v. Youngstown Municipal Ry. Co., supra, at page 165 of a per curiam opinion, the court said:

“Section 11577, General Code, providing that '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 tlie evidence against the same party in the same case’ is a valid exercise of legislative power m providing by law the procedure for the exercise of appellate •jurisdiction by the Court of Appeals in. respect to judgments of reversal on the weight of the' evidence. Mahoning Valley Ry. Co. v. Santoro, Admr., 93 Ohio St., 53, 112 N. E., 190; Nyiry v. Modern Brotherhood of America, 97 Ohio St., 343, 120 N. E., 878; Isaac v. Intercoast Sales Corp., 132 Ohio St., 289, 7 N. E. (2d), 216.” (Emphasis added.)

Note in the first place that that was a case where the Court of Appeals twice reversed on the weight of the evidence (evidently considering the Rowley case a permissive authority) and further note that the Supreme Court found that Section 11577, General Code, in prohibiting such action, was a procedural measure; and further note that the Santoro case,, supra, is quoted as an authority as well as the Inter-coast Sales Corp. case, supra.

Now if Section 11577, General Code, is a statute modifying the jurisdiction of the Court of Appeals when it prevents the Court of Appeals from finding the trial court committed error in not doing what it could not legally do under the statute — why does it become merely a procedural statute when it prevents-the Court, of Appeals from reversing twice on the weight of the evidence?

Is it jurisdictional when the Court of Appeals is-prevented from creating an absurd situation, noted heretofore, but merely procedural when the Court of Appeals- itself is limited in the exercise of a jurisdiction entirely confined to that court, and without any reference to what occurred in the trial court?' The court was not required to reverse the judgment in the Rowley case because the exact situation was-not again presented, but certainly all rationale of the Rowley case was inferentially repudiated. Again, note the personnel of the court in that per curiam opinion; Judges Turner, Williams, Matthias, Hart, Zimmerman and Bettman, concurring and Chief Justice Weygandt, dissenting'upon authority of the Rowley case.

In view of those later decisions, this court can no longer consider itself bound by the decision in the Roivley case in spite of the fact that the exact question here presented has not been directly considered by the Supreme Court.

The Rowley case was predicated upon the 1912 constitutional amendment of Section 6, Article IV. Section 11577, General Code, was considered to be in conflict with that amendment. Today the 1944 amendment of that constitutional section is in effect. It is true the jurisdiction of tlje Court of Appeals remains in statu quo until the Legislature modifies it by appropriate legislation. Youngstown Municipal Ry. Co. v. City of Youngstown, 147 Ohio St., 221, 70 N. E. (2d), 649; Schottenstein v. Newburger, 148 Ohio St., 71, 72 N. E. (2d), 903. Is the Legislature required to act in order to effect ■ the application of Section 11577, General Code? That section has survived two constitutional amendments of the Article in question without change, and no change or modification of that section is now required to cause it to apply to the instant question. It was judicial construction of that section and the 1912 constitutional amendment which produced a completely illogical situation, a judicial construction which evidently does not now have the support of the Supreme Court. The Legislature long ago, before the 1912 amendment of Section 6, Article IV, inferentially forbade this court to do what the trial court could not legally do. There is now no barrier to the effect of that legislative mandate. We are not presented here with a statute which after the 1912 amendment- to the Constitution attempted to modify that jurisdiction, and which would require re-enactment to make it now effective under the 1944 amendment of that constitutional provision.

Section 11577, General Code, requires no re-enactment. It is still as effective as it ever was, and although the 1912 amendment of the Constitution still fixes the jurisdiction of the Court of Appeals, the inferential effect of Section 11577, General Code, can no longer be restrained in face of the 1944 amendment, giving the Legislature power to modify the jurisdiction of the Court of Appeals, since any restraint must find its basis merely in a fallacious judicial construction of the statute and the 1912 amendment.

One other consideration, previously noted, requires comment, although not controlling in reaching a conclusion upon the question presented. For many years the Court of Appeals has been prohibited from considering the weight of the evidence in the absence of a motion for a new trial, based upon that assignment of error. The authorities supporting that rule have been previously noted. If the Court of Appeals can, independently of any action by the trial court, consider the weight of the evidence, what becomes of the rule requiring the filing of a motion for a new trial in order that the Court of Appeals may consider the weight of the evidence? Is the appellant required to file a motion which he knows and the trial court knowfe and the appellate court knows is a wholly futile action? Certainly, all logic and reason are not to be discarded when matters of procedure are involved.*

It is true that under practice applicable, to cases pending after October 11, 1945, no motion for new trial will be necessary in order that” the Court of Appeals may consider the weight of the evidence. What effect this may have upon cases pending after October 11, 1945, need not here be considered as not involved.

The foregoing requires the conclusion that the weight of the evidence is not before this court, for the reason that no new trial could be granted by this court, upon the ground the verdict was against the manifest weight of the evidence, the trial court having once before so ordered.

As a third claim of error, the defendant asserts that the plaintiff’s counsel were guilty of misconduct requiring a new trial. It does not appear that such claim is sustained by the record. ,

The fourth assignment of error deals with the refusal of the trial court to give a special charge requested by defendant. That charge is:

“The court charges you that the traffic lights at the intersection of Maple avenue and Montgomery avenue regulated traffic and pedestrians who were crossing said intersection and did not regulate traffic or pedestrians who were traveling on Montgomery road at any other point; and, if you find that the plaintiff was crossing Montgomery avenue at a point opposite the ¡center doors of the Norwood Theater, then it is immaterial whether the street car crossed the intersection on the green, amber or red light.”

No error prejudicial to defendant appears in the refusal of the trial court to give that special instruction.

As a fifth assignment of error the defendant complains of a statement of the trial court in its general charge. The court instructed the jury in part:

'“The evidence which has been submitted suggests the possibility of the existence of contributory negligence and for that reason the court is enjoined as á matter of law to speak on that subject.”

If there was-any error in that charge it was to the prejudice of the plaintiff rather than the defendant, in that there is an implication that in the opinion of the trial court there is a suggestion of the possibility of contributory negligence.' Certainly, the jury, from that statement alone, might have gained the impression that the trial court considered that the evidence submitted justified a finding of contributory negligence.

For these reasons, the judgment is affirmed.

Judgment affirmed.

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


source: Caselaw Access Project

author: Matthews, J.

license: Public Domain

text:
    Sizemore et al., Appellees, v. Belser, Appellant.
    (No. 6731
    — Decided January 20, 1947.)

      Mr. William R. Collins, for appellees.

      Mr. Robert G. McIntosh, for appellant.
   Matthews, J.

This is an appeal from a judgment of the Court of Common Pleas reversing a judgment of the Municipal Court of Cincinnati for the defendant.

