author: Matthews, P. J.

text:
    Stilwell, Jr., et al., Appellees, v. Board of Education of Hamilton County et al., Appellants.
    (No. 7962
    Decided January 24, 1955.)

      Messrs. Waite, Schindel & Bayless, Mr. Philip J. Schneider, and Mr. David P. Tarbell, for appellees W. E. Stilwell, Jr., et al., and Evendale School District.

      Messrs. Martin, McLain & Rack, for appellee Sharonville School District.

      Mr. William H. Nieman, for appellee Woodlawn School District.

      Messrs. Paxton & Seasongood and Mr. Reuven J. Katz, for appellant County Board of Education.

      Mr. Robert M. Galbraith, for appellant Glendale School District.
   Matthews, P. J.

This case is before the court for decision after a trial de novo upon an appeal on questions of law and fact.

The plaintiffs seek to enjoin the defendant Board of Education of Hamilton County, its members, and its clerk and county superintendent of schools from taking any action to carry into effect a certain resolution adopted by the board on October 29, 1953, abolishing and dissolving the Crescentville, Evendale, Glendale, Runyan, Sharonville, Springdale, Stewart, and Woodlawn Local School Districts, and providing that the territory embraced within those districts be, and the same was, transferred to a new district thereby created. This action was filed on the second day following the adoption of the resolution. A copy of the resolution was attached to and made a part of the petition.

It was alleged that the resolution was void because it did not include the appointment of a board of education for the new district. It was alleged also that tax levies and bond issues were pending to be voted on at the election on November 3, 1953, which were vital to the proper conduct of the schools in certain districts. It was alleged also that the meeting at which the resolution was adopted was held in violation of a promise made by the defendants to the local boards that nothing would be done until they had discussed a certain report made by the Cincinnati Bureau of Governmental Research recommending the consolidation, - with the director of the bureau. It was alleged also that the consolidation would require levies of taxes beyond the constitutional power of the taxing districts and also that the statute (Section 3311.26, Revised Code) under which the defendants purported to act was unconstitutional and void.

The petition concluded with the averment that by reason of the foregoing allegations the action of the defendants was unlawful, arbitrary, unjust, unreasonable, and void.

On October 31, 1953, a temporary restraining order was granted, enjoining the defendants from taking any action whatever under said resolution other than the filing of the map of the new district with the county auditor. Later, this restraining order was modified so as to permit the defendants to serve notice on the local boards of the passing of the resolution and to publish notice of the passing of the resolution, as required by Section 3311.27, Revised Code. As modified, the injunction remains in full force and effect.

Issue was taken by answer as to all the allegations of the petition, charging unlawful, arbitrary, or unreasonable acts, or that they acted otherwise than in the exercise of a sound discretion.

Later, that is on April 28, 1954, the plaintiffs were permitted to file a supplemental petition, in which they alleged that after the filing of the petition herein a majority of the qualified electors in the territory included in the proposed new district voting at the last general election held on November 3, 1953, filed with the county board of education written remonstrances against the action proposed by the defendants’ resolution of October 29, 1953, but that the defendants as the result of mistake of law and fact rejected these remonstrances. The plaintiffs alleged that the defendants misconstrued and misapplied Section 3311.26, Revised Code, to limit remonstrators to those residents of the territory who had voted at the general election held oh November 4, 1952, whereas, the general election held on November 3, 1953, was in law and in fact the last general election, voting at which was the essential qualification for remonstrators. It was alleged that a majority of those electors had remonstrated.

It was alleged also that the clerk of the board of elections notified the defendant board that as well as could be determined 4,468 persons voted in the territory at the general election of 1952, and that the individual remonstrators found by the defendant were 2,546, which exceeded a majority of those voting at the election of 1952.

It was alleged also in this supplemental petition that the county board never requested or received from the board of elections a certified list of the names of the persons voting at the election of 1952 in such districts and had never received any information concerning the 1953 election, nor did the clerk of the board of elections inform the defendant board of the voters at the election of 1952 who had since died or moved from the district; and that in rejecting the remonstrances on December 29,1953, the county board acted without any knoAvledge relating to deaths, marriages, or removals.

