author: Matthews, J.

text:
    Squire, Supt. of Banks, Appellant, v. The Guardian Trust Co. et al., Appellees.

      (No. 19247
    Decided January 24, 1944.)
    . Mr. Thomas J. Herbert, attorney general, Messrs. Davis c& Young and Messrs. Krueger, Gorman & Davis, for appellant.

      Messrs. Andrews, Hadden & Putnam, Messrs. Dorn & Merry, Messrs. Balter, Hostetler & Patterson, Messrs. Ewing & Heclter, Messrs. Garfield, Baldwin é Vrooman, Messrs. Grossmann, Carter, Hamilton $ Rosenman, Messrs. Simmons, DeWitt S Vilas, Messrs. Squire, Sanders & Dempsey and Messrs. Thompson, Hiñe & Flory, for appellees.
   Matthews, J.

This is an appeal from a judgment dismissing an action, at the plaintiff’s cost, for failure to comply with former orders of the court.

To the plaintiff’s petition, 38 pages in length, the defendants filed motions to make definite and certain, and to separately state and consecutively number the causes of action. Upon the sustaining of these motions, the plaintiff filed an amended petition, which, upon the defendants’ motions, was stricken from the files on the ground that it failed to comply with the court’s order. The second, third and fourth amended petitions met like fates for the same reason. Upon striking the fourth amended petition from the files, the court entered the judgment of dismissal from which this appeal was taken. This fourth amended petition was attacked not only on the ground that it failed to comply with the former order of the court, but also on the ground that it was a sham pleading. The court, however, did not find that such petition was a sham and we think-the record clearly justified the court’s position in that respect. The court based its ruling striking the fourth, amended petition solely on noncompliance with the former order of the court to make definite and certain, and to separately state and number.

The appeal, therefore, requires us to examine and analyze the original order to make definite and certain and to separately state and number, to determine to the extent necessary for a decision of this case whether the original petition was defective in the respects found, and then determine whether this fourth amended petition, which is 380 pages in length and purporting to separately state and consecutively number 97 causes of action, is so charged with the same vice as to be subject to a motion to strike from the files.

The plaintiff, as Superintendent of Banks of the state of Ohio, instituted this action to recover against 63 directors of The Guardian Trust Company of Cleveland losses sustained by the bank during the period commencing January 15, 1923;' and ending June 15, 1933, when the Superintendent of Banks took possession, under authority of Section 710-89, General Code, on insolvency of the bank.

In the original petition, the plaintiff alleged that the defendants, being directors of the bank, “wilfully and knowingly, in violation of the laws of Ohio, or wrongfully, illegally and negligently without exercising ordinary care, diligence, prudence and business judgmeirf and with a careless disregard of the rights of the stockholders, depositors, and creditors of the bank, suffered and allowed, caused, permitted, authorized, acquiesced in, ratified and approved each and all of the following acts and the carrying out of each and all of the following transactions.”

These general allegations were followed by other allegations of concealment of directors’ actions by false and misleading bookkeeping entries, and then •were set forth many specific instances of losses resulting to the bank because of the actions of the defendants as described. Many of the instances related to losses sustained in connection with The Hotel Hollenden Company which, according to the allegations, the bank, through wholly owned subsidiary corporations, owned and operated for almost ten years at a large loss. Other instances related to losses incurred in the operation of The Vincent Building Company, which was a wholly owned subsidiary of The New England Company, which in turn was a wholly owned subsidiary of The Guardian Trust Company. This corporate pyramid was used, according to the allegations, in the' construction of an annex to the Hollenden Hotel. Still other losses resulted from the improper handling of several trusts of which The Guardian Trust Company was a fiduciary of one kind or another¿ and finally the defendants were charged with distributing a large sum as dividends out of capital.

To this 38-page petition about 20 motions were filed, varying somewhat but ¡each seeking an order requiring the- plaintiff to make the petition definite and certain, to strike out and to separately state and consecutively number tbe causes of action. Just one of these motions contained about 90 specifications of asserted defects to be cured. We have not examined the other motions to determine the extent in which they contained distinct grounds of attack. Suffice it to say that compliance with the demands set forth in one motion would require a complete reconstruction of the pleading. The court overruled those parts of the motions which sought to have certain portions stricken out, thus reducing the number of specifications in the one motion by 14, and then entered a blanket order sustaining the motions to separately state and number and to make definite and certain, with the provision that compliance with the order should be in conformity with “memorandum of counsel heretofore ren-' dered.” An examination of this memorandum discloses that the court was of the opinion that the plaintiff had attempted to state as one equitable cause of action what was in reality several legal causes of action.

Confronted with that order, the plaintiff filed an amended petition containing-15 causes of action. This was stricken from the files for failure to comply with the order to make definite and certain and to separately state and consecutively number. A second amended petition purporting to state 60 causes of action, a third amended petition purporting- to state 61 causes of action, and a fourth amended petition purporting to state 97 causes of action were in turn also stricken from the files for the same reason. Upon striking- the fourth amended petition from the files, the court entered a judgment of dismissal.

In view of the manifold objections to the form of the petition and the general and indefinite terms of the order sustaining the objections, it would have been impossible for any one to assert with any confidence that any given amended pleading would comply with the requirements of the court. The progressive increase in the length of the pleadings is mute evidence of the plaintiff’s vain struggle to comply.

In 1 Bates’ New Pleading, Practice, Parties and Forms, 524, it is stated:

“But if the amendment has added facts in a bona fide effort to state a cause of action the motion to strike will not lie, for it is not a proper way to test sufficiency.”

And in Phillips on Code Pleading, 261, it is stated:

‘ ‘ Where an objection to a pleading is based, not upon an irregularity connected with its filing, nor upon a matter pertaining, to its form merely, but upon its alleged insufficiency in matter of substance, the objection must be taken by demurrer, and not by motion to strike from the files.”

This would seem to be particularly appropriate where a litigant is faced with the hazard of a dismissal of his action.

In 18 Corpus Juris, 1181, we find it stated that ‘ ‘ where some of the counts state a good cause of action, the complaint should not be dismissed because the amendment to other counts includes matters which the court had directed stricken. ’ ’

In 1 Bates’ New Pleading, Practice, Parties and Forms, 524, it is said:

“If an order to make a petition definite specifies in what particulars, failure of the amended petition to comply may be reached by motion to strike off. But, if the order failed to specify, the remedy is motion to make more definite and not to strike off for noncompliance with the order. ’ ’

In Long v. Hunter, 48 S. C., 179, 26 S. E., 228, the court reviewed an order striking an amended complaint from the files and dismissing the action for failure to comply with an order to set out each cause of action separately in the form of a “plain and concise statement of the facts.”' In reversing the judgment, the court, at page 182, said:

“The following principles are deducible from the authorities: 1st. When a party gives notice of a motion to make .a complaint definite and certain, the notice should specify in what particulars it should be corrected. 6 Enc. Pl. & Pr., 279; 5 Enc. Pl. & Pr., 336; 2 Wait’s Pr., 487. 2d. The order granting the motion should specify in what particulars the complaint is to •be amended. 6 Enc. Pl. & Pr., 279. 3d. When the order specifies in what particulars the complaint is to be amended, and there is a failure to.comply with the order, the complaint may be struck but on motion. 4th. When the order fails to specify in what particulars the complaint is to be amended, and the allegations' of the amended complaint are uncertain and indefinite, the proper remedy is to make a motion to make the amended complaint certain and definite, but not to strike out the amended complaint on the ground that there had not been a compliance with the order requiring, in general terms, that the complaint be made definite and certain. ’ ’

In 6 Encyclopedia of Pleading & Practice, 279, it is said: “The order granting the motion should direct in what particular the defective pleading is to be amended.”

And in Nischke v. Wirth, 66 Wis., 319, 28 N. W., 342, the court held, as stated in the syllabus: “The notice of motion and the order to make a pleading more definite and certain should state in what particulars amendment is necessary.”

Although it is true that the motions upon which the court acted contained many specifications, neither the journalized order nor the opinion (if that can be considered) indicated that all the specifications of all the motions had been sustained. Indeed it seems that the court was careful to limit its ruling to indicating the broad outlines of a pleading which would be acceptable. This basic indefiniteness projects itself into all the subsequent orders of the court. In 6 Encyclopedia of Pleading & Practice, 878, the rule is stated: “The general rule that an objection must be specifically stated applies to a motion to dismiss.”

In passing upon the validity of the order striking the fourth amended petition from the files and dismiss-' ing the plaintiff’s action, we are not called upon to determine the nature — equitable or legal — of the cause or causes of action set forth in the plaintiff’s fourth amended petition. The only Code requirement is that every cause of action shall be stated in ordinary and concise language, and it makes no distinction between legal and equitable causes.' If the allegations show a breach of duty causing damage, a cause of action is stated. Certainly, the cause of action arising from the dereliction of duty of a corporate director would in times past have been classified as an action at law entitling the corporation to legal relief. If that relief was inadequate, equity would have provided an additional remedy. The plaintiff was privileged, but not required, to invoke that additional equitable remedy. If the fourth amended petition states and numbers one cause of action, equitable or legal, with sufficient definiteness and certainty, then the court was not justified in striking it from the files. ' .

Where a petition contains a statement of a single cause of action, it may be subject to a motion directed to it as an entirety, but we are quite sure that where it contains statements of more than one cause, one of which is good, a motion attacking it as an entirety should not be sustained. One sufficient cause renders it invulnerable to such an attack.