The plaintiffs sued to recover a judgment for money on account of damage to their automobile incurred through the alleged negligence of the defendant.

The trial in the Municipal Court was without a jury. At the close of the plaintiffs’ evidence, the defendant “moved for a directed verdict for the defendant on the plaintiffs’ case.” That motion was sustained, a motion for a new trial overruled and judgment entered for the defendant.

As the trial judge was the trier of the issues of fact as well as iásues of law, the motion for a “directed verdict” presented to him the duty of deciding whether as a matter of fact or law the plaintiffs had failed to sustain the burden resting upon them. And the sustaining of such a motion is a finding by the trial judge either as a matter of law or fact, or both, that the defendant is entitled to judgment. Such a motion raises a broader issue than that raised when the issues of fact are being tried to a jury. A motion at the close of a plaintiff’s evidence, or at the close of all the evidence, that the court instruct the jury to return a verdict raises the issue whether there is substantial evidence in support of the party having the burden, and, if thqre is, the motion must be overruled and the jury, as the trier of the facts, allowed to perform its function. Where a jury is waived and the issues of fact are submitted to the judge, a motion for a verdict or judgment at the close of the plaintiff’s evidence raises the issue whether the evidence then before the judge, as the trier of the facts, preponderates in favor of the plaintiff. If the evidence is of equal weight or the greater weight favors the defendant, the motion should be sustained. Thereafter, the cáse is in the same sitúation as would be created in a trial by jury upon the return of a verdict for the defendant. Neither the action of the trial judge without a jury nor the verdict of a jury should be disturbed on the ground that it is against the weight of the evidence,, unless it is manifestly so.

As is said in 39 Ohio Jurisprudence, 1193, Section 450:

“Unquestionably, in the trial of an action to the 'court, the defendant has the right, at the close of the plaintiff’s evidence, to rest his case and submit it upon the facts proven; and if it appears that the plaintiff has offered no evidence upon a material fact required to be proved by him or has offered evidence of such a character as to overwhelm any prima fqcie case made by him — if the evidence of the plaintiff preponderates in favor of the defendant — there is no reason why the case should proceed further, incurring useless expense and for an unavailing purpose, unless the defendant should be unfortunate enough to offer testimony that would bolster up his opponent’s case.”

This question was. directly answered in Euclid Arcade Bldg. Co. v. H. A. Stahl Co., 99 Ohio St., 47, 49, 121 N. E., 820, in which the court clearly drew the distinction between a motion for an instructed verdict in a jury trial and a motion for judgment in a trial without a jury and said:

“But why should the rule apply to the trial court which has assumed the province of a jury in the trial of issuable facts? Unquestionably, the defendant had-the right at the close of the plaintiff’s evidence to rest its case and submit it upon the facts proven. We see no reason why, at the close of plaintiff’s case, if the evidence of the plaintiff preponderates in favor of the defendant, the case should proceed further, incurring useless expense and for an unavailing purpose unless the defendant were unfortunate enough to offer testimony that would bolster up his opponent’s case.”

See, also, State, ex rel. Gauvey, v. Lofton, 12 Ohio Law Abs., 415, and Kroger v. Clark, 52 Ohio App., 33, 2 N. E. (2d), 623.

So the task confronting a court reviewing the action of a Municipal Court without a jury is not that of determining whether there was any evidence, but rather whether the finding of the court was manifestly against the weight of the evidence. ''

In the instant case, the plaintiffs’ automobile was parked along the curb of Montgomery road in Nor-wood. The defendant was proceeding along that street. There were water, ice and slush on the street It was slippery. The defendant was the only person present at the time of the accident. He was called on cross-examination by the plaintiffs and testified that as he was proceeding on his right side of the street, at not exceeding 35 miles per hour, another automobile proceeding in the opposite direction struck his automobile causing him to lose control of it; that, although he did all in his. power to regain control, he was unable to do so; and that, while his automobile was beyond his control, it slid or skidded to the opposite side of the street and struck plaintiffs’ parked automobile.

The only other evidence related to the condition of the street and the damage to the plaintiffs’ automobile, excepting that one of the plaintiffs testified that, when she reached the scene of the collision immediately after it occurred and when ,the defendant was in a dazed condition or just recovering from the dazed condition caused by the collision, he said he did not know what happened. She and other witnesses also said they did not see any automobiles in the street other than the two which had collided. The police officer who arrived two minutes after the collision testified that the defendant told him that an automobile going at a rapid speed in the opposite direction struck the left front fender of his automobile, causing it to skid and slide around, strike a pole, careen off it and skid down the hill until his automobile struck that of plaintiffs. He told the police officer that after his automobile was struck and started to skid, he could, not tell 'what happened.

The evidence failed to show any act of the defendant constituting negligence as a matter of law. Counsel cites- Section 6310-21, General Code, and contends that it was violated. Apparently reference is had to Section 6307-21, General Code. That section does not,impose a specific requirement to do a specific act. Furthermore, whether such section was' violated as to speed depended upon what inferences were drawn from the evidence, and as to the assured-clear-distance provision that section was inapplicable. The instant case is not one involving a collision with an object in the path of the defendant’s automobile. If defendant was truthful, he was diverted from his path by the negligence of a third person, and, of course, the law did not require him to anticipate that.

Under the law, the trial court, sitting without a jury, in passing upon the motion for a judgment was required to weigh this evidence to determine whether the greater weight showed that the defendant was negligent. Did his conduct conform to that of a reasonably prudent person under all the circumstances shown by the evidence? The trial court found that the plaintiffs had failed to show that such conduct did not by the greater weight of the evidence. There is substantial evidence in support of that conclusion. We cannot say that the conclusion of the trial court is manifestly against the weight of the evidence.

Counsel relies upon a general statement in a quotation in the opinion in Glenny v. Wright, 53 Ohio App., 1, 11, 4 N. E. (2d), 158, upon the subject of negligence in relation to a skidding automobile. That quotation shows that the court fully understood that whether negligence .was présent depended upon all the facts and circumstances. In the Glenny case the jury returned a verdict for the defendant and the court affirmed the judgment thereon.

The other case is that of Kaczmarek v. Murphy, 78 Ohio App., 449, 70 N. E. (2d), 784. There the claim was that the skidding on the icy highway was caused through the defendant’s negligent operation of his automobile. Contrary to the situation in the case at bar, a jury was impaneled to try the issues of fact. The trial court sustained the defendant’s motion for an instructed verdict and thereby prevented the trier of the facts from deciding the issues of fact, whereas, in the case at bar the judge, as the trier of the .facts, passed upon the issues of fact. All the Court of Appeals decided in the Kacsmarelc case was that there was a conflict in the evidence and reversed the judgment and remanded the case for a new trial.

For the reasons herein set forth, the judgment of the Court of Common P,leas is reversed and thát of the Municipal Court affirmed. '

Judgment reversed.