It was alleged also that the county board rejected the names of 300 signers because their names were not found by it on the registration list, although many of that number were registered and had voted at the general election of 1952, and that the board rejected the names of 125 because of improper signatures or no address, whereas, many of these were qualified and had remonstrated, and that the board should have obtained the correct identity of these remonstrators.

The plaintiffs alleged also that the defendant county board rejected their proffer of help at the meeting of December 29, 1953, in determining the qualifications of the remonstrators.

Finally, the plaintiffs alleged that the published notice of the passing of the resolution of October 29, 1953, was defective and misleading in that the resolution was not published in full and was published on November 6 and 13, 1953, and thus after the election of 1953, but that such notice failed to inform the public that the “last general election” referred to therein was the general election of 1952, and that only voters thereat were qualified to remonstrate.

By answer to this supplemental petition, the defendants admitted that certain remonstrances were filed ivith the county board of education on November 28, 1953, and that on December 29, 1953, that board decided that there were not sufficient remonstrances to avoid the consolidation, and that the original action of consolidation should be sustained. They alleged that there were 2,835 signatures to the remonstrances, but that the board found 289 to be duplicates, 147 were not filed in time and at the proper place, 142 were nullified by “counter-remonstrances” and that 788 were in the form of post cards, solicited by, addressed and mailed to the plaintiff Stilwell, and that post cards were illegal and ineffective as remonstrances and were rejected for that reason.

The defendants admitted that they believed and continue to believe the voting at the election of 1952 determined the qualification of remonstrators and that they refused and still, refuse to consider the election of 1953 to be the last general election applicable to this situation referred to in Section 3311.26, Revised Code.

The defendants admitted also that they applied to the board of elections for information as to the number of qualified electors residing in the territory herein involved who voted at the general election of 1952 and that the clerk of the board certified that as nearly as could be determined the total was 4,468. They admitted they never requested or received a certified list of the names of the persons voting but that shortly after the remonstrances were filed they took them to the board of elections and requested that board to check them to ascertain which ones had voted at the election of 1952; that the board of elections complied therewith before the county board of education meeting of December 29, 1953; and that acting on that information the board of education found insufficient remonstrances to avoid the consolidation.

The defendants admitted also that they published notice of the passing of the resolution of October 29, 1953, as required by law and as permitted by the amended temporary restraining order, by which they could publish notice “as provided in Revised Code 3311.27”; and that the published notice contained the substance of that resolution, but that the plaintiffs quoted only a part of it in their supplemental petition and omitted that part of the notice that referred to Section 3311.26, Revised Code.

The answer denied all other allegations.

After the opening statements at the trial in this court, the plaintiffs proceeded to offer their evidence, whereupon it immediately developed that the scope and relevancy of the evidence depended upon a determination of whether the general election of 1952 or 1953 controlled in passing upon the eligibility of a remonstrant. Argument on this question had been incorporated in the opening statement and on preliminary hearings relating to the setting of the case for trial. Upon the question being presented at the trial, the court considered the question and announced its decision that the general election of 1952 was the ‘ ‘ last general election ’ ’ within the meaning of that .phrase as used in Section 3311.26, Revised Code, as applied to the facts of this case — and the trial proceeded in conformity to that ruling. It is now urged that the ruling was erroneous. The pertinent language of that section is:

“A county board of education may create a new local school district from one or more local school districts or parts thereof, and in so doing shall make an equitable division of the funds and indebtedness between the newly created district and any districts from which any portion of such newly created district is taken. Such action of the board shall not take effect if a majority of the qualified electors residing in the territory included in such newly created district voting at the last general election shall, within thirty days from the time such action is taken, file with the board a written remonstrance against such action.”

It seems to us that there is not a trace of uncertainty or ambiguity in the meaning of this section. Thé subject matter was the action of the county board of education authorized by Section 3311.26, Revised Code. The resolution evidencing the action expressly dissolved the eight local districts and expressly created the new district embracing the same territory. We know of no other action by the board that is made a condition precedent to creation of the school district.

At the time this resolution was adopted, there had been no general election in 1953. At the time this action was begun, there had been no such election. We are unable to conceive how a future election can be brought within the meaning of the phrase “last general election.”