One of the chief objections to the form of the fourth ■ amended petition is that the allegations in the inducement and in causes of action are frequently incorporated in other canses of action by reference, rather than by repetition. This method of pleading has been followed in code states from the beginning. In 41 American Jurisprudence, 365, it is said:

“Under the code system of pleading, however, the prevailing judicial opinion is that in stating several causes of action it is not necessary to repeat every general averment essential to each or common to them all, but that as to such matters reference may be made to distinct allegations in a preceding cause of action, thereby incorporating them in a subsequent cause of action and avoiding useless repetition. • If each paragraph in the plaintiff’s pleading alleges facts forming a legitimate part of the cause of action, it is not subject to demurrer on the mere ground that in itself it does not set out a cause of action. ’ ’

It is true that in Eureka Fire & Marine Ins. Co. v . Baldwin, 62 Ohio St., 368, 384, 57 N. E., 57, and Milliken v. Heddesheimer, Admr., 110 Ohio St., 381, 391, 144 N. E., 264, 33 A. L. R., 53, the court, arguendo, disapproved this form of pleading, but what the court said was not necessary to the decision and the statements are not incorporated in the syllabus. There are other expressions favoring the method (31 Ohio Jurisprudence, 623) and it is now expressly sanctioned by Section 11331, General Code, in which it is provided that “statements in one part of a pleading may be incorporated into another by reference to and adoption therein. ’ ’

With these principles in mind, we examine the fourth amended petition.

After an inducement that sets forth the capacity of the plaintiff to maintain the action, the relation of the defendants as directors to The Guardian Trust Company and the mechanics by which the bank’s business was conducted by the defendants, the plaintiff proceeds to state his causes of action. In doing so, specifically identified allegations are incorporated into subsequent statements of causes of action.

To dispose of this case it will not be necessary to analyze each statement.

The first cause of action sets forth in perhaps unnecessary detail the inception of the relation of the bank to The Hollenden Plotel Company transaction. As we analyze it, while two notes are referred to, only one loss is asserted and that relates to the note for $100,000, upon which an unpaid balance of $89,176.73 remained.

This loss is alleged to have occurred because “each of the directors attended five or more of said meetings, and at such meetings, in violation of his oath, as hereinbefore set forth, in derogation of his duties as director of the bank, without exercising ordinary, or any, care, diligence, or business judgment, with utter disregard for the rights of the depositors, creditors, and stockholders of the bank, with full knowledge of the circumstances above set forth, and without any intention of collecting said loan from The Hotel Hollenden Company, voted in favor of approving and ratifying the action authorizing, and the making of, said loan of $100,000 to The Hotel Hollenden Company. ’ ’

Can it be doubted that if the plaintiff is able to prove that this loss resulted from such conduct a cause of action exists in favor of the shareholders, creditors, and depositors of this bank? The answer to this question seems obvious. A cause of action is clearly stated.

The same observation can be made with reference ' to the following 31 statements of causes of action, the only difference, worthy of notice here, is that the advancement was made in some instances as trustee and in the others out of bank funds. Whether in those instances in which the funds were advanced as trustee any loss resulted to the bank, it is not necessary to determine here.

It is also unnecessary to determine whether the 33rd, 34th and 35th counts state causes of action. No specific loss is alleged, and whether the losses indicated are recoverable damages need not be considered at this time. The 36th count clearly alleges a loss of $175,000 on a guaranty of The Vincent Building Company made by these defendants on behalf of the bank, which it was unauthorized by law to make.

The remaining counts, excepting the last, relate to losses sustained or liabilities incurred by reason of the action of these directors, as set forth in paragraph 23 of the first cause of action, in the bank’s activities in selling its mortgage bonds and land trust certificates to trust estates of which it was fiduciary and in paying dividends out of capital. Specific allegations of dereliction of duty are found in these statements. The last count seems to have been incorporated primarily as the basis for a claim of damages of a general nature. Whether such damages are recoverable need not be decided. Assuming that such count does not state a cause of action either at law or for an accounting, its presence does not make the whole pleading vulnerable to a motion to strike from the files and for a dismissal of the action.

It is noted that none of these counts except the last contains a prayer for relief, but the prayer is no part of the statement of the cause of action. Tiffin Glass Co. v. Stoehr, 54 Ohio St., 157, 163. And where several causes of action are joined, the better practice is to place the prayer at the end of the pleading. 31 Ohio Jurisprudence, 628.

Wo take notice that some of the motions are in the alternative to require the plaintiff to separately state and number and to make definite and certain, in the event the motion to strike -from the files should be overruled. The court, of course, did not pass upon the alternative motion to make definite and certain and we do not pass upon the questions raised except to the extent necessary in order to pass upon the motion to strike and to dismiss.

Our conclusion is that the court erred in sustaining the motion to strike the fourth amended petition from the files and in dismissing the action.

There is another subject which must be considered.

There were 62 defendants originally, 20 of whom were dismissed from the action. Later, the plaintiff moved for leave to file separate fourth amended petitions against 21 of the remaining defendants, and to have separate actions docketed as to each. The court refused this leave. The plaintiff announced at the time that if such leave was refused he would not charge these 21, but would confine his allegations to stating causes of action against the remaining 21, as to whom he had not requested a severance. The fourth amended petition is so confined, and this was followed not by a dismissal of the action as to the 21 named in the fourth amended petition but generally, which, of course, was as to all defendants.

The 21 defendants not named in the fourth amended petition were served with copies of brief by plaintiff, but have filed no briefs, it being contended on their behalf that they were not parties to the action at the time' the dismissal was entered, and, therefore, not parties to this appeal.

It is clear that the plaintiff did not intend to dismiss his action against the 21 defendants not named or cb urged in the fourth amended petition. It would be a distortion of his acts and words to import any such meaning to them. At that very time he was attempting to prosecute an appeal from an order refusing severance in order that he might continue to pursue his remedy under the service of summons or appearance in this action. There was no actual intent to dismiss them. There was no announcement — formal or otherwise — of such an intent. The court records show no such action by the plaintiff. The court took no action and no costs were paid or adjudged. The question presented is whether the filing of this fourth amended petition, ipso facto and contrary to the actual intent, operated as a discontinuance of the action as to the defendants not named in it. There is no statutory provision attaching such effect and we know of no nonstatutory rule that does. The statutory provision relating to dismissals, Section 11586, General Code, is wholly inapplicable to this situation. We believe the Ohio law on the subject of dismissals — voluntary and involuntary— is correctly set forth in 14 Ohio Jurisprudence, 326, Section 11, from which we quote:

“Under subd. (6) of Section 11586, the clerk of the court, where the plaintiff in vacation dismisses an action on payment of costs, is directed forthwith to make an entry thereof on the journal, whereupon the dismissal shall take effect; but the clerk of the court manifestly has no right, under subd. (6), to make an entry of dismissal during a term of the court. Authority, by a familiar rule of construction, to effect a dismissal under subd. (1), must be other than an entry by the clerk. All other applications for dismissal must be made to the court. A plaintiff may appear in open court and apply for a dismissal; and in such case the court has no alternative but to dismiss the case, unless the rights of other parties are involved. Every court speaks through its journal, and no attempt to dismiss a pending case, under Section 11586, becomes effective until an order to that effect is duly entered upon the journal of the court. Moreover, the entry of dismissal in term must be made by the court, and not by the clerk. ’ ’

We are of the opinion that the 21 defendants who ' were not named, as well as the 21 who were named, in the fourth amended petition were parties to the action at the time the judgment of dismissal was entered on March 3, 1943, and are parties to this appeal.

,Now did the court err in refusing to order a severance?

The statutory basis is found in Section 11312, General Code, in which it is provided:

“When a demurrer is sustained on the ground of misjoinder of several causes of action, on motion of the plaintiff the court may allow him, with or without costs, tó file several petitions, each including such of the causes of action as might have been joined; and an action shall be docketed for each of the petitions, and be proceeded in without further service.”

It is argued that there has been no demurrer in this case and that the sustaining of a demurrer on the ground of misjoinder is a condition precedent to the right to ask for a severance. We do not think this argument is valid. It regards the means by which the reason for the severance is disclosed rather than the' reason itself. The reason the severance is desired is that the defendant or defendants object to having controversies affecting different parties commingled and tried together. How that objection is made known should be, and we think is, immaterial.

It is true that the statute mentions demurrer, as the means by which the objection is made, and that is the appropriate method and the only method expressly provided by statute. But Ohio courts, while not approving the practice, have considered issues raised by motions which strictly speaking should have been raised by demurrer, and have done this to facilitate justice and under the mandate to disregard insubstantial defects. 31 Ohio Jurisprudence, 853 et seq.; State, ex rel. Smith, v. Young, Judge, 137 Ohio St., 319, 29 N. E. (2d), 564.

Now can it be doubted that, when a court permits the issue of misjoinder to be raised by motion and sustains it, the situation thus created calls for a consideration of the right to a severance? If the court treats the motion as a demurrer to invalidate the plaintiff's petition, should it treat it differently in determining the applicability of Section 11312, General Code? Or should a defendant by styling his method of attack a motion instead of a demurrer be permitted to prevent the application of the section? To do so would sacrifice substance for form and could be done only by complete disregard of the purpose of the section. The General Assembly had no such intent.

When a defendant objects to a misjoinder, no matter how, and the court sustains the objection, an occasion arises for a severance, if requested. We can think of no circumstances justifying a denial of the right where it appears that meritorious causes of action may exist.

But before a motion may be treated as a demurrer on the ground of misjoinder, it must present the same issue which would have been presented by such a demurrer. By demurring on the ground of misjoinder, a defendant in effect says that he should not be required to answer or otherwise proceed in the action because of the misjoinder. And the effect of sustaining his objection is to effect the dismissal of the action as to the objecting defendant or the elimination of all causes of actions against codefendants to which he is not a party. It is not a mere objection to the form of stating causes of action. The causes of action'may be flawlessly alleged. The objection is that the causes of action are improperly joined.

Now the motions of the defendants do not purport to be on the ground that causes of action are improperly joined. They are motions to make definite and certain and to separately state and number. It is true that the defendants seek to have causes of action so stated as to show which defendants are charged with liability thereby, and separately stated and numbered, so that each defendant can determine which causes of action to plead, demur or move to, but the motions do not indicate that the defendants are objecting to being called upon to defend an action which is commingled with other actions against other defendants, with which they are not concerned. It is for that reason we are of the opinion that the court would not be justified in treating these motions as demurrers on the ground of misjoinder and the orders sustaining them as a ruling that causes of action against several defendants were improperly joined. All the court required was that the petition be made definite and certain and the causes of action separately stated and numbered. Although .the subject of misjoinder was discussed in reaching a conclusion to sustain the motion, there was no motion raising that issue and no order invalidating the pleading on that ground.