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


author: By the Court.

text:
    Turnbull et al., Board of Commrs. of Greene County, Appellants, v. City of Xenia et al., Appellees.
    (No. 496
    — Decided October 25, 1946.)

      Mr. Marcus Shoup, prosecuting attorney, for appellants.

      Mr. William A. Miller, city solicitor, for appellees.
   By the Court.

This is an appeal on questions of law and fact from a decree of the Court of Common Pleas of Greene county, Ohio. This cause is submitted to us on demurrer to the second amended petition, which is the same as was considered in the trial court. The petition alleges that the plaintiffs are the duly elected, qualified and acting Board of County Commissioners of Greene county, Ohio, and, as such board^ are vested with the title to the Greene county courthouse and the appurtenant premises upon which the same stands; that the city of Xenia, Ohio, is a municipal corporation under the laws of the state of Ohio; and that the other defendants are officers of the city as designated in the caption, who are empowered with authority-in the city.

The plaintiffs allege further that the Greene county courthouse premises are bounded on the east side by Green street, a public street running- north and south between Main and Market streets in the city of Xenia; and that Green street was created by virtue of- a certain deed of conveyance executed by the commissioners-of Greene county, Ohio, etc.

Plaintiffs further say that in the year 1933 a four and one-half foot strip of the courthouse grounds, lying parallel along the west side of Green street, was-used by the city of Xenia for the purpose of widening-Green street, such widening being accomplished under a verbal arrangement between the city and county; that the verbal agreement was not in conformity with the- applicable laws governing county commissioners; that county commissioners have only-such powers, express or implied, as are granted to them by the General Assembly; that an act or proceeding by county1 commissioners inconsistent therewith is null and void; that the verbal arrangement in 1933 was of no force and effect and was therefore null and void; that the city of Xenia has no jurisdiction by easement, use, title or prescriptive right over the four and one-half foot strip; and that Greene county holds the fee simple-title to the four and one-half foot strip.

The plaintiffs allege further that the defendant commission of the city of Xenia, Ohio, on the 22nd day of November 1944, adopted ordinance No. 778, which contains the following language:

“An ordinance-relating to traffic and regulating the use of public streets hnd highways, prescribing regulations relative to parking of vehicles, and providing for the installation, operation, maintenance, supervision and control of the use of parking meters, and providing for the enforcement of penalties for the violation of such regulation * * #.”

The ordinance provides, in part:

“Section 1: The following streets are hereby designated as parking meter zones:

“(c) Green street, from Main street northwardly to Market street.”

Plaintiffs say further that in compliance with the ordinance the parking meters were installed on the designated streets with the exception of the west side of Green street; and that the city manager has ordered installation of meters to be made on the remaining west side of Green street and will cause such installation to be effected unless restrained by the court.

Plaintiffs further allege that the proposed installation of parking meters on such strip of ground is, in consideration of the above-recited facts and. being against the , will and consent of the county, without authority of law; and that the city has no right to.exercise traffic control or regulations over the four and one-half foot-strip. Plaintiffs further say that they are without adequate remedy at law.

The prayer asks that the defendants be enjoined from proceeding with the installation of meters on the county premises; that a temporary restraining order issue; that upon a final hearing such order be made perpetual; and that the plaintiffs be granted any and such further relief to which they may be entitled.

To this petition a general demurrer was filed for the reason that the petition does not state facts sufficient to constitute a cause of action against these defendants. A motion to dissolve the temporary restraining order was also filed for the same reason.

The trial court held, and we think properly so, that no cause of action is stated for injunctive relief since title to the four and one-half foot strip is involved and a question of title cannot be raised by injunction but must be determined in a court of law. Cited was the case of Harlan v. Veidt, 6 Ohio App., 45. This view is also supported by 15 Ohio Jurisprudence, 152, Section 3, which, in part provides:

“Ejectment, and not injunction, is the proper remedy against one in possession of real property without, title or right.”

Ejectment under the Code is brought upon averments that the plaintiff has a legal title and is entitled to the possession but is unlawfully kept out of the possession by the defendant. The pleadings in the instant case disclose that the title is in the plaintiffs and the defendants are in possession of the four and one-half foot strip, and that the same is being used as a part of the street.

We are of the opinion that the plaintiffs have failed to set forth a cause of action justifying the granting of an injunction or other equitable relief, and that the motion to dissolve the temporary injunction should be sustained, which was properly done by the trial court..

The next question presented is whether the petition states a cause of action in ejectment. If so the demurrer should be overruled. As stated, supra, in order to recover in an action in ejectment the plaintiff must have a right to possession. “Proof of a perfect legal title in the plaintiff is prima facie a sufficient right of entry to support ejectment, as legal title draws to and carries, with it the right of possession.” 15 Ohio Jurisprudence, 155, Section 6.

We are of the opinion that the petition contains all the necessary averments to maintain an action in ejectment.

Defendants urge that, even conceding that the arrangement between the parties hereto with reference to the four and one-half foot strip is null and void as not being made in conformity with the applicable laws governing county commissioners, still the plaintiffs cannot recover and'no cause of action is stated.

Cited is the case pf Buchanan Bridge Co. v. Campbell et al., Commrs., 60 Ohio St., 406, 54 N. E., 372, the ■ syllabus of which provides:

“A contract made by county commissioners for the •purchase and erection of a bridge in violation or disregard of the statutes on that subject, is void, and no recovery can be had against the county for the value •of such bridge. Courts will leave the parties to such unlawful transaction where they have placed them■selves, and will refuse to grant relief to either party.”

In that case the board of county commissioners failed to comply with specific mandatory requirements in the entering of a contract for the purchase of bridge materials. After such were furnished the county prosecuting attorney obtained a restraining order preventing the county auditor’s warrant from issuing for the paymeii't of the bridge claim for the reason that the contract was executed by the commissioners without complying with the statutes.

The bridge company was denied its claim and the -court said, on page 419:

“Whatever the rule may be elsewhere, in this state the public policy, as indicated by our Constitution, statutes and decided cases, is, that to bind the state, a ■county or city for supplies of any kind, the purchase must be substantially in conformity to the stathte on that subject, and that contracts made in violation or disregard of such statutes are void, not merely voidable, and that courts will not lend their aid to enforce ■such a contract directly or indirectly, but will leave the parties where they have placed themselves. If the contract is executory, no action can be maintained to enforce it, and if executed on one side, no recovery can be had against the party of the other side.

‘ ‘ Experience has shown that this policy is necessary to prevent abuses, and protect the public treasury from depletion by unscrupulous public officers.”

And on page 426, the court said:

“ * * * the commissioners have no power to bind the county in that way, and to allow such a course to be pursued would permit the evasion of the statutes.”