It is urged, however, that as it is provided in the section (3311.26) that if a majority of the qualified electors residing in the territory voting at the last general election remonstrate within 30 days against the action of the board it shall not take effect, we should stand at that position and take a retrospective view, and, thereby, bring the election of 1953 within view as the last general election. To follow this reasoning would disregard realities. The filing of remonstrances has nothing to do with the creation of a school district. Its effect is to prevent its creation.

In Section 3311.26, Revised Code, provision is also made for the appointment by the county board of a board to administer the affairs of the newly created school district to be superseded by an elected board, and in that connection it is provided that “a board of education shall be elected for such newly created district at the next general election held in an odd numbered year occurring more than thirty days after the appointment of the board of education of such newly created district. ’ ’

It seems to us that this is a recognition by the General Assembly that a general election might take place within the 30 days in which remonstrances could be filed, and, of course, that it could not be the last general election referred to earlier in the section in relation to the qualification of remonstrants.

We adhere to our ruling that voting at the general election held on November 4,1952, was necessary to qualify as a remonstrator.

It is also urged that the published notice of the action of the county board of education did not comply with the requirements of Section 3311.27, Revised Code, which provides that the adopted resolution of consolidation should be published once each week for two consecutive weeks and completed not later than the third Saturday following the adoption of the resolution. The objection is based on the fact that the publication was not a verbatim reproduction of the resolution. It does, however, contain the substance of the resolution and in the case of Smith v. Board of Education, 97 Ohio App., 507, we held an identical publication satisfied the requirements of the statute. The reasons we gave there we reaffirm here and hold that there has been a substantial compliance with the statute.

Counsel also urge that this consolidation will result in the imposition of tax burdens upon certain of the districts, contrary to constitutional limitations upon their taxing and bonding capacities. This contention was also made in the case of Smith v. Board of Education, supra. We concluded in that case that it was untenable. For the reasons there given, we hold it to be untenable here.

Finally, the plaintiffs contend that the defendant county board of education acted unlawfully, unreasonably, and arbitrarily in several respects. Before discussing these various objections to the action of the board in its handling of these remonstrances, we think it would be helpful to consider where the burden of proof rests. In this connection it should be remembered that it was the purpose of these remonstrators to annul an action already taken by a duly constituted governmental agency. It is the relief sought in this action.

In 1 Ohio Jurisprudence (2d), 607, Section 216, it is stated:

“In accordance with the general rule applicable to acts of public officers the action of an administrative agency within the limits of the jurisdiction conferred by law is presumed, in the absence of proof to the contrary, to be valid and to have been done in good faith and in the exercise of sound judgment. In the absence of evidence to the contrary, the agency will be presumed to have properly performed its duties and not to have acted illegally, but regularly, and in a lawful manner.”

That this rule prevails in most, and perhaps all, jurisdictions is made manifest by the numerous citations supporting the text in 42 American Jurisprudence, 680, Section 240, in which it is said that where the regulations, decisions, or orders of administrative officers are challenged in court the burden of proving them unlawful in any manner rests upon the party complaining. This rule applies to the action of boards of education in Ohio. 36 Ohio Jurisprudence, 192, Section 160.

Counsel for plaintiffs contend the Ohio cases do not support the rule stated in Ohio Jurisprudence and rely upon In re Petition to Prohibit Sale of Intoxicating Liquors, 20 C. C. (N. S.), 26, 31 C. D., 218, and Kerwin v. Board of Education, 67 Ohio Law Abs., 528, 51 Ohio Opinions, 336, 116 N. E. (2d), 610. A cursory examination of these cases is sufficient to develop that they furnish no foundation for the plaintiffs ’ position.

The first case arose under a local option statute authorizing a majority of the qualified electors in a described district to file a petition with a judge of the Common Pleas Court, and, if, upon a hearing, the judge should find that the petition was sufficient, the sale of intoxicating liquor would be outlawed. After the petition was filed, various objections to the sufficiency of the petition, by persons claiming to be electors in the district were made, including a denial of the qualifications of each signer. The judge, however, found the petition was sufficient, and it was that finding which was under review on a proceeding in error. It will be observed that this is not a case of a judicial review of an order made by an administrative agency. The proceeding originated in the Court of Common Pleas, or rather before a judge of that court. The petition of the electors initiated the proceeding, whereas, the remonstrances in the case at bar were intended to nullify an order already adopted by the county board of education. It is true that it was held that the judge could consider as true the allegation in the petition that the signers were resident electors of the district “in the absence of any evidence tending to show the contrary.” That is far from saying that the burden of sustaining an administrative order rests upon the administrative agency.