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

Judgment reversed.

Ross, P. J., and Hildebbant, J., concur.

Ross, P. J., Hildebbant and Matthews, JJ., of the First Appellate District, sitting by designation in the Eighth Appellate District.


source: Caselaw Access Project

author: Miller, P. J.

license: Public Domain

text:
    Frecker, d. b. a. Scioto Valley Dairy & Ice Cream Co., Appellee, v. City of Dayton et al., Appellants.

      (No. 2018
    Decided February 19, 1949.)

      Mr. Nicholas F. Nolan and Mr. J. Paul McNamara, for appellee.

      Mr. Herbert S. Beane, city attorney, Mr. M. J. Gilbert and Mr. Joseph P. Duffy, for appellants.
   Miller, P. J.

This is an appeal on questions of law and fact from a judgment of the Court of Common Pleas of Montgomery County, finding municipal ordinance No. 16059 of the city of Dayton, Ohio, to be null and void and in violation of the Constitution of the United States and of the state of Ohio, and granting a permanent injunction restraining its enforcement. ■

The ordinance under consideration provides:

“An Ordinance. Prohibiting in the interest of public safety, the sale in the parks, and on or from the streets, sidewalks, and alleys of the city of Dayton, Ohio, of certain commodities herein enumerated.

“Whereas, the, commission of the city of Dayton, Ohio, deem it necessary and in the public interest to reduce the hazards of injury to. young children and to avoid traffic congestion in the parks, and on the streets, sidewalks and alleys of the city of Dayton, to prohibit the sale of certain commodities hereinafter enumerated ; and.

“Whereas, it is necessary for the immediate preservation of the public peace, property, health and safety, that this ordinance take effect at an early date; therefore

“Be it ordained by the commission of the city of Dayton:

“Section 1. That the Code of General Ordinances of the city of Dayton, Ohio, be supplemented by the enactment of Section 288-1 and 288-2 to provide as follows:

Sec. 288-1. Excepting in any market stands, which now or may hereafter be licensed under the provisions of Sections 156 to 196, General Code, both inclusive, and park concessions, now or hereafter granted by the city of Dayton, no person, firm or corporation, shall sell or offer to sell, in the parks, and on or from the streets, sidewalks and alleys of the city of Dayton, Ohio, any ice cream in any form, popsicles, ice sherberts or frozen desserts of any kind, any and all kinds of soft drinks, such as pop, cola drinks or others, candies of any kind, hot dog or other sandwiches, and peanuts, popcorn, or other similar products.

“Sec. 288-2. Penalty.' Any person, firm or corporation, found guilty of the violation of this Ordinance, shall be deemed guilty of a misdemeanor, and shall upon conviction thereof, be fined not less than twenty-five dollars ($25) and the costs of prosecution, or more than fifty ($50) dollars and the cost of prosecution, and each violation hereof shall constitute a separate offense.

‘‘Section 2. For the reasons stated in the preamble hereof, this ordinance is declared to be an emergency measure and shall take effect immediately upon its, passage.”

The petition, after alleging the capacity of the various defendants, alleges:

“Plaintiff,' Edward Y. Freeker, does business as Scioto Yalley Dairy & Ice Cream Company and has his principal place of manufacturing at 555 East Main St., in the city of Columbus, Ohio.

“Plaintiff is now, and for more than five years past has been, engaged in the manufacture and sale, at retail, of ice cream, ice cream products, frozen desserts and frozen confections (hereinafter referred to as ‘products’), and is duly licensed to, engage in such business under the provisions of Section 12730-1 et seq., General Code. At all times herein mentioned, the plaintiff has engaged in the sale of said products in the manner herein described in the city of Columbus, Ohio, and part of the time, during the past five years, plaintiff has engaged'in the sale of said products in the cities of. Springfield, Ohio, Zanesville, Ohio, Portsmouth, Ohio, Marion, Ohio, Bucyrus, Ohio, and Chillicothe, Ohio.

“Plaintiff has in' excess of $100,000 invested in plant and equipment in Columbus, Ohio, for the manufacture of said products.

“Since December 1, 1945, plaintiff has invested approximately $30,000 in vehicular equipment and other expenses to establish and operate his business in the city of Dayton, Ohio.

“Plaintiff’s products are manufactured, transported, sold and delivered under sanitary conditions, and such products are wholesome and nourishing food products.

“Plaintiff’s products are packaged in separate, iridividual sanitary containers.

“Plaintiff sells the aforesaid products directly to the consuming' public through salesmen and agents, who sell said products from vehicles propelled throughout the public streets of the aforesaid cities. Said vehicles are sanitary refrigerated, foot-propelled tricycles and handcarts.

“Plaintiff’s employees and agents make sales of the products from vehicles at the curb of the public streets or away from the vehicles on the sidewalks, and on private property.

“Plaintiff’s agents and employees are specially trained as to safety and sanitation in the sale of plaintiff ’s products.

‘ ‘ At no time during the aforesaid period, did any of plaintiff’s agents or employees or any person doing business with plaintiff’s agents or employees, sustain any personal injury of any kind as a result of the operation of plaintiff’s business.

“By using only good quality materials and by employing precaution to insure sanitation, quality and perfection in its products, and by exercising care and safety in its method of merchandising said products, plaintiff has built up an extensive and profitable business.

“On June 6, 1946, plaintiff was granted a special permit pursuant to the provisions of Section 752 of the Codified Ordinances of the city of Dayton, Ohio, authorizing plaintiff to sell and offer for sale, the aforesaid products for human consumption within the limits of the city of Dayton, Ohio.

“Plaintiff intends to operate his business of selling the aforesaid products in the manner herein described, from vehicles propelled through the streets of the city of Dayton, Ohio.

“On June 5, 1946, the City Commission of the city of Dayton, Ohio, enacted Ordinance No. 16059, which provides as follows:

Í £ S' S' -Yt

“It is the duty of defendants, and the defendants will, unless restrained and enjoined by this court, enforce the aforesaid ordinance against plaintiff, his agents and employees, and arrest or cause the arrest of plaintiff, his agents and employees.

‘ ‘ The enforcement of the aforesaid ordinance by the defendants against plaintiff, his agents and employees, will prohibit plaintiff from operating his business as above described in the city of Dayton, Ohio.

“The aforesaid ordinance is invalid, contrary to law, and the Constitution of the United States and the Constitution of the state of Ohio, and is a violation of plaintiff’s rights under law and said Constitutions.

“The enforcement of said ordinance against the plaintiff, his agents and employees, will deprive plaintiff of his recognized and legal right to engage in a lawful and legitimate business, and will deprive the plaintiff of his liberty and property without due process of law and will unfairly and unlawfully discriminate against the plaintiff.

“Plaintiff’s business will suffer irreparable damages if said ordinance is enforced.

“Plaintiff has no adequate remedy at law.

“Second Cause of Action.

“Plaintiff for his second cause of action adopts and incorporates herein, as though fully rewritten, all the allegations of the first cause of action.

“The aforesaid ordinance No. 16059 was not enacted by the City Commission of the city of Dayton, Ohio,, in the interest of general public, but said ordinance was enacted by the City Commission of the city of Dayton, Ohio as a legislative measure to protect the business and profits of resident merchants who own and operate businesses located in the city of Dayton, Ohio, and who engage in the sale of .the same or similar products manufactured and sold by the plaintiff.

“The enforcement of the aforesaid ordinance will have the effect of stifling competition and will unfairly and unlawfully discriminate against the plaintiff to the benefit, favor and advantage of the resident merchants located in the city of Dayton, Ohio, who sell the same or similar products by merchandising and selling such products in a different manner.”

The answer is a general denial, and avers that the ordinance was adopted in the exercise of the power conferred, by the Constitution and laws of the state of Ohio, upon the defendant, city of Dayton, to provide for the' safety of its people in general and particularly for the safety of the younger children to whom plaintiff’s products are peculiarly attractive; that the object of the ordinance is within the sovereign power of the city of Dayton, and that the means provided is calculated to accomplish that effect; that the ordinance is reasonable, not arbitrary or discriminating in any manner; and that it is intended to promote the health, safety and general welfare of the public.

The sole ■ question presented is the validity of the ordinance. The plaintiff urges that its enforcement will prohibit him from doing business in the city of Dayton, thereby destroying a valuable property right; that no effort has been made to regulate this business if the public welfare requires additional legislation; that the real purpose of the ordinance is the protection of resident merchants; and that the same is in violation of the Constitutions of the United States and of the state of Ohio.'

After a careful examination of the record in this case we find that the evidence supports all the material allegations of the petition. The defendants offered only-one witness, a police officer of the city of Dayton, who qualified as a traffic expert. He-testified that in his opinion the sale of the articles upon and from the streets of Dayton would constitute a traffic hazard and be especially dangerous to children. However, the evidence does not support this conclusion and therefore no weight can be attached to it. The uncontradicted, evidence in the record is that after many years of operation in various cities of Ohio, including the city of Dayton, no person has ever been injured while engaged in the purchase of any of plaintiff’s .products. Even though it should be conceded that the sale of these articles might be a traffic hazard and that others in the same business may not conduct their business with the same degree of care, the proper approach to a solution of the problem would be by regulation of the manner in which the business is conducted and not to destroy a lawful business.

In the enumeration of powers granted to cities, provision is made in Section 3670, General Code, for licensing and regulating peddlers and itinerant vendors. However, Section 3672, General Code, further provides that no municipal corporation may require of the owner of any product of his own raising, or of the manufacturer of any article manufactured by him, license to vend or sell in any way, by' himself or agent, any such article or product. These enactments clearly recognize peddling as a lawful occupation. If a city cannot even require a license from certain vendors under Section 3672, General Code, and the plaintiff comes under this classification, it should be apparent that it does not possess the far greater power of completely destroying such a business.