We are of the opinion that the doctrine announced in that case supports, in this case, the claim of the plaintiffs rather than that of the defendants. If the arrangement as made was void, then the parties are in the same position as they were in 1933, and the defendants have no right to use the strip for street purposes in the event the county commissioners no longer desire the property be so used, but so long qs the city of Xenia uses and is permitted to use the strip for street purposes, the city, through its duly qualified officers, has full power and legal right to construct and maintain parking meters on the strip.

It was held in Hines, a Taxpayer, v. City of Bellefontaine, 74 Ohio App., 393, 57 N. E. (2d), 164, that the acquirement of parking meters is incidental to the exercise by the municipality of its authority to regulate traffic and constitutes a municipal purpose authorized by law within the meaning of Section 3615, General Code.

The rule is stated in 11 Ohio Jurisprudence, 515, Section 240, as follows:

“Under the rule that contracts made by a board1 of county commissioners are void unless ¿hey come within and conform to the statute, a contract is invalid unless the commissioners have complied with the mandatory provisions of the statute respecting the manner of letting it.”

See, also, Yol. 1, Opinions of Attorney General (1935), 487, No., 4198, which involves the principles under consideration here, the opinion holding:

“There is no other statutory authority empowering' the commissioners of a county to sell real estate belonging to the county than the statutes * * * [Sections '2447 and 2447-1, General Code].” The Legislature in •Ohio' enacted such laws to prescribe a method for the sale of real estate not needed for county purposes.

Reference is also made by counsel for the defendants to the case of Nearing v. Toledo Electric St. Ry. Co., 9 C. C., 596, 6 C. D., 664. We have carefully examined that case and cannot agree that it has application to the facts as alleged in the petition here. That was an action brought by the plaintiffs, as owners of property abutting upon a street, for the purpose .of enjoining the defendant from entering upon the street and running its cars upon it. The question arising there was in regard to the signatures of the county commissioners to a paper consenting to the use of that street by the property owners.. No record was made upon the journals of the county commissioners of their action on this matter. The court held, in paragraph three of the syllabus:

“The action of a board of county commissioners ■consenting in writing for a street railway to occupy a street, is valid, although not entered in the journal of the board; such action may be shown to have been taken by parol evidence.”

It will be noted that in that case the county commissioners were raising no objection to the defendant using the street -for railway purposes. On page 606, the court said:

“Now, in this case, so far as the question is concerned, the commissioners are content with the consent that they have already given. Their consent has been one that has been acted upon by the street railway company. * * * The person who objects to this signature is a-person who owns property upon the street, who has the right to object to the railway going upon the street until it has obtained the requisite number of consents. But we think this consent may be given by the board of commissioners signing a paper such as this. It is a vote; it- is not a grant of any property; it is not a conveyance of property; it is an expression of the assent of the owners given in writing to the construction of the railway through the street, which written consent is to be laid before the common council of the city.” {Italics ours.)

The court in that case was not called upon to determine the validity of the consent given by the county commissioners in the event that they might have desired to withdraw the same. That is the question we have in the case at bar. There is no authority in this state for an oral dedication of county-owned real estate.

For the foregoing reasons the motion to dissolve the restraining order is sustained and the demurrer is overruled. The cause is ordered remanded for further proceedings according to law.

Decree accordingly.

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


author: Ross, J.

text:
    Kattwinkel, Appellee, v. Kattwinkel, Appellee; Hall, Appellant.
    (No. 6741
    — Decided January 20, 1947.)

      Mr. Simon L. Leis and Mr. Jos. F. Fieman, for plaintiff-appellee.

      Mr. Echuin J. Hayes, for appellant.
   Ross, J.

This is an appeal from a judgment of the Common Pleas Court of Hamilton county affirming a judgment of the Municipal Court of Cincinnati sustaining a writ of replevin of an automobile in favor of the plaintiff.

The facts developed from the record are:

The plaintiff at the time he entered the armed forces of the United States in 1943 transferred title to an automobile, which he had purchased and partly paid for, to his wife. Such transfer of title was duly evidenced by a certificate of title which was issued to his wife. The plaintiff stated “that at that time the automobile was transferred to his wife, merely as a matter of convenience to her during his stay in the armed forces, and that it was understood between he and his wife that the automobile would be redelivered and transferred to him upon his discharge from the army.”

The plaintiff was discharged in the early part of December 1945. He then requested his wife to re-transfer ■ the automobile to him and she agreed to do this. On December 7, 1945, he and his. wife together sought'the services of a notary public to complete such retransfer but were unsuccessful. They agreed to complete the deal the following day, but became involved in a disagreement later in the evening of December 7, 1945, and the wife then refused to retransfer the automobile.

On December 11, 1945, plaintiff filed suit against his wife for divorce and a decree of divorce was granted plaintiff. The wife did not contest the action. Upon the filing of the petition for a divorce, an order was made restraining the wife from disposing of the automobile. In the final decree of divorce, title to the automobile was awarded plaintiff.

Prior to the filing of the petition for divorce and immediately after the last conference of plaintiff and his wife, she transferred title to the automobile to her sister.

This transfer of title was evidenced by a certificate of title delivered to the sister, Verna Hall, one of the defendants herein. Although it is claimed by the plaintiff in his brief that consideration for such transfer was past, there is evidence that while a part of such consideration was monies previously advanced the wife' of plaintiff by her sister, the sister paid in. addition to such advances the sum of $200 which constituted her discharge pay from the armed forces. The sister testified she paid in all $700 and that she had given her sister, the wife of plaintiff, $300 to defray her expense upon a trip to visit the plaintiff. '

The plaintiff’s wife testified that she paid off $275 remaining due on the purchase price of the automobile before the return of her husband from overseas, and that her sister had advanced her $500 and paid $200 at the time plaintiff ’s wife transferred such automobile to her sister.

It is the contention of the plaintiff that the final decree of divorce in which plaintiff was awarded title to the automobile was sufficient to set aside the transfer of title from the wife to her sister and to reinvest such title in the plaintiff. Had the wife still had title to the automobile'at the time the restraining order was made,'there would be little difficulty with the plaintiff ?s contention.

There is no direct evidence in the record that the sister knew of any arrangement which plaintiff had with his wife involving this automobile. The peculiar circumstance surrounding the transfer of the automobile to the sister immediately after the tilt of plaintiff with his wife would suggest that the sister was not a bona ficle purchaser for value, but a mere suggestion does not rate the dignity of a reasonable inference. Certainly, if the sister was a bona fide purchaser for value, the decree of the court would be unavailing to transfer title to the plaintiff. The sister was not made a party to the divorce- action and the decree in that action was unavailing against her certified title ownership of the automobile. The evidence in this case does not reach the level required to show a fraudulent conspiracy between the wife of plaintiff and her sister to defraud the plaintiff of his right to have the automobile returned to him.