The second case relied on (Kerwin v. Board of Education, supra) was a review of a proceeding to consolidate school districts and has many features similar to this case. It is claimed that the court in that case approved and followed the case of In re Petition to Prohibit Sale of Intoxicating Liquors, supra. That is a mistake. The court at page 536 said: “However, neither Section 4227-4, General Code, nor the local option law as construed by the Cuyahoga County Circuit Court in In re Petition to Prohibit Sale, supra, is sufficiently similar to Section 4831-1, General Code, for the principle of either to here control. ’ ’

And, as we construe that opinion, the court was of the opinion that the burden of proof was on the remonstrants for, at page 538, it is stated: “If the defendant board rejected any signature because it was not authentic it was bound to say so. Had the board so acted, the plaintiffs would then have had to shoulder the burden of showing that such action constituted an abuse of discretion.”

The Kerwin case did not turn on any question of burden of proof. "What the court did was to analyze the evidence and from that analysis conclude that the undisputed evidence showed a majority had remonstrated. In reaching this conclusion, the court accepted the finding of the board where it sustained the validity of the signatures, and found that the board erred as a matter of law in rejecting a sufficient number to make the majority.

We think the general rule applies to this case and that in order to set aside or nullify the resolution of consolidation, the burden of proof rests on the plaintiffs to show that the action of the county board was. unreasonable and arbitrary, or that it, in some substantial way to the prejudice of the remonstrants, failed to follow the law.

We think that in passing on this question of the proper exercise of discretion it is necessary to have in mind this entire proceeding from its inception. The record shows that the problem of these eight local school districts had been under discussion for years. It was generally thought that something had to be done to provide more adequate educational facilities in that territory. The question was what could be done. Consolidation was advocated by some. It was opposed by others. Surveys were made. Finally, the eight local districts joined in the employment of the Cincinnati Bureau of Governmental Research to make an investigation and report its recommendations. In August 1953, it submitted its report to the local districts with its recommendation that consolidation was the best present solution of the problem. A copy was sent to the county board. Several meetings were held both before and after this report, at which the opposing views were presented.

At a meeting after this report was filed, a representative of one or more of the local boards voiced a desire to examine the employee of the Cincinnati Bureau of Governmental Research as to the meaning of the report. A meeting of the county board was called for a certain date, which later was advanced so as to occur before the election of 1953. One of the claims of abuse of discretion is the advancement, of this meeting, it being claimed that this prevented the remonstrants from examining the report and questioning the author concerning some of its recitals and conclusions. We find no abuse of discretion in this connection.

The county board did nothing to hamper the remonstrants in this regard. The report was in effect their report. The survey was made for them. Whatever obligation of explanation was owed was to them and not to the county board. No meeting of the county board could prevent them from seeking additional information from their employee, the Cincinnati Bureau of Governmental Research. Although they have had months in which to do so, no information outside the report has been developed from that source. Furthermore, the report itself relates exclusively to the question of how to provide for the educational requirements in the specified territory — a matter of opinion and policy in the sound discretion of the county board. We find that the remonstrants were given every reasonable opportunity to present their views on that subject.

It is also urged that passing the resolution of consolidation less than a week before the general election was an abuse of discretion, because under Section 3503.26, Revised Code, the board of elections was authorized to and did prohibit the copying of the lists of registered voters for 40 days before and 11 days after the election of 1953.

It is not suggested that any law imposes a moratorium upon action by the county board of education, depriving it of power to adopt a resolution of consolidation for any period prior to or following a general election. Nor can we detect any abuse of discretion based on the time of passing such a resolution.