However, it is urged by the defendants that the ordinance is valid by reason of Section 3634, General Code. This section is found in the chapter which enumerates the powers granted to municipal corporations and it is headed “Auctioneering.” It provides as follows:

“To regulate auctioneering; to regulate, license or prohibit the sale at auction of goods, wares and merchandise or of live domestic animals at public places within the corporation; and to regulate, license or prohibit the selling of goods, merchandise or medicines on the streets.”

This section and Section 3672, General Code, are in pari materia and must be construed together, giving effect to both sections if possible. In so doing, Section 3634, General, Code, must be construed as being applicable to auctions and other sales made in a somewhat similar manner, to wit, by ‘‘ street fakirs, ” “ medicine men, ’ ’ etc., who operate from a fixed location in a street, get a crowd to gather around them and then proceed to give a lengthy sales talk on the merits of their product. Both are salesmen, in fact, one selling through competitive bidding and the other fixing his own price on his commodity. Under this interpretation, full force and effect can be given to both sections. We therefore hold that Section 3634, General Code, does not confer upon the city of Dayton the power to enact the ordinance under consideration. It is well established that a city cannot enact an ordinance which is in conflict with general law. The ordinance is not in harmony with Section 3672, General Code.

A further reason that we consider the ordinance invalid is that it violates the property right of the plaintiff which is constitutionally protected against unwarranted and arbitrary interference by legislative bodies. The plaintiff’s right to pursue this occupation is protected by Sections 1 and 16, Article I of the Constitution of Ohio, and by the Fourteenth Amendment to the federal Constitution.

In Meyer v. Nebraska, 262 U. S., 390, 67 L. Ed., 1042, 43 S. Ct., 625, Mr. Justice McBeynolds, speaking for the Supreme Court, stated:

“The problem for our determination is whether the statute as construed and applied unreasonably infringes the liberty guaranteed to the plaintiff in error by the Fourteenth Amendment. . ‘No state shall * * * deprive any person of life, liberty, or property, without due process of law. ’

' ‘ ‘ While this court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, * * * and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men. * * * [Citing cases.] The established doctrine is that this liberty may not be interfered with, under the guise of protecting the public interest, by legislative action which is arbitrary or without reasonable relation to some .purpose within the competency of the state to effect. Determination by the legislature of what constitutes proper- exercise of police power is not final or conclusive but is subject to supervision by the courts. ’ ’

In Terrace v. Thompson, Atty. Genl., 263 U. S., 197, 68 L. Ed., 255, 44 S. Ct., 15, it is stated in paragraph six of the syllabus, as reported in L. Ed.:

‘ ‘ The right to earn a livelihood by following the ordinary occupations of life is protected by the Constitution. ’ ’

See, also, Yick Wo v. Hopkins, Sheriff, 118 U. S., 356, 30 L. Ed., 220, 6 S. Ct., 1064; Olds v. Klotz, 131 Ohio St., 447, 3 N. E. (2d), 371; and City of Cincinnati v. Correll, Sheriff, 141 Ohio St., 535, 49 N. E. (2d), 412.

We do not think it can be successfully urged that this ordinance comes within the police power granted to municipalities under Section 3, Article XVIII of the Ohio Constitution. This section provides:

“Municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws. ’ ’

It will be noted that the constitutional grant of power uses the word, regulations, ’ ’ and not the word, “prohibitions.” “Regulation” does not by any ordinary or usual definition include i“prohibition.” On the contrary the grant of power to regulate would seem to negative the power to prohibit. Under the title, “Municipal Corporations,” 37 American Jurisprudence, 909, Section 280, it is stated that “express authority to regulate negatives by implication the power to prohibit. The power to regulate implies the existence, and not the destruction, of the thing to be controlled.”

The Ohio Supreme Court in Bronson v. Oberlin, 41 Ohio St., 476, held' that the grant to a municipality' of the power to regulate the sale of intoxicating liquors did not include the power to prohibit such sale.

Section 3632, General Code, grants to municipalities power “to license and regulate the use of the streets by persons who use vehicles, or solicit or transact business thereon * * *.”

Here again the word, regulate,” not “prohibit” is used. We recognize that the term, regulation,” has been construed to include prohibition” when the object of the legislative regulation is an inherently evil occupation, trade or business.

In Eighth Avenue Coach Corp. v. City of New York, 286 N. Y., 84, 94, 35 N. E. (2d), 907, it is stated:

“When regulation becomes destruction, it ceases to be regulation.”

See, also, N. J. Good Humor, Inc., v. Board of Commrs., 124 N. J. L., 162, 11 A. (2d), 113.

In De Berry v. City of La Grange, 62 Ga. App., 74, 8 S. E. (2d), 146, the court stated:

“As we have said before, the power to regulate such a business is not the equivalent of the power to destroy. ”

In State v. Brown, 135 Me., 36, at page 40, 188 A., 713, the Supreme Court stated, in dealing with a peddling exclusion ordinance:

“Under a general power to regulate and license, a municipality cannot, directly or indirectly, entirely prohibit a useful occupation or privilege.”

It is further urged by the plaintiff that even if Section 3 of Article XVIII of the .Ohio Constitution should be construed to include the power to prohibit, the power is subject to the limitation that the exercise of it must be reasonable.- This limitation has been stated by the Supreme Court of Ohio in the cases of Froelick v. City of Cleveland, 99 Ohio St., 376, 124 N. E., 212; Olds v. Klots, supra; and City of Cincinnati v. Correll, supra.

We are of the opinion from the evidence submitted that the ordinance is unreasonable in that it destroys a lawful business instead of attempting to regulate it. There is no evidence that prohibition as distinguished from regulation is essential to the public welfare. The means adopted are not reasonable and appropriate to the professed end.

In the case of Schul v. King, Chief of Police (Ohio), 70 N. E. (2d), 378, the facts are quite similar to those in the case at bar. Speaking on this subject the court said:

“We find, even after giving consideration to the presumption of constitutionality which attends legislation, that this ordinance has no real or substantial relation to the safety, health or general welfare of the public. We find that this enactment is completely destructive of the plaintiff’s lawful business and is indefensible as a valid exercise of the police power.

‘ ‘ The record in this case shows conclusively that the city, prior to the adoption of this ordinance, made not the slightest attempt to adopt measures calculated to regulate, so as to prevent, whatever abuses or objections attended plaintiffs’ pursuit of their business. Prohibition of a lawful business is not justified even when all remedies for the prevention of the evil in connection with the business prove defective.”

See, also, Adam v. Tanner, Atty. Genl., 244 U. S., 590, 61 L. Ed., 1336, 37 S. Ct., 662; Frecker v. City of Zanesville (Ohio), 72 N. E. (2d), 477. The appellants cite the case of X-Cel Dairy, Inc., v. City of Akron, 63 Ohio App., 147, 25 N. E. (2d), 700, where the court held a similar ordinance to be neither discriminatory nor arbitrary. An examination of that case discloses that no testimony was taken and that the same was submitted upon an agreed statement of facts. These facts are not reported, and it can not be said that they are on all fours with the facts in the case at bar. It further appears from that case that the only question considered was whether the legislation was unreasonable and discriminatory. It did not consider the same legal propositions supporting the. invalidity of the ordinance which have been presented in this case, and it cannot, therefore, be said to be controlling.

For the foregoing reasons our judgment will be the same as that in the trial court.

Judgment accordingly.

Hornbeck and Wiseman, JJ., concur.


author: Per Curiam.

text:
    Golden, Appellant, v. The Dow Drug Co. et al., Appellees.
    (No. 7233
    Decided May 1, 1950.)

      Mr. Robert G. McIntosh, for appellant.

      Messrs. Merland, O’Meara, Santen £ Willging and Messrs. Rendigs, Fry £ Kiely, for appellee Dow Drug Company.

      Mr. Don Burkholder, for appellee Charles G. Mul lane.
   Per Curiam.

The appellant contends that the court erred in refusing to give a special charge defining the duty of an occupier of premises abutting on a public sidewalk and ending with the statement that ‘ if a potentially dangerous condition is created or negligently maintained, such occupier is liable in damages to a pedestrian. ’ ’

The court was justified in refusing to give this charge for the following reasons:

(1) It is an abstract statement which a court may always properly refuse to give.

(2) The mere creation or maintenance of a condition “potentially” dangerous without reference to any other consideration would not create a liability.

(3) The special charge entirely omits the requirement of proximate cause.

Appellant contends also that the court erred in refusing to give another special charge which was not subject to the objection of being abstract, but which contained the other objectionable features of the first charge.

Appellant contends also that the court should not have submitted the issue of contributory negligence. This incident took place in midday. The door adjoining the sidewalk was in full view. It was there to furnish ingress and egress to the room. Can it be said that a reasonably careful person would not have anticipated that it would be used and taken that into consideration in passing? ' We do not think so. Whether an ordinarily careful person would have anticipated the opening of the door or the exit of a person, and guarded against a collision, it seems to us was for the jury to determine.

We are of the opinion that the issues were fairly submitted to the jury and that no prejudicial error intervened.

For these reasons, the judgment is affirmed.

Judgment affirmed.

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


author: Htt,perra nt, J.

text:
    Green, Appellant, v. Acacia Mutual Life Ins. Co., Cross-Appellant. (Two cases.)
    (Nos. 7237 and 7238
    Decided May 15, 1950.)

      Mr. Walter K. Sibbald, for appellant.

      Messrs. Marble & Vordenberg, for cross-appellant,.
   Htt,perra nt, J.

In these two cases heard together, in which there are cross-appeals, plaintiff recovered verdicts upon which judgments were pro forma entered for the face amount of two insurance policies, issued upon the life of one George C. Green.