In addition to this the sister is the holder of the certificate of title and the plaintiff is not.

Section 6290-4, G-eneral Code, provides in part:

"No court in any case at law or in equity shall recognize the right, title, claim, or interest of any person in or to any motor vehicle, hereafter sold or disposed of, or mortgaged or encumbered, unless evidenced by a certificate of title or manufacturer’s or importer’s certificate duly .issued, in accordance with the provisions of this chapter.”

This court has held’ that where it is clearly shown that it was not the intention of the owner to have a certificate delivered to take effect as a transfer of title, the certificate in the hands of a person fraudulently acquiring same may be ignored. Martin v. Ridge Motor Sales, Inc., 78 Ohio App., 116, 69 N. E. (2d), 93.

. This is not.such a case. The plaintiff intended to convey title to his wife.

That he had an agreement with her whereby she was to reconvey the automobile to him upon his return from the service, and that she broke this agreement may give rise to some form of action, but, in the face of a certificate of title in the hands-of the sister and in view of the evidence presented, will not sustain the writ of replevin.

The judgments of the Common Pleas Court and the Municipal Court are reversed, and judgment may be here entered for the defendant Yerna Hall.

Judgment reversed. ■

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


author: By The Court.

text:
    Hodapp, Appellee, v. Cole, Dir., et al., Appellants.
    (No. 3931
    — Decided February 14, 1947.)

      Messrs. Hamilton Kramer and Mr. W. B. Bartels, for appellee.

      Mr. Richard W. Gordon, city attorney, Mr. Baxter Evans and Mr. Robert E. Leach, for appellants.
   By The Court.

The appeal is on questions of Law from a judgment of the Common Pleas Court restoring plaintiff to his position as a partrolman in the division of police of the department of public safety of the city of Columbus, Ohio.

The action was in mandamus and was, grounded upon the claim that the plaintiff was discharged from his position as a police officer by a void proceeding, in that the charge against him, the violation of rule 44 adopted by the director, of public safety of the city of Columbus, would not support the action taken. It was further asserted that the charge was not one within the purview of Section 486-17 et seq., General Code, or other provisions of the Ohio Civil 'Service Act or the Charter of the city of Columbus; that by reason of certain acts of defendants during plaintiff’s hearing he was deprivéd of-the opportunity off making a complete record of the proceedings before defendant Charles C. Cole, director of public safety of the city of Columbus; that he was thereby denied an effective appeal to the courts; and that by reason of all of which he has no adequate remedy at law.

The defendants in a joint answer set up chronologically the proceedings incident to the suspension of plaintiff, his hearing, a copy of rule 44 and his order of removal from the service; denied that the absence of the attorney for the plaintiff at the hearing before defendant director of public safety prejudiced plaintiff’s cause; averred that an appeal was taken from the findings and order of discharge of plaintiff to the Civil Service Commission of the city of Columbus, which finding was sustained and an appeal taken to the Court of Common Pleas of Franklin county, and that plaintiff was subsequently dismissed; and specifically denied all matters not admitted.

On the trial of the mandamus action, counsel introducecl a complete record of the testimony taken at the hearing before the director of public safety.

The trial judge in sustaining plaintiff’s claim and ordering the writ of mandamus in his favor handed down-a-written opinion, the gist of which is that plaintiff by his acts did not violate rule 44. However, the entry journalizing the decision is general in terms and it must be assumed that such entry was responsive to the issues properly joined upon the petition which was based upon the averment that' the order discharging the plaintiff- was void.

The parties are in substantial agreement as to the determinative facts. Plaintiff was at the time of the arrest of one Claude Wesley, and had been for four years prior thereto, a member of the Columbus police force. On the 26th of February 1944, Wesley was picked up as a suspected violator of the federal regulation controlling gasoline stamps. He was apprehended at a filling station and upon Wesley’s repairing to a toilet plaintiff was directed by an officer, Howler, who was with him to accompany the prisoner. Whereupon the prisoner turned over to plaintiff a watch, a diamond ring, and $390 in money. The officer took also the prisoner’s automobile which was afterward delivered to his wife. The prisoner directed the plaintiff to turn over the articles of personal property which had been given to him to the prisoner’s wife. Although the automobile was delivered to the wife, the plaintiff did not give her the other personal property and several days later reported that fact to the prisoner and stated that he was not sure of tlpe identity of Wesley’s wife and, therefore, did not turn the personal property, over to her. The prisoner then instructed the plaintiff to keep it for him. The personal property was held for several weeks and eventually the matter came to the attention of plaintiff's superior officer. An investigation was had- and it was then learned what had occurred. Plaintiff at first denied to an inspector that he had any money-of the prisoner but afterward, admitted possession of all the property and it was turned back to the prisoner. Plaintiff claimed that he held the effects to accommodate the prisoner upon the prospect that he would assist legal authorities in running down higher-up violators of the stamp regulation.

Four errors are assigned, to wit:

1. Not finding that plaintiff had a plain and adequate remedy in the ordinary course of the law.

2. That the finding that plaintiff had not violated a rule of the Columbus police department was not a proper basis for- the writ of mandamus.

3. That'the finding that the rule had not been violated is contrary to and against the manifest weight of the evidence.

'4. That the trial court had no jurisdiction to" grant a writ of mandamus as plaintiff did not begin his action in conformity to the mandatory provisions of the General Code of Ohio.

We will not consider the errors assigned in detail or in order but will discuss generally the questions presented.

It is urged by plaintiff that at the time the cause was presented to the Common Pleas Court the parties virtually presented an agreed case, and that whether or not there was conformity with the technical requirements necessary to support an order in mandamus, there was support for the finding made and defendants may not be heard in contradiction thereof in this court.

If the claim of the plaintiff be conceded, which we cannot|do, then the first question arising is, was the judgment supported by a proper finding that the plaintiff did mot violate rule 44.

That rule, so far as germane to our question, is:

“Each and every member of the division of police is ordered to promptly deliver to the secretary of police, through the property clerk on duty, any * * * or other articles or thing of value, which has either been found, seized by or delivered to any member of the division of police, * * * or received from any citizen, which is to be held * * * for safekeeping * * V’

Upon the conditions under which the plaintiff received the articles in question, in probability there would have been no violation of the rule had he observed his instructions from the owner. Upon the directions later given him by the owner as to the disposal of the property, it was clearly placed with plaintiff for safekeeping and for no other or different purpose. From that time his retention of the property was a direct and manifest violation of the letter and the spirit of the rule. So that, if the action is to be considered on this appeal as in the nature of an agreed case* then the judgment- was improper and must be reversed because unsupported by the evidence and contrary to law.