It seems to us that the necessary information relating to the voters at the general election of 1952 was available at all times. The pollbooks of the 1952 election contained the authentic and conclusive evidence on the subject of who voted at that election, and as a matter of law any voter at that election was registered to vote at the 1953 election. These pollbooks were on file both at the board of elections and in the office of the clerk of courts. The registration cards were at most just a facility. The record shows that the county board of education and the board of elections had recourse to the pollbooks to determine the voters at the 1952 election. All the registration cards purport to show is the list of registered voters. They do not show who voted at a particular election. The remonstrants, of course, knew whether they had voted at the election of 1952.

We hold that it was no abuse of discretion for the county board of education to disregard or ignore the fact that another general election would intervene during the 30-day period in which remonstrances might be filed.

It is urged that the remonstrants were misled by the terms of the published notice of the passing of the resolution of consolidation. This notice was required by the law to be completed not later than the third Saturday after the action by the county board of education. The county board deemed it proper to and did insert in this notice a statement that transfer of the territory would not take effect if a majority of the qualified electors residing in the territory included in such newly created district voting at the last general election should within 30 days from the time such action had been taken file with the county board of education a written remonstrance against it. Because of the intervention of the general election of 1953 before this notice was published, it is urged that the public was misled into thinking it referred to that election.

It seems to us that no one interested in this question of consolidation could have been misled by this published notice. At the time the resolution was adopted and at the time this action was commenced, the election of 1953 had not been held. The law and the notice referred back to the -last general election that had been held before the action of the county board in adopting the resolution of consolidation. This language would naturally be applied to the situation in the consolidation proceedings as required by law. It relates back to the time the action was taken by the county board. The last general election at that time was the one held in 1952.

We are, also, of the opinion that no one was in fact misled by this notice. The subject of what election was controlling was a matter of controversy almost from the beginning. It was a matter of law concerning which lawyers disagreed.

Finally, it is claimed that the county board failed to take into consideration the possibility of deaths of voters since the 1952 election and, also, their removal from the territory, made no investigation of that subject, and, in determining the number of required remonstrants, made no deduction on that account.

The statute makes no provision for such deductions. It provides that the consolidation shall take effect unless a majority of the voters remonstrate. We hold, therefore, that the county hoard did not err in disregarding deaths and removals.

We think the evidence is almost conclusive that a majority of the voters did not file remonstrances. While not formally conceding that fact, the plaintiffs, as we understand their position, do not claim the contrary. Certainly, the county board did not abuse its discretion in reaching the conclusion that a majority had not remonstrated.

For these reasons, the court finds for the defendants and the prayers of the plaintiffs ’ petition and supplemental petition are denied.

Judgment for defendants.

Eoss and Htldebrant, JJ., concur.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    The Royal Sausage & Meat Co., Appellant, v. Aetna Casualty & Surety Co., Appellee.
    (No. 22788
    Decided February 3, 1954.)

      Mr. O. J. Green and Mr. S. N. Hosenball, for appellant.

      Messrs. Arter, Hadden, Wykoff & Van Duzer and Mr. J. H. Wilkinson, for appellee.
   Per Curiam.

In this appeal on questions of law from a judgment of the Municipal Court of Cleveland, error is predicated on the action of the trial court in granting defendant’s motion made at the close of plaintiff’s case for a directed verdict and entering judgment for the defendant.

Plaintiff filed his petition praying for judgment against defendant on an insurance policy issued by defendant for lóss due to “water damage.” The essential facts are not in dispute. The plaintiff had in his premises located at 5015 Fleet Ave., Cleveland, Ohio, an industrial appliance known as a sausage stuffer operated by air pressure. On August 20, 1950, plaintiff was using the sausage stuffing machine in the manufacture of wieners and bologna. In this operation the stuffer was filled with ground meat weighing around 290 to 300 pounds. The air pressure applied was from 60 to 80 pounds. By this process, the ground meat was forced into visking casings which formed the completed product of wieners and bologna. During the course of the operation on that day two accidents occurred due to the rupture of the top of the stuffing machine under air pressure. The first accident occurred early in the day and is not here involved because there was no water damage as a result thereof. The second accident resulted in water damage by reason of a part of the ruptured top of the machine striking a water pipe with violence sufficient to cause a leak.