' Plaintiff appeals from the following entry identically made during term in each case:

“This cause being heard'on defendant’s motion to set aside the verdict and judgment herein and to grant a new trial, was argued by counsel and submitted to the court; on consideration whereof the court, having been requested by plaintiff to state the grounds of the finding, finds said motion well taken on the grounds that there is newly discovered evidence material for the defendant and because the verdict and judgment are manifestly against the weight of the evidence, and that the motion should be sustained.

“It is therefore ordered that the verdict and the judgment entered herein be, and the same are hereby set aside and vacated and a new trial of the cause is granted.”

Defendant’s cross-appeals are from the refusal of the trial court to sustain its motions for judgment made at the close of all the evidence and for judgment non obstante veredicto.

Under the Constitution and statutes of Ohio in existence before September 30, 1947, an appeal could not be taken from the granting- of a motion for new trial unless the court, in granting the motion, abused its discretion.

Under the former Constitution and statutes it was judicially determined in Hoffman v. Knollman, 135 Ohio St., 170, 20 N. E. (2d), 22:

“2. An order of a trial court setting aside a general verdict of a jury and granting a new trial is not a final determination of the rights of the parties and is not, therefore, a judgment or final order re viewable by the Court of Appeals, unless it clearly appears that the trial court has abused its discretion in granting such order.

“3. The jurisdiction of the Court of Appeals is'conferred by Section 6, Article IV of the Constitution, and cannot be enlarged or curtailed by legislative action.

“4. The amendment of Section 12223-2, General Code (117 Ohio Laws, 615), effective August 23, 1937, providing that ‘vacating or setting aside a general verdict of a jury and ordering a new trial, is a final order, ’ would, if given effect, enlarge the jurisdiction of the Court of Appeals, and is, therefore, in conflict with Section 6, Article IV of the Constitution.”

Effective January 1, 1945, Section 6, Article IV of the Constitution, was amended to read in part:

“The Courts of Appeals shall have original jurisdiction in quo warranto, mandamus, habeas corpus, prohibition and procedendo, and such jurisdiction as may be provided by law to review, affirm, modify, set aside, or reverse judgments or final orders of boards, commissions, officers, or tribunals, and of courts of record inferior to the Court of Appeals within the district.” Effective September 30, 1947, Section 12223-2, General Code, was amended to read:

‘ ‘ An order affecting a substantial right in an action when in effect it determines the action and prevents a judgment, or an order affecting a substantial right made in a special proceeding, or upon a summary application in an action after judgment, or an order vacating or setting aside a judgment and ordering a new trial, is a final order which may be reviewed, affirmed, modified or reversed, with or without retrial, as provided in this title.

“When a court makes such order granting a new trial, setting aside or vacating such judgment, the court upon the request of either party, shall state in the order the grounds upon which the new trial is granted and the judgment vacated or set aside.”

Section 11578, General Code, has been amended so that as to actions commenced after October 11, 1945, the effective date of such amendment, a motion for new trial is now addressed to the judgment pro forma entered by the court, when approved in writing and filed for journalization, rather than as before to the verdict of the jury or decision of the court.

Also effective October 11, 1945, the statutory definition of new trial in Section 11575, General Code, was made to read:

“A new trial is a re-examination, in the same court, of the issues, after a final order, judgment or decree by the court. ’ ’

We here consider whether under existing law plaintiff may predicate his appeals on the orders granting new trials, irrespective of the manner in which the trial court exercised its discretion in granting the same.

In Youngstown Municipal Ry. Co. v. City of Youngstown, 147 Ohio St., 221, 70 N. E. (2d), 649, it was held:

“Section 6 of Article IV of the Constitution of Ohio, as amended November 7,-1944, empowers but does not require the General Assembly to change the appellate jurisdiction of the Courts of Appeals.

“Unless and until there is such legislative action, the appellate jurisdiction of the Courts of Appeals remains as it was at the time the amendment was adopted.”

It will be noted that the amended Constitution limits the power of the Legislature to making provisions for review of “judgments and final orders” only. We take it that the terms, “judgments and final orders,” as used in the 1944 constitutional amendment have the meaning attributed to them by valid legislative definition and judicial construction obtaining at that time. Therefore, any order of board or court lacking in the essential attributes of a judgment or final order as those terms were understood and used in the 1944 amendment to the Constitution may not now be clothed with those attributes by mere declaration on the part of the Legislature. Any order, not a judgment, interlocutory in character or lacking in finality, is still not an appealable order and there exists no constitutional grant of power in the Legislature to make it so.

In McAtee v. Western & Southern Life Ins. Co., 82 Ohio App., 131, at page 135, 81 N. E. (2d), 225, this court said:

“The Court of Appeals, under the 1912 amendment of Section 6, Article IV of the Ohio Constitution, was given jurisdiction to review only ‘judgments’ of courts of record inferior to the Courts of Appeals. By judicial construction, this term, ‘judgments,’ was extended to include such ‘final orders’ as had the dignity of judgments at the time of the adoption of the 1912 amendment. Chandler & Taylor Co. v. Southern Pacific Co., 104 Ohio St., 188, 135 N. E., 620; Pilgrim Distributing Corp. v. Galsworthy, Inc., 148 Ohio St., 567, 572, 76 N. E. (2d), 382.

“By an amendment to Section 6, Article IV of the Constitution of Ohio, the Legislature was given full power to provide for the review of ‘judgments and final orders’ of courts of record inferior to the Court of Appeals. This power was not as wide as that conferred by the Constitution of 1851 upon the Circuit Courts, which provided that the Circuit Courts should have ‘such appellate jurisdiction as may be provided by law.’ Even when the Legislature acts it will be limited to provisions for review of ‘judgments and final orders. ’ And the meaning of those terms as used in the amendment will be limited as before by the scope of their definition as understood and accepted at the time of the adoption of the amendment.

“The Legislature can no more designate an order final, which is not so in fact, than could it in the past, or now denominate an action a chancery case which did not meet the requirements specified by judicial construction. Borton v. Earhart, 144 Ohio St., 334, 59 N. E. (2d), 37.”

It appears that under the 1944 Constitutional amendment, while the Legislature might modify the jurisdiction of the Courts of Appeals with reference to judgments and final orders, it still may not enlarge that jurisdiction to include orders other than those coming within the true definition of judgments and final orders.

We refer to the entire opinion of Hoffman v. Knollman, supra, as pertinent to the consideration here and quote from page 181:

“The Constitution is the supreme law; it is the expression of the will of the people, subject to amendment only fyy the people, and neither the Legislature by legislative enactment, nor the courts by judicial interpretation, can repeal or modify such expression or destroy the plain language and meaning of the Constitution, otherwise there would be no purpose in having a Constitution.

“Though this court has interpreted the term ‘judgments’ so as to include ‘final orders,’ it has limited its application to acts or decrees of the court which give final effect to the central purpose or some independent branch of the litigation, finality being the touchstone in the determination of that quality.

“Merely applying a name to an object or thing does not change its character. It is self-evident that the Legislature has no power to increase the scope of the jurisdiction of the Court of Appeals by enlarging the definition of ‘final order,’ unless such definition or specification of the term can still be construed to be the equivalent of ‘judgment.’ ”

The procedural change requiring entry of the judgment first, the motion being directed at that judgment, is incidental only and cannot change the character of the action of the trial court in granting the motion.

The fact that in granting the motion the pro forma judgment is vacated does not change the character of the action of the trial court so as to provide a foundation for review. In Chandler & Taylor Co. v. Southern Pacific Ry. Co., supra, the second paragraph of the syllabus is:

“An order vacating a default judgment upon motion of the defendant, filed at the same term, but more than three days after its rendition, is not a final determination of the rights of the parties and is not reviewable unless the court abuses its discretion in making it. ’ ’

At page 193, it is stated:

“The motion for vacation was made at the same term at which the judgment was rendered. Was the order of vacation though made at a subsequent term a final order which is subject to review? When the defendant filed its motion to vacate, its rights were fixed at that time, although its motion was not disposed of until after the term had expired. (Niles v. Parks, 49 Ohio St., 370 [34 N. E., 735].,) During that term the court had control of its journal entries, and any order made by it vacating a judgment and granting a new trial would not be erroneous unless there was an abuse of discretion upon the part of the court. First Natl. Bk. of Dunkirk v. Smith, supra [102 Ohio St., 120, 130 N. E., 502].”

Again, at page 195, i't is stated:

“Under the principle laid down in the Continental and Dunkirk Bank cases, supra, a motion for vacation filed during the term the default judgment was rendered was held to be equivalent to a motion for a new trial, and the order of the court was .not subject to error proceedings unless there was an abuse of discretion in the order vacating the judgment.”

The generally accepted definition of a final order is, “An order affecting a substantial right in an action, when in effect it determines the action and prevents a judgment.” An order granting a new trial has no such effect, so that it appears the statute itself, Section 12223-2, General Code, is inconsistent in attempting to include such an order within the definition.

2 American Jurisprudence, 860, defining final order states:

“A judgment, order, or decree, to be final for purposes of an appeal or error, must dispose of the cause, or a distinct branch thereof, as to all the parties, reserving no further questions or directions for future determination. It must finally dispose of the whole subject-matter or be a termination of the particular proceedings or action, leaving nothing to be done but to enforce by execution what has been determined. In other words, a final judgment is one which operates to divest some right in such a manner as to put it beyond the power of the court making the order to place the parties in their original condition after the expiration of the term; that is, it must put the case out of court, and must be final in all matters within the pleadings. ”

The orders granting new trials fail to meet this test.

From the foregoing, we conclude that the order in each case, granting a new trial, herein appealed from, does not in effect, determine the action and prevent a judgment, and is not, therefore, a judgment or final order reviewable by the Court of Appeals, unless it clearly appears that the trial court abused its discretion in granting the same.'

The amendment of Section 12223-2, General Code, effective September 30, 19.47, providing that “an order vacating or setting aside a judgment and ordering a new trial, is a final order, ’ ’ would, if given effect, enlarge the jurisdiction of the Court of Appeals to a review, of other than judgments and final orders, to which the power of the Legislature is limited, and is, therefore, in conflict with Section 6 of Article IV of the Constitution.