But it is urged that the charge against the plaintiff was not a predicate for his discharge from the service of the police department and that, therefore, the hearing and subsequent findings were - void. If this be true, then, without respect to the guilt or innocence of plaintiff of the charge preferred against him, it would be a proper basis of the judgment which is under review:

Section 4382, General Code, authorizes a director, of public safety to make all rules for the regulation and discipline of the police and fire departments, except as otherwise provided in the subdivision in which such section is found. Rule 44 was so promulgated.

If the offense with which the plaintiff was charged is within the purview of Section 486-17®, General-Code, then a finding of a violation of such section would support the action taken here. City of Cincinnati v. Gamble et al., Bd. of Trustees, 138 Ohio St., 220, 34 N. E. (2d), 226; State, ex rel. Daly, v. City of Toledo. 142 Ohio St., 123, 50 N. E. (2d), 338. If such charge were properly asserted and the director of public safety acted in relation thereto, he had jurisdiction to make the order and its correctness and validity could be challenged only by appropriate appeal Nto the Civil Service Commission' and thereafter to the courts. That procedure was abandoned by the plaintiff after his first appeal to the Civil Service Commission. Section -486-17®, General Code, provides, among other things, as follows:

“ * * * any such officer, employee [in the classified service] * * * may be removed for incompetency, inefficiency, dishonesty, drunkenness, immoral conduct, insubordination; discourteous treatment of the public, neglect of duty, violation of the provisions of this act or the rules of the commission, or any other failure of good behavior, or any other acts of misfeasance, malfeasance or nonfeasance in office.”

We do not have the formal charge against the plain.tiff or the formal finding of the director of public, safety. An examination of the testimony' and statements of the director at ■ the titne the testimony wás taken indicates ’there were charges against the plaintiff other than the violation of rule 44, but apparently by. the pleadings and briefs of counsel the charges wore restricted to the violation of the rule, at least the finding to a determination that the rule had been violated. If so, then there is no specific charge against the plaintiff, based on any ground, as such, designated in Section 486-17®, General Code. If, however, the violation of rule 44 may be classified under any one or more of the grounds for removal set out in Section 486-17a, then such violation will meet the intendment of the statute. It is our judgment that the purposes of rule 44 are so manifest and salutary in the proper administration of the police department that its violation may he characterized as neglect of duty or nonfeasance in office.

The plaintiff was accorded a hearing on a charge, the violation of rule 44, and was found to have violated that rule. Such offense, in our judgment, was within the purview of Section 486-17a and supported the action taken against him. See State, ex rel. Klaue, v. Barrett, 22 C. C., 104, 12 C. D., 231; State, ex rel. Savage, v. City of Cleveland, 20 C. C. (N. S.), 250, 31 C. D., 296.

The proceedings had in connection with the charge against the plaintiff were regular and the director of public safety had jurisdiction to hear and determine the cause, and the order made was not void unless the action at the time of the hearing in taking testimony in the absence of counsel for the plaintiff had such an effect. We cannot so find for several reasons: First, the taking of the testimony in the absence of plaintiff’s counsel was not jurisdictional; second, such action was not prejudicial in view of the testimony developed; third, the reco.rd does not support the conclusion that plaintiff’s counsel was lulled into any sense of assurance that no further testimony would be taken in his absence (he merely stated, when attempt was made tp reach him, that he cared to offer nothing further and made no inquiry to learn whether the hearing had been closed on the part of the' city); and fourth, no effort was made of record by counsel for plaintiff to assure his opportunity to cross-examine witness Dowler or to offer any conflicting testimony.

It would seem that such opportunity, was open to. counsel because it appears that the director did not announce his decision at the conclusion of the hearing. Finally, the claim that by the action in taking the testimony of Dowler, in the absence'of the plaintiff’s áttorney, plaintiff was precluded from making a- record on appeal is not supported because manifestly such record was available. But even if the testimony had not been taken, the appeal from the decision on the original hearing contemplates a ele novo hearing.

Counsel for the parties consider and discuss at length many other legal phases of this appeal. Wé do not discuss them because we do not consider that they are necessary or vital to its determination.

Nor is it within the province of this court to consider circumstances which would extenuate or reduce the punishment of the plaintiff. If the plaintiff was properly found to be a violator of the rule in question, then the , discretion as to his punishment was in the director of public safety and any extenuation or mitigation must emanate from that source.

The judgment is reversed and final judgment entered for defendants.

Judgment reversed.

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


author: Hurd, P. J. Morgan, J.,

text:
    Scarinzi, Appellee, v. Farkas, Appellant.
    (No. 20497
    — Decided March 24, 1947.)

      Mr. B. D. Nicola, for appellee.

      Mr. J. H. Bead and Mr. J. J. Wodishy, for appellant.
   Hurd, P. J.

This is an appeal on questions- of law from a judgment of the Common Pleas Court of Cuyahoga county in an action wherein a verdict and judgment were rendered in favor of plaintiff in the sum of $2,500 for damages sustained in an automobile accident alleged to have been caused by the negligence of the defendant. There are many grounds of error assigned hut the principal assignments of error are that the court erred in the rejection'and admission of testimony and in its charge to the jury.

The issues were joined upon the amended petition, an amended answer and a reply. The plaintiff, in his amended petition, alleged in part:

“That on or about the 29th day of April, 1942, at about 1:30 p. m., while he was standing on said Denison avenue, an east-bound Denison car stopped on Denison avenue in front of 10009 Denison avenue, a regular designated stopping point for street cars, for the purpose of letting off and taking on passengers; that at the same time one Helen Hlusin was standing-near this plaintiff for the purpose of boarding said street car; that thereupon the said defendant operating his automobile on said street as said Helen Hlusin was starting for said street car, negligently struck the said Helen Hlusin with his said automobile and knocked her against the plaintiff and ran his said automobile against plaintiff’s left leg causing him to fall and break said leg below the knee; that this plaintiff was thereupon taken to a hospital where he received medical care and attention and caused him to remain away from his business for more than seven weeks, at which time he was still suffering from the injuries inflicted by the action of said defendant but was able to perform part of his work.

“The plaintiff, at the time of the injuries suffered by him, was engaged in the business of shoe repairing with a place of business at 10010 Denison avenue; that he was earning and able to earn, clear of expenses, approximately $75 per week which he lost during the seven weeks that he was incapacitated, totaling the sum of- $525; that during said time he had to pay two months rent for said storeroom amounting to $70; that his business suffered by reason- of. being closed during that time, in the sum of approximately $600; that through said injuries and because he was bedridden and inactive at home for the aforementioned seven weeks, he became weakened in body so that his weakened condition contributed to a later infection of his right leg.” (Emphasis ours.)

After detailing ' certain allegations of negligence, the amended petition closed with a prayer for damages in the sum of $11,195.