Plaintiff testified in substance in relation to the first accident, reference to which is necessary only to show the sequence of events, that the “top of the machine * * * blowed out.” At this time the meat which was in the stuffer was spread all around the room as a result of the rupture of the metal top and the force of the sudden release of the air pressure.

After this accident the plaintiff called The Guarantee Welding Company which sent three men to his premises, who proceeded to weld the broken pieces of the top together and assured plaintiff that the welded pieces would hold up under “a thousand-pound pressure.” The welding was done by them on the premises, and the top was closed by the workmen and the machine again placed in operation. The air pressure was again applied and the top that had been welded cracked once again throwing one of the parts of the top into the air a distance of about four and one-half feet, striking a one and one-half inch water pipe running down to the sausage staffer with such force as to pierce the pipe, causing the water to flow from the pipe and flood the premises, doing extensive damage to meat and visking casings on tables in the midst of preparation for further manufacture. A claim was made to the defendant insurance company under the provisions of the policy. The insurance company, after investigation, declined to allow the claim on the ground that the leak was caused by an “explosion,” a peril not included in the policy.

The trial court directed a verdict entering judgment for defendant on the ground that the water damage was due to an explosion within the meaning of the policy. Plaintiff contends that the trial court erred in holding as a matter of law that the damage was caused by the excepted peril of “explosion” and asserts that the question should have been submitted to the jury as a matter of fact, or that the court should have directed a verdict for plaintiff, leaving to the jury the sole question of determining the amount of damage to which plaintiff would be entitled.

So far as pertinent, the provisions of the policy are as follows:

“ ‘Water Damage’: Wherever in this policy, the term ‘Water Damage’ occurs, it shall be held to mean (a) the accidental discharge, leakage, or overflow of water or steam from within the following source or sources; plumbing systems (excluding sprinkler systems), plumbing tanks for the storage of water for the supply of a plumbing system, heating systems, elevator tanks and cylinders, standpipes for fire hose (except when supplied by a sprinkler system), industrial or domestic appliances and refrigerating or air conditioning systems; (“b) the accidental admission of rain or snow directly to the interior of the building through defective roofs, leaders or spouting, or through open or defective doors, windows, skylights, transoms or ventilators.

“Perils not included: This company shall not be liable for loss by ‘water damage’ or collapse or fall of a tank caused directly or indirectly by * * * (k) explosion (including explosion of refrigerating and air conditioning systems); (1) explosion or rupture of steam boilers or fly wheels * *

At the outset, it is well to note, for the purposes of the motion for judgment made at the close of plaintiff’s case, that two principles of law operate favorably to the plaintiff: (1) upon such motion plaintiff was entitled to have • the evidence construed most strongly in his favor; and (2) the policy having been prepared and presented by the insurance company, the plaintiff was entitled to have the terms thereof strictly construed against the defendant.

In consideration of these principles of law, the question arises whether reasonable minds could arrive at but one conclusion which, if favorable to the defendant, would require the court to grant the motion. If, on the other hand, reasonable minds could arrive at different conclusions, the plaintiff was entitled to have the case submitted to the jury under proper instructions by the court.

In our analysis of the pertinent provisions of the policy we conclude that “water damage” due to the accidental discharge, leakage or overflow of water from within the plumbing system, if caused by an explosion, would require this court to affirm the judgment of the trial court.

The parties have favored this court with five separate briefs, in which many cases are cited and quoted from this and other jurisdictions.

In its original brief the plaintiff contended for a submission of the case to the jury on a question of fact, but in its final brief argues that it is entitled to a directed verdict in its favor. Plaintiff has cited as a leading Ohio case, United Life, Fire & Marine Ins. Co. v. Foote, 22 Ohio St., 340, 10 A. R., 735. That case involved a policy of insurance against fire, but excepted from the risk any loss by explosion. The court in paragraph one of the syllabus said:

“* * * In an action upon the policy it appeared that an explosive mixture of whiskey vapor and atmosphere had come in contact with the flame of a gas-jet, from which it ignited, and immediately exploded, whereby a fire was set in motion, which destroyed the insured property. Held, that in such case it can not be said that the destruction was caused by a fire within the meaning of the policy, but, on the contrary, the loss was by fire, occasioned by the explosion.”