As to the cross-appeals, an examination of the record discloses no errors prejudicial to the defendant.

Finding no abuse of discretion on the part of the trial court in vacating and setting aside the judgments and granting the motions for new trials, the appeals stand dismissed, as not being predicated upon a final order.

Finding this judgment in conflict with the judgment of the Court of Appeals of the Eighth Appellate District of Ohio in the case of Haffner v. Schmeidl, 87 Ohio App., 143, 90 N. E. (2d), 700, 56 Ohio Law Abs., 77, we hereby certify the record in this case to the Supreme Court of Ohio for review and final determination.

Appeals dismissed.

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


text:
    Morton, Appellant, v. Lutchin, Appellee.
    (No. 7248
    Decided May 15, 1950.)

      Mr. George S. Hawke, for appellant.

      Mr. Joseph Schwarts, for appellee.
   Per Curiam.

The plaintiff, an infant, purchased an automobile from the defendant. Upon arriving at majority, he disaffirmed the contract and demanded a return of the sum paid the defendant. This was refused because the plaintiff could not return the automobile, the same having been surrendered to a finance company upon its demand therefor and title transferred by plaintiff to it.

The general rule in Ohio is that an infant may rescind his contract not for necessaries and, upon disaffirmance, recover what he has paid. 21 Ohio Jurisprudence, 889, Section 28. The record fails to show the automobile was a necessity.

It is stated in 21 Ohio Jurisprudence, 896, Section 35, that misrepresentation as to a minor’s age does not preclude disaffirmance. However, in Mestetzko v. Elf Motor Co., 119 Ohio St., 575, 165 N. E., 93, it is held in the fourth paragraph of the syllabus:

“Where an infant purchases personal property not a necessity and as an inducement to the vendor to make the sale represents himself to be of lawful age and thereby deceives the vendor and causes the vendor to believe that he is in fact of lawful age and the contract is fair and free from fraud or other imposition and the infant elects to rescind upon reaching majority and sues to recover back the full amount paid without restoring the property purchased, the vendor may counterclaim as damages the fair value of the property not in excess of the purchase price if not restored, or, if restored, then the deterioration in value by use and abuse.”

The' defendant filed a counterclaim for the exact amount of the plaintiff’s claim.

In the cross-bill of particulars it is stated:

“Now comes the defendant and says that if plaintiff is allowed to rescind his contract, then plaintiff is. guilty of a tort in the misrepresentation of his age to> defendant, and has wrongfully deceived this defendant, and has to this day failed to return the motor vehicle,, and has appropriated same to his own use, all to the defendant’s damage in the sum of one hundred and seventy-five ($175) dollars and his costs herein expended. ’ ’

The trial court, upon a motion of defendant for judgment, entered the following:

‘ ‘ Case called: Parties in court; trial had. Judgment that defendant go hence without day and recover of plaintiff his costs of suit. To all of which plaintiff excepts. ’ ’

The plaintiff admitted that he had misrepresented his age to the finance company, but the bill of exceptions shows no answer to the question about misrepresentation of age to the defendant. The bill of exceptions shows the following:

“Q. You and your wife then signed the note mortgage all over again, and you didn’t tell them you were a minor, you told them you were twenty-one? A. Yes.

“Q. When you bought the automobile you said'yon were twenty-one too?

“Mr. Hawke: I object.

“The court: Overruled.”

No objection to the bill of exceptions appears to have been filed by the defendant.

Under these circumstances, the Mestetsho case cannot apply, the defendant having failed to show any misrepresentation of his age to the defendant at the time of purchase of the automobile.

It appears from the record that the defendant filed the answer and cross-bill of particulars, hereinbefore referred to, to the original bill of particulars filed by plaintiff and that plaintiff filed a reply thereto. Thereafter, plaintiff filed by leave an amended cross-bill of particulars in which the original amount claimed was increased from $175 to $297.23, the difference being ithe amount paid the finance company. Of course, the defendant would not have to return that which he did not receive, and the record fails to sustain a claim for such amount. It is claimed by defendant that the parties stipulated that the original answer and cross-bill •oí particulars should apply to the amended bill of particulars. No such stipulation appears anywhere in the record.

At the conclusion of the plaintiff’s evidence, defendant made a motion for dismissal. This raised only the question of the weight of the evidence. Euclid Arcade Building Co. v. Stahl Co., 99 Ohio St., 47, 121 N. E., 820.

Under the state of the record, and having in mind the limitations upon this court in weighing the evidence introduced in the trial court, this court concludes that the cause should be remanded to the trial court, through the Court of Common Pleas, for a new trial.

Judgment accordingly.

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


author: Hornbeck, J.

text:
    Adams et al., Appellees, v. Snouffer et al., Appellants.
    (No. 4239
    Decided June 9, 1949.)

      Messrs. Bricher, Marburger, Evatt £ Barton, for appellees.

      Messrs. Robinson £ Robinson, for appellants.
   Hornbeck, J.

The judgment to which the appeal is directed is an injunction against the operation of what the trial court found to be a nuisance in the conduct by the defendants, appellants herein, of a stone quarry at the place described in the petition.

As the appeal is on questions of law and fact, it becomes our obligation to decide the issues de novo and to consider the testimony of the witnesses and their credibility as would a court of first instance.

In the Common Pleas Court the trial judge made separate findings of fact and conclusions of law. Defendants insist that the findings of fact are not supported and therefore the conclusions of law and the judgment are unsound. We have given close attention to the factual development because it is vital to the validity of any judgment. It is our conclusion that in all the material and controlling aspects the 14 findings of fact are supported by the record and to that extent we reach the same conclusion as the trial judge in the Common Pleas Court. We are likewise of opinion that the facts as found sustain the conclusions of law and the judgment.

The question presented is twofold, namely, are the operations of the quarry by defendants, as conducted and to be conducted if not restrained, a nuisance and, if so, will the damage resulting to the plaintiffs be irreparable, that is to say, such as may not be compensated in money damages?

The first question is answered in the affirmative, based on the findings of fact.

It is urged by the defendants that the operation of a quarry is a public necessity. This may be conceded and if it further appears that the product of the quarry could not be produced practically at any other location, another and different question would be presented than is found here. It neither appears that there is a scarcity of the material quarried by the defendant company nor that it is not available in other localities where it is practical to take it. The principle of law urged by defendants was not explored. Indeed, objection was interposed to a question the answer to which would in probability have developed the issue. Brede v. Minnesota Crushed Stone Co., 143 Minn., 374, 173 N. W., 805, 6 A. L. R., 1092.

Much of the briefs is devoted to the issue whether the plaintiffs suffered the injury to their properties and the inconvenience, annoyance and distress to their personal comfort in the use of their residences as contended and testified by several of them. On the one hand, the facts are developed by specific occurrences observed and noted by the plaintiffs or their witnesses. On the other hand, the testimony comes, in the main, from an expert and a vice-president of defendant company. Manifestly, expert testimony coming from a well qualified source, as here, arrests the attention of the triers of the facts. But when conclusions are predicated largely upon theory and are at variance with well substantiated facts, the former must .give way to the latter. This is the situation as developed.

Inasmuch as many of the operations incident to the conduct of defendant company’s business were carried on after the suit was instituted and the company put on notice, it is probable that it carried on its blasting, crushing of stone, movement of trucks and creation and dissemination of dust in a careful manner and to the least inconvenience, annoyance and distress to the plaintiffs. The fact that, notwithstanding this care, the plaintiffs have been seriously distressed in their everyday living by what must be termed very normal operations of the quarry is convincing that the condition will generally get no better and, because of a purpose to greatly enlarge the operations, will continue to cause plaintiffs physical discomfort and property damage.

But it is urged that even though it be found that the operation of the business is a nuisance, it does not appear that the plaintiffs may not be compensated in money for any damage that they may suffer. To bar equitable relief the remedy at law must be full and adequate. It must be as practicable and as efficient to attain the ends of justice and its prompt administration as the remedy in equity. Salem Iron Co. v. Hyland, 74 Ohio St., 160, 77 N. E., 751. Although the mere diminution in the value of property without irreparable mischief will not authorize the granting of' an injunction (Hassinger v. Kramer, 28 Ohio App., 449, 162 N. E., 752), a court of equity will interfere by injunction to stay any proceedings which go to the immediate or tend to the ultimate destruction of property, or which make it less valuable or comfortable for use of the occupants. Perkins Campbell & Co. v. Rogg, 28 W. L. B., 32, 11 Dec. Rep., 585.

The result of the nuisance to the normal use and enjoyment of the properties of the plaintiffs is such that they, as persons of normal sensibilities, cannot continue to live in their homes with that assurance of reasonable quiet and comfort to which they are entitled and which they would enjoy but for the invasion of their rights by the defendants. It is this disturbance of their right of normal living in the community in which they reside which has been invaded and which is not susceptible of measurement in money damages. Such situations have been frequently recognized by courts of equity and remedies accorded. Jones v. Kelly Trust Co., 179 Ark., 857, 18 S. W. (2d), 356; Lademan v. Lamb Construction Co., 297 S. W., 184; Stall v. Hillman, 16 N. P. (N. S.), 410, 30 O. D. (N. P.), 339; Hamilton Corp. v. Julian, 130 Md., 597, 101 A., 558, 7 A. L. R., 746; Krocker v. Westmoreland Planing Mill Co., 243 Pa., 143, 117 A., 669, 23 A. L. R., 1404.