The original petition was filed on April 28, 1944, and claimed damages for injuries to the left leg only, for which recovery was sought in the sum of $5,195. It was not until March 1, 1946, that the amended .petition was filed claiming additional damages because •o,f the amputation of the right leg which had not been injured in the accident.

It is clear from the evidence set forth in the record that plaintiff had been suffering from sugar diabetes from the year 1920 on, and although certain treatments had been prescribed for him he had not followed the directions given for treatment except for a 'period'of perhaps two weeks. The record shows that in September, 1942, about five months after the accident, he was admitted to City Hospital suffering from an infected ulcer of the right foot, that he was still suffering from diabetes and that it became necessary to amputate his right leg as above stated. Thus it will be noted it became a matter of very great importance as to whether there was a causal relation between the injury to the left leg sustained in the accident, and the later infection and amputation of the right leg.

One of the witnesses for plaintiff was David Steele, an acknowledged X-ray specialist, who had taken X-ray pictures of the left leg long before the infection of the right leg developed. The evidence was clear that the doctor had never examined the patient and while he was on the stand the following ensued.

“Q. Doctor, do you know the history of this man’s case? A. No, I know nothing about'it.

“Q. Since the last X-ray have you seen his left leg? A. No. * * * I would like to say first that 1 am not a specialist in diabetes. I know the disease we call sugar diabetes, in part as a student and in part as a house doctor, but at the present time I know diabetes only as an X-ray man, therefore 1 am not an expert on diabetes. * * * [Emphasis ours.)

“Q. When the lateral space is reduced and when one favors the left leg which has been broken, does that place a greater strain on the right leg, insofar as where one is afflicted with diabetes ? * * * A. I wouldn’t want to say it produced it. I would say it was adding work to a limb that already had an impaired blood supply. * * *

“Q. Doctor, if later infection set in in the lateral side of the foot of the right leg, after the greater use and strain because of the break in the left leg, what is your opinion as to whether the break in the left leg, aggravated the infection and final cutting off of the right leg? A. I think there is a relation.

“Q. What is that? A. I think there is a relation.

“The Court: Re says there is a causal relation.” [Emphasis ours.)

It will be observed from the foregoing, first, that David Steele, by his own admission, had performed only X-ray services; that since he had taken the X-ray pictures he had not seen the patient; that he is not an expert on diabetes; and that he knows diabetes only • as an X-ray man. In addition he did not testify that there was a causal relation between the injury to the left leg and the infection which developed in the right foot requiring amputation, but the trial "judge, by stating “he says there is a causal relation,” attributed an opinion to the doctor which was not shown by his testimony. We believe that was prejudicial error, the natural effect of which would be to influence the jury in believing that the doctor had so testified and that the court was vouching for such testimony. Because of the lack of the qualifications of the doctor as an expert in diabetes, it would seem that he was not competent to testify upon the question in any event.

Thereafter, when the defendant called as his witness one John W. Schuer, who qualified as'an expert on diabetes and testified in answer to a hypothetical question that there was no causal relation between the fracture of the left leg and the amputation of the right leg, the court refused to permit the doctor to give the reasons for his opinion. A proffer was made for' the record that if permitted' to testify the doctor would state the reasons for his opinion.

We believe the exclusion of that testimony constituted prejudicial error because the defendant was entitled as a matter of right to give to the jury whatever benefit might have accrued from the doctor’s explanation of his reasons for his answer. The foregoing circumstances when considered together were highly ■prejudicial to the rights of the defendant because there was an issue as to whether the injury to the left leg had a causal relation to the infection and later amputation of the right leg, when admittedly the plaintiff had been a sufferer from diabetes for many years. In the first instance the effect of the court’s action was to produce on behalf of the plaintiff testimony, which had not been adduced from the witness and in the second instance to deny to a qualified expert witness for the defendant the opportunity to explain the reasons for his conclusion that there was no causal relation between the original injury to the left leg and the later amputation of the right leg.

We now come to a consideration of the charge of the court. In charging the jury on the question of con-tributary negligence the coui’t charged in part as follows:

“The charge of contributory negligence raises a presumption of negligence on the part of the defendant * * * otherwise there would be no negligence to contribute to.”

Later on in the charge the court said:

“In other words in simple language, the plaintiff claims that the defendant was to blame, the defendant says'he was not to blame. He says, ‘1 was someivhat to blame’ and ‘the plaintiff was somewhat to blame also.’ ” (Emphasis ours.)

The majority of this court has serious doubt as to whether the question of contributory negligence was raised by the evidence although it -was raised by the pleadings. In any event, the charge as given was erroneous on the subject of contributory negligence.

The pleading of defendant by way of answer was merely in the alternative in which it was set forth “that if it should be found that the defendant was negligent in any manner which fact of negligence this defendant specifically denies, then upon such finding this 'defendant says the plaintiff was contributorily negligent and that his negligence was the proximate cause of his injuries.”

Such a pleading raises no presumption whatsoever against the defendant and it was erroneous so to charge.

For the reasons stated the majority of the court is of the opinion that error intervened prejudicial to the right of the defendant who was thereby prevented from having a fair trial on the issues joined.

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

Judgment reversed.

■ Skeel, J., concurs.

Morgan, J.,

dissents because in his opinion the errors complained of were not prejudicial. The evidence of liability is overwhelming and the amount of the verdict is sustained by. the admissible credible evidence. ,


author: Hunsicker, J.

text:
    Malia et al., Appellants, v. Wright, Treas., et al., Appellees.
    (No. 1142
    — Decided June 23, 1947.)

      Messrs. Wilcox & Wilcox and Mr. W. G. Stapleton, for appellants.

      ■ Mr. William G. Wickens, prosecuting attorney, for appellees Walter J. Wright, Treasurer, and Frank Ayres, Auditor.

      Mr. Frank A. Stetson, for appellees Arthur Burgess and Clara Burgess.
   Hunsicker, J.

The facts in this appeal on questions of law are as follows:

In 1938 the board provided for by the then Section 5718-1, General Code, met in the auditor’s office in Lorain county, Ohio, and went over the delinquent tax duplicate, from wliicli.it ordered omitted from fore-° closure proceedings and forfeited -to the state parcels of land- — among them the lands in question herein— which in the board’s opinion were not worth taxes, penalties, assessments and interest.

No view of the’ premises was then had, although at least two of the members, with some maps of the allotment' *in which the lots herein were located, visited the allotment in 1937 or 1938 before the meeting of the board to consider the question of foreclosure or forfeiture.