Prom the evidence it is established that the defendant company has opened up quarrying operations on its 134 acres of land two and one-half miles north of Dublin, which operations have a frontage of abput 330 feet, extending north and south. The surface of the land was first stripped, and blasting and removal of rock have been conducted so that the quarry is now about 27 feet deep. Operations were begun about July 1, 1947. The equipment consisted of a steam shovel, stone crusher, well drill, and eight or ten one-and-one-half-ton trucks. The output of the quarry is stone of various sizes, from 5/30 of an inch to four inchest It is proposed to increase the output, which will require more machinery of the same kind which is now on the ground. It is intended also to produce agricultural meal, a very fine limestone product. Not all the various sizes of rock were prepared at the quarry — about 400 tons of stone a day — the stone being trucked to another quarry for the completion of this operation. Only one big primary crusher producing rock from four inches down, with dust in it, was on the site. Preparations for blasting are made by the drilling of holes approximately six inches in diameter to the depth of approximately 27 feet. Dynamite is placed in these holes and discharged. At the timé of trial there had been seven primary blasts, beginning in July and ending in December. The first blast of 12 holes discharged 1,450 pounds of dynamite, the second of 16 holes discharged 2,100 pounds, the third of 17 holes discharged 2,500 pounds, the fourth of 10 holes discharged 1,350 pounds, the fifth of 10 holes discharged 1,250 pounds, the sixth of 10 holes discharged 950 pounds, and the seventh of 18 holes discharged 3,450 pounds. Numerous other secondary discharges were also made. The quarry was in operation every week day from about 6:30 a. m. until 5:00 p. m. Plaintiffs’ residences were at various distances from the quarry, the most remote being about a mile away. The nearest was Frambes, 610 feet away on the east side of the Scioto river. The quarry was on the west side.

All the operations were for the greater part of the year in full view from the homes of these plaintiffs. Plaintiffs acquired and held their lands with no notice of any purpose of defendants to locate and operate a quarry where placed until a short time before the institution of this suit. The blasts produced by the discharge of the dynamite produced marked concussions in the residences of several of the plaintiffs, causing windows to rattle and mirrors and pictures on the walls to shake and were felt personally. These concussions caused plaster to crack and fall from the ceiling of one of the homes and a roof to leak in another. They frightened a child in each of two families, one of a plaintiff, the other of a witness, not a party, who lived more than 1,000 feet from the quarry. The blasting interfered with the sleep and rest of some of the parties and prevented conversation in a normal tone of voice. The uncertainty as to the time when the blasting might be expected added to the uneasiness and distress which followed the actual discharges. The moving and grinding of trucks in low gear up a 10 percent grade, the continuous drilling of holes in the rock when blasting is to be done, the detonation of the dynamite and the crushing of the stone are noisome and disturbing. A fine dust was produced by some of the operations, probably the crushing of the stone, which was deposited in considerable quantity about the premises and over the furniture and woodwork of the homes of the plaintiffs.

In Hamilton Corp. v. Julian, supra, the court supported the overruling of a demurrer to a petition seeking an injunction against the proposed erection of a bowling alley and a picture show in a residential district adjoining the residences of plaintiffs. At page 601, the judge writing the opinion said:

‘.‘The real question in all such cases, as stated by the authorities, is whether the nuisance complained of will or does produce such a condition of things as in the judgment of reasonable men, is naturally productive of actual physical discomfort to persons of ordinary sensibilities and of ordinary tastes and habits, and as in view of the circumstances of the case is unreasonable and in derogation of the .rights of the party.” '

This principle is carried into the syllabus. We Relieve it to be a fair test here and, when applied to the facts developed, supports the granting of the injunction.

In Krocker v. Westmoreland Planing Mill Co., supra, an injunction was granted in favor of plaintiffs living in a residential neighborhood against the operation of a saw and planing mill, because of excessive noise, the manner in which a large amount of lumber was dropped from wagons or unloaded, and shavings, sawdust and smoke from the mill, all of which seriously interfered with plaintiffs and their families in the comfort and enjoyment of their homes.

An injunction was granted against the operation of an amusement park in Edmunds v. Duff, 280 Pa., 355, 124 A., 489, 33 A. L. R., 719, because enjoyment of plaintiffs’ homes would be interfered with by noises, attraction of large crowds or the operation of the business would tend to render the immediate community a less desirable place in which to live. It was there said •that one may not perform acts on his own premises calculated to interfere with the reasonable enjoyment of others of their homes.

The plaintiffs proceed upon the theory that their homes are in a residential section and therefore the relief sought is peculiarly applicable. It is the contention of the defendants that the section involved is not residential but open country. They point to the fact that the residences are widely separated, some being of little value; that the terrain in the vicinity of the properties involved is rough and rocky; and. that, in all, the presence of the quarry, because of these physical conditions, and particularly because of its distance from the homes of the plaintiffs, is not a nuisance. It is true that the district in which plaintiffs’ homes are located is not closely built up. but the parcels of land in which they live have been and are used exclusively for residential purposes. The section involved may be designated as the highest type of exclusive residential territory. Manifestly, it is a modern development to which those who can afford it and care for that manner of living move, and where they may have spacious grounds upon which to build their homes and the opportunity for rustic environment, and where in part, at least, natural beauty is found in a somewhat wild and uncultivated state.

Defendants cite, comment and rely upon Antonik v. Chamberlain, 81 Ohio App., 465, 78 N. E. (2d), 752. In that case the court refused to grant an injunction against defendants ’ use of their premises as a privately owned airport. . The plaintiffs’ claim was “that the operation of an airport upon defendants’ property would of necessity create a nuisance to all of the plaintiffs, and would further result necessarily in repeated trespasses upon plaintiffs’ properties by airplanes using defendants’ property. * * * that by reason of the nuisance and trespasses the plaintiffs would be seriously interfered with in the peaceful enjoyment of their, homes, and that the value of their properties would be substantially impaired, and they would suffer irreparable injury.” At the outset the court commented on the fact that the evidence as shown there, as distinguished from that developed in the Common Pleas Court, was that the new plan of defendant would almost, if not entirely, eliminate flying over the building of the parties plaintiffs. The defendants owned 450 acres of vacant land west of the corporation limits of the city of Akron, which land was unrestricted and unzoned. The court rested its opinion, in part, upon the great concern to the public if the contemplated airport was abated or its establishment prevented and whether the use contemplated was reasonable under all the circumstances and concluded that there was not an appreciable, substantial, tangible injury resulting in'actual, material, physical discomfort. In other words, the court at least leaned to the concept that much of the anticipated injuries resulting to the plaintiffs was fanciful rather than real. The distinction is manifest between this and the cited case upon the determinative issue of the actual, material, physical discomfort suffered by the respective plaintiffs. As early as Goodall v. Crofton, 33 Ohio St., 271, 31 Am. Rep.; 535, an injunction suit, the court directed attention to the axiom that each case is determined on its own facts.

It would serve no good purpose to discuss the many factual issues as well as legal questions well considered in the briefs of the parties. It is urged that a motion and a demurrer to the petition should be sustained. We hold otherwise.

It is urged by the defendants that, although there are 13 parties plaintiff, only three testified and that, inasmuch as they did not take the stand to urge their own cause, they should not be granted relief. Of course, this does not follow if the proof is forthcoming as to their cause of action from any source. Scott Van Etten, husband of a plaintiff, who testified that his home was 2,600 feet north of the quarry, which distance is somewhat greater than that, probably 2,745 feet, also testified that the noise and excess vibrations from the 25 or 30 blasts that he had heard were start1 ling and annoyed him greatly. Beyond this distance, the record is silent as to any injurious effects caused by the operation of the quarry. As to those plaintiffs who live at a greater distance than 2,745 feet, there is no proof either of facts supporting injunctive relief or that annoyance, if any, suffered by them is not compensable in money damages. We, therefore, hold that as to those plaintiffs at a greater distance than 2,745 feet from the quarry, injunctive relief should not be granted, not because they did not testify but because the proof is not forthcoming from any source to support such relief. The plaintiffs who come under this classification are Ray E. Cochran, Ward B. Perley, Pearl B. Morton and Andre Gelpi.

The judgment in this court will be for the plaintiffs other than those who live at a distance greater than 2,745 feet from the quarry, as prayed in the petition and supplemental petition.

Judgment accordingly.

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


text:
    Sata, Appellant, v. Board of Liquor Control et al., Appellees.
    (No. 4332
    Decided March 7, 1950.)

      Mr. Gregory G. Karas and Mr. Joseph J. Poorman, for appellant.

      Mr. Herbert 8. Duffy, attorney general, and Mr. Charles T. Kays, for appellees.
   Miller, P. J.

This cause comes before this court on an appeal from a judgment of the Court of Common Pleas affirming a ruling of the Board of Liquor Control suspending the D-5 liquor permit of the appellant for a period of 45 days, for selling intoxicating liquor to a minor 18 years of age.

The record discloses that on or about February 22, 1948, the appellant was engaged in the retail liquor business and one Dessie Dean Shoun, a minor of the age of 18 years, in company with three adult friends visited the appellant’s tayern on that date. It was around midnight and the place was crowded. On one side of the room was a long bar. There was insufficient room for the entire party to stand up to the bar, hence the minor in question stood immediately to the rear of those in the party who were able to get up to the bar, After conversing for some time, the other female adult member of the party purchased four drinks of whisky and handed one to the minor, which drink she consumed. The appellant admits the sale of the liquor, but denies that the sale was made to the minor or that he had any knowledge that it was to be consumed bv her. There is nothing in the record to indicate that the minor requested that the liquor be purchased for her. The question involved is whether, under this state of facts, the appellant violated Section 6064-22, General Code, which provides in part as follows:

“No beer shall be sold to any person unless he shall have attained the age of eighteen years; and no intoxicating liquor shall be sold to or handled by any person unless he shall have attained the age of twenty-one years. ’ ’

The Common Pleas Court found that there was substantial evidence before the board tending to show a violation and, since it was only a reviewing court, it could not weigh, the evidence, and cited Farrand v. State Medical Board, 151 Ohio St., 222, 85 N. E. (2d), 113. We think this is a correct interpretation of the law applicable and therefore the only question for our determination is whether there was sufficient evidence before the board to sustain the finding.

In giving consideration to this question it becomes necessary to examine the definition of the word “sell” as defined by Section 6064-53, General Code, which provides:

“ ‘Sale’ and- ‘sell’ include exchange, barter, gift, offer for sale, sale, distribution and delivery of any kind, and the transfer of title or possession of beer and intoxicating liquor either by constructive or actual delivery by.any means or devices whatsoever.”

Now the record discloses that neither the appellant nor any of his agents had knowledge that the intoxicating liquor was to be consumed by Dessie Dean Shoun, and such knowledge may not be reasonably inferred from all the surrounding facts and circumstances. In order that there be a sale violation under Section 6064-22 (1), General Code, it is necessary that the one charged with such violation had either actual or constructive knowledge that the liquor sold was to be transferred or given to the minor.

As we find no evidence to support this charge the judgment of the Common Pleas Court is reversed as well as the ruling of the liquor board. The cause is ordered remanded with instructions that the charges be dismissed.

Judgment reversed.

Hornbeck and Wiseman, JJ., concur.


author: Hunsicker, J.

text:
    The Home Ins. Co. et al., Appellees, v. Board of County Commissioners of Lorain County, Appellant.
    (No. 1193
    Decided November 2, 1949.)

      Mr. Dan K. Cook, for appellees.

      Mr. Paul J. Mikus, prosecuting attorney, and Mr. Harold 8. Ewing, for appellant.
   Hunsicker, J.

The facts in this appeal on questions of law show that the defendant (appellant), Board of County Commissioners of Lorain County, Ohio, herein called County, authorized, by proper resolution, the Lorain county engineer to rent, from Sam Falbo, one of the appellees herein, a road grader for road improvement work.

The rental agreement for the road grader provided that Falbo would furnish the equipment, operator, gasoline, oil, and all incidental expense incident to the use of such equipment. The County determined the place and manner of work, agreed to return the equipment at the end of ten days in good condition, subject only to reasonable wear during its use, and promised to pay therefor the sum of $56 per day.

After six days of use, the operator of the road grader drove it onto a railroad crossing into.the path of an oncoming railroad train, resulting in his death and the almost complete destruction of the equipment.

The grader, in its damaged condition, was thereupon returned to Falbo, who demanded from the County the damages he had sustained by reason of the failure to return it to him in good condition, less the reasonable wear during its use by the County.

This request the County refused.' Falbo then made a settlement with The Home Insurance Company, the other appellee, herein called Company, who had issued to Falbo a $50 deductible collision insurance policy on this equipment. Falbo thereafter executed a subrogation agreement to the Company for such claim as Falbo might have against the County.

The Company and Falbo then filed an action in the Common Pleas Court of Lorain County, to recover against the County the value of the equipment so rented to the County.

The County, by way of answer, admitted that: By proper resolution and authority, it entered into the rental agreement; the grader was totally destroyed while so rented by it; the destruction of the grader was caused by the negligence of the operator thereof.

A verdict and judgment thereon were rendered in favor of the Company and Falbo for the respective losses sustained by them. It is from such judgment that this appeal is taken.

The questions which should first be determined here • in are: What was the relationship between Falbo and the County, created by the rental agreement the parties entered into? Was the operator of the equipment the employee of Falbo or the employee of the County?

The County, by express statutory provision, is permitted to lease equipment as was done in the instant case. See Section 7198, General Code.

Whenever a chattel — that is, personal property — is hired out for use by the hirer, and such person in whose custody such property is placed thereby has the use of the chattel (for the time he has the chattel), there arises that form of bailment known in the ancient common law as “locatio rei.” This is now known as a bailment for mutual'benefit. 6 American Jurisprudence, Bailments, Sections 13 and 14.

A bailment for hire may arise by operation of law or by express contract. It exists when an article or personal property is delivered by an owner to another for such other’s use and benefit, who agrees that, after its use, such property shall be returned to the owner, the owner receiving therefor some compensation for such use. 5 Ohio Jurisprudence, Bailment, Section 2; 8 Corpus Juris Secundum, Bailments, Section -8; 4 Williston on Contracts (Rev. Ed.), Sections 1032 and 1041; Black’s Law Dictionary (Third Ed.).

In the instant case, there was a delivery of personal property to the County, which property was to be used by the County for its own purposes for a period of ten days. Thereafter, it was to be returned to the owner in good condition, less reasonable wear. The owner of such property was to receive, for such use, a stipulated rental payment.

There arose by reason of this arrangement a bailment, not by operation of law, but by the express agreement of the parties.

The rights of the parties are to be determined by the express provisions of the contract into which they entered. By the terms of that contract, Falbo was entitled to have his grader at the end of ten days’ use, unless it could be shown that some lawful excuse existed for a failure to redeliver it to Falbo. Agricultural Ins. Co. v. Constantine, 144 Ohio St., 275, 58 N. E. (2d), 658; Hanlon v. J. E. Miller Transfer & Storage Co., 149 Ohio St., 387, at page 391, 79 N. E. (2d), 220.

By the terms of the contract herein, the operator was employed by Falbo, but under the express control and direction of the County. . The County directed the use and operation of the grader. It told the operator where to go, what to do, and the manner of doing the work sought to be accomplished. Can it then be said that the operator was the agent of Falbo? We think not, for the essential element of control of his servant had been taken from him. The operator’s authority and supervision were given him by the County. It was the County’s agents who controlled his actions, not Falbo.

“2. Where an employer loans his employee to another person to do work for and under the direction of the latter, the employee in the doing of such work is regarded as a servant of the one to whom he is loaned, although he remains in the general employ of the one who loaned him. (Paragraph four of the syllabus in Halkias v. Wilkoff Co., 141 Ohio St., 139, approved and ■followed.)” Giovinale v. Republic Steel Corp., 151 Ohio St., 161, 84 N. E. (2d), 904.

The County does say, however, that no liability can attach to it because the destruction of the grader took place while it was being used in the repair of a public road, and hence, while the County was engaged in a governmental function.

It must be remembered that there was express statutory authority to enter into the agreement the County made with Falbo. We are not confronted with the question of the liability of a governmental agency for tort.

We do have, however, the question as to whether a County, in the leasing of chattel property, has assumed the ordinary liability which attaches to a bailee to protect such property from destruction by the negligent act of its servants.

The claimed liability in the instant action arises out of contract, while the usual case of governmental immunity from liability arises out of a tort committed by the servant of the governmental agency.

Shall contracts lawfully and properly made by a County be interpreted in any other manner than the manner in which similar contracts are interpreted between individuals? We do not think so, for, in the instant case, no question can arise but that the contract of lease of the grader was authorized and properly entered into between the parties. Hence, the same duties and liabilities attach to this agreement as would arise in the case of any other similar contract when made between private persons.

The responsibility lawfully assumed in the instant case was, not to the general public, but to a specific individual, the bailor Falbo.. ,

In the case of Commissioners of Belmont County v. Ziegelhofer, 38 Ohio St., 523, wherein a claim was made against a county and the question arose concerning the procedure to be used to enforce such claim, the Supreme Court, in discussing the liability of a county, said, at pages 528 and 529:

‘ ‘ In the case at bar, the liability of the county, if any existed, was founded on, and arose out of a contract, and not by virtue of a statute creating such liability. The statute confers upon the commissioners, the power to contract with reference to the subject matter. Irt the exercise of this corporate power, they can create a liability against the county.

“When such a contract is made within the scope of the authority conferred, the obligations arising therefrom, are to be determined by common law principles, in the absence of statutory provisions to the contrary. The right is not founded on a statute, but on a contract made by a quasi corporation.

i Í * * *

‘ ‘ Here the claim is founded upon contract, and grows out of the corporate liability of the county, for the official acts of the board of county commissioners. In this respect, the rights of persons contracting with the commissioners, and the liability of the county on their contracts, are of the same nature as the corporate liability of private corporations. In either case, the capacity to contract is derived from the statute, but the liability to others, arises from the acts of those authorized to bind the corporate body. ’ ’

See, also, Bates & Rogers Const. Co. v. Board of Commrs. of Cuyahoga County, 274 F., 659, at p. 663.

We recognize that a county is a political division of the state, organized as part of the machinery of government, and as such acquires certain immunity from liability. A county can exercise only such powers as are expressly conferred on it by the Constitution and statutes of the state, but it also has such powers as arise by necessary implication from those expressly granted to secure the performance of the duties imposed on it by law.

Certainly, a part of the power to lease road grading equipment would include power to accept the duty to return such property unharmed at the expiration of the lease.

A case involving the principles set out herein has been called to our attention, and we believe its reasoning to be sound. This case is Williams v. Board of County Commissioners, 61 Kan., 708, 60 P., 1046, the first pragrapb of the syllabus of which says:

“1. A county which, lacking a court house, rents a building from a private individual for county purposes, impliedly obligates itself to the lessor for carefulness and prudence in the use of it, and may enter into a written agreement of lease containing the ordinary covenants against waste, etc., and if, through the negligence of the officers charged with the duty of caring for the premises, the building is destroyed by fire, the county is responsible in damages for its value.”

The Kansas Supreme Court further said:

“The defendant in error urges that the claim of liability against it must rest upon the covenants against waste, etc., contained in the lease, and that the statutory permission to provide suitable rooms for county purposes does not authorize the making of such covenants. In our judgment this contention is without force. Authority to contract with private persons for buildings for county purposes is an authority to enter into the ordinary agreements of lease. It is an authority to stipulate upon the same terms that private individuals ordinarily stipulate for the occupancy of leased premises. But over and beyond this contention, and independently of any of the special covenants of the lease, the relation of landlord and tenant begat the obligation to care for the leased premises with ordinary prudence and carefulness, and begat the obligation to respond in damages for their negligent destruction.”

A¥e therefore determine that the County, having lawfully entered into the bailment contract for, or lease of, the grader, was, by that agreement, charged with the responsibility of returning such grader to the bailor-lessor in its original condition, less reasonable wear during the period of the lease. Upon a failure to so return this property, because of its destruction due to the negligence of the agents of the County, the County became liable to the -lessor for its fair and reasonable value in the condition in which the County agreed to return it.

We have examined all other claimed errors, and find none prejudicial to the rights of the appellant.

Judgment affirmed.

Stevens, P. J., and Doyle, J., concur.