The testimony indicates that at the meeting the board discussed: The character of the allotment in general, because many other lots in the allotment were on the delinquent list; the location of the lots involved herein; the past • experience with similar sales; the nature of the market for real estate in general and vacant lots in particular; and the cost of foreclosure proceedings. The lots herein (three in number) were ordered omitted from foreclosure and forfeited to the state of Ohio, and the statutory procedure was thereafter followed as to forfeiture and • sale. The taxes, assessment, penalties and interest due on each lot at the time of forfeiture were $91.85, the tax value* for each lot was $120, but on reappraisal in 1945, this was reduced to $60 to $80 per lot. On sale the lots brought a total of $340. -

On June 27, 1941, Westlaklan, Inc., the owner at the time of forfeiture, sold the lots here in question to the appellants, although at the time of this sale the lots stood in the name of the state of Ohio as a result of the forfeiture proceedings. On June 28, 1941, appellants entered into a Whittemore delinquent tax agreement with the county, treasurer (No., 6405), paying the taxes for the then current year and 10% of delinquency.

This undertaking by the Malias was defaulted in 1942, payments were made on May 25, 1943, and on July 21, 1944, but the undertaking was marked defaulted again on August 20, 1945, although the property had been sold at forfeiture sale on June 28, 1945.

Mrs. Malia testified she-wrote to the county treasurer for her tax bills and when they were received she would come to Elyria and pay them, but she did admit that the 1942 tax and purported Whittemore installment had not been paid, and that other semi-annual installments of current taxes had not been paid.

In October, 1945, Mrs. Malia inquired of the county treasurer the amount of tax, and was informed the lots had been sold. She also testified that on their first tax bill and those subsequent thereto, and also on the Whittemore undertaking, the property stood in the name of the state of Ohio; and although she did not know exactly what that meant, she knew it was forfeited land; yet she made nó inquiry concerning the ownership being in the state of Ohio.

The action to set the sale aside was then filed on October 30, 1945, and from a judgment - adverse to the appellants, this appeal is taken. Seven assignments of error are presented, which raise two questions:

First, was the forfeiture to the state of Ohio and omission from the tax foreclosure list, as made by the board in 1938, unlawful and contrary to law?

Second, did the Whittemore undertaking No. 6405 that was entered into by the appellants and the county treasurer operate as a stay of the tax forfeiture sale proceedings, thereby rendering unlawful and void the sale of the lots by the auditor on June 28, 1945?

Section 5718-1, General Code, as effective in 1938, provided as follows:

“Before making the certificates provided for in section 5718 of the General Code, the county auditor shall submit the list of lands on the delinquent list and subject to foreclosure, to a board composed of the president of the board of county commissioners, the county auditor and the county treasurer, and if, after investigation, in their judgment and discretion, such board is of the opinion that such list contains property or properties so certified which will not bring upon a sale a sufficient amount of money to pay all taxes, assessments and penalties thereon in arrears, together with costs of foreclosure, such board may order the same to be omitted from the foreclosure proceedings as herein provided; and as to such land so ordered to be omitted, no delinquent land tax certificate shall be made.” (Italics ours.)

In considering that section, we are met with the phrase “after investigation” and the opinion of this court in the case of Taylor v. Ebert, 76 Ohio App., 177, 63 N. E. (2d), 443. In that case, land upon which there was a tax delinquency'of approximately-$30, but which’ was appir ’seel for tax purposes at $430, was ordered forfeited, m pursuance of a rule of the board that large parcels of land should be foreclosed, while small parcels should be forfeited. There was an abuse of discretion by the board, and the following of an arbitrary rule, not provided by statute.

In the case of Urban v. Taylor, 20 Ohio Opinions, 508, 6 Ohio Supp., 225, there was a tax delinquency on two tracts of land which, with penalties and interest, amounted to $85.49. One of the tracts had a dwelling and outbuildings o'n it, and both together were valued at $1,000, yet were sold on forfeiture for the sum of $85.49. There was no investigation and no discretion exercised by the board; the court saying, at page 511 of the opinion:

“The plain provision of the law is that the board use their judgment and discretion, after investigation * # *. Admittedly no investigation was made and, therefore, no discretion could be exercised.”

The facts in the instant case present, as they apply to the matter of investigation,' much different circumstances. The tax delinquency, including penalties, assessments and interest, amounted to $91.85 on each lot, which, together with court costs of foreclosure of $50, would require a sale to be made at $141.85 per lot. At the forfeiture sale the three lots sold for a total of $340. The board, from its past experience, its knowledge of the real estate market, the previous visit of two of the members • to the allotment, the position in the allotment of these lots and the experience with foreclosure sales in the allotment, and the facts disclosed by the tax reports, determined that these lands should be omitted from the foreclosure list.

From the consideration of these facts, we cannot say that the board abused its discretion or that it failed to make an investigation when the lands were ordered forfeited. See, Cech v. Schultz, 132 Ohio St., 353, 7 N. E. (2d), 557.

Coming now to the effect of the Whittemore Act in the instant case, that act (Section 2672-1 et seq., General Code) became effective on March 22, 1939, and provided for the payment of delinquent taxes in ten equal installments.

Appellants received a copy of a purported undertaking under the Whittemore Act with respect to the lands in question herein, showing the lands to be owned by the state of Ohio, but neither the copy nor the original thereof had been signed by anyone. The first payment was made and noted on both the original in the treasurer’s office and the copy which was in possession of appellants. Default in that purported undertaking occurred in 1942, and was noted- on the original as follows: “Defaulted July 30, 1942.”

It should be noted at this point that Section 2672-3, General Code, provides that the owner of real estate, or “the holder of a lien thereon,” may enter into a written undertaking to pay the delinquent taxes, and “so long as such undertaking shall continue to be performed, the lands, * # * shall not be entered on the foreclosure list.” Section 2672-4, General Code, provides that the “person electing to pay delinquent taxes * * * shall thereby undertake in his own behalf and on behalf of all subsequent grantees.” Section 2672-6, General Code, provides in part:

“In case of any default in the payments under the undertaking provided for in this act, the county 'treasurer shall enter on the duplicate the date and the fact of such default. Thereupon such undertaking shall be canceled of record in the office of the treasurer and a certificate of such cancellation shall be given to the county auditor, and such officer * * * shall proceed to enforce the payment and collection of such delinquent taxes * * * in the manner prescribed by the permanent law of-this state therefor * * *.”

Nowhere in 'that act is it provided that an undertaking may be entered into with respect to lands already forfeited to the state. The Legislature having failed to include forfeited lands within the terms of the “Whittemore Act,” the claimed undertaking herein did not operate as a stay of the forfeiture sale proceedings.

The forfeiture of the lands under consideration being regular, and there being no statutory authority for entering into a “Whittemore” undertaking under Section 2672-1 et seq.,. General Code, for forfeited lands, such purported undertaking does not accomplish a stay of the sale of such lands.

We have examined the other claimed errors and find none prejudicial to the appellants.

The judgment of the Common Pleas Court is affirmed.

Judgment affirmed.

Doylb, P. J., and Stevens J., concur.