Plaintiff quotes from the language of the court at page 348 to the effect that an explosion is an idea of degrees, “and the true meaning of the word in each particular case, must be settled, not by any fixed standard, or accurate measurement, but by the common experience and notions of men in matters of that sort.”

It is significant to note, however, that the court in that ease held as a matter of law that the fire loss was occasioned by the explosion.

Plaintiff cites and quotes from many other cases decided in other jurisdictions. We have examined these authorities and numerous other cases cited by defendant. We find no case directly in point due perhaps to the unusual facts and circumstances of this case.

The only witness for plaintiff was the president of the company. In his testimony concerning the first accident, he stated that the machine “blowed up,” that it “blew up.” He testified that when the air was applied, after the top of the machine had been welded, “the top blew up again, blew up this time on the ceiling and the water pipe was damaged.” In his cross-examination, he testified as to the second accident: “I heard this bang noise, then the meat splash around the sausage machine and the bulbs breaking.”

Another example of plaintiff’s testimony follows:

* ‘ Q. When this machine exploded the first time, did you use the stuff that was inside of it, the meat that was in it ? A. This exploded the first time, that what was good I used, what was no good I cannot use * * *. ”

And again:

“Q. Was this a loud noise? A. When the meat splashed all around and the water pipe broke, you could hear it.
“Q. What was the first thing you heard? A. I heard this bang noise then the meat splash around the sausage machine and the bulbs breaking.” (Emphasis supplied.)

From this and other testimony, it is clear that the witness described what he considered to be an explosion.

In Commercial Union Fire Ins. Co. of New York v. Bank of Georgia, 197 F. (2d), 455, the United States Circuit Court of Appeals for the Fifth Circuit gave, at page 456, this following definition of the word “explosion” and in the course of the definition cited authorities and, inter alia, referred to the Ohio case of United Life, Fire & Marine Ins. Co. v. Foote, supra, with approval:

“An explosion is a rapid, sudden, and violent expansion of air or relinquishment of energy, causing a rupture and accompanied by a loud noise, not necessarily extremely loud. Fire is perhaps the principal cause of explosions, but they may be produced without the aid of fire. A flywheel may explode from excessive speed if its governor breaks. Even severe frost often causes trees to explode. It has been said that there is no difference in ordinary usage between explode and burst; the ordinary idea is that the explosion is the cause while the rupture is the effect. 1 Bouvier’s Law Dictionary, Rawle’s Third Revision, page 1161 citing United Life, Fire & Marine Ins. Co. v. Foote, 22 Ohio St., 340, 348; Evans v. Columbian Ins. Co., 44 N. Y., 146, 150. The acts that constitute an explosion within the meaning of the extended coverage provision’of this policy must be determined from the language of the policy, the ordinary uses of the word, the common experience of men, and their general notions in matters of this sort. One of the definitions in Webster’s dictionary for the verb explode is to ‘burst noisily.’ In Louisville Underwriters v. Durland, 123 Ind., 544, 24 N. E., 221, 223, 7 L. R. A., 399, the court said that the bursting of a boiler and the explosion of a boiler were one and the same thing. In 35 Corpus Juris Secundum, Explosion, page 215, note 3, it is said that an explosion may be produced by the sudden liberation of air from an air gun.” (Emphasis supplied.)

Applying this comprehensive and accurate definition to the facts of the instant case as developed through the testimony of plaintiff’s only witness, and to the entire record, we are constrained to hold that the proximate cause of the leak and resultant “water damage” was the explosion of the sausage stuffing machine.

It is our conclusion that the explosion was due to the application of compressed air to the filled stuffing machine in such a manner as to cause the metal top of the machine to burst into pieces, causing one of the exploding pieces of metal to pierce the water pipe producing the leak and subsequent “water damage,” within the meaning of the policy. On this question, we think that reasonable minds could come to only one conclusion, and that adverse to the plaintiff.

For the reasons stated, the judgment of Municipal Court is affirmed.

Judgment affirmed.

Hurd, P. J., Kovachy and Skeel, JJ., concur.


author: Fess, J.

text:
    Meek, Appellee, v. Schwanbeck, Appellant.
    (No. 4703
    Decided May 11, 1953.)

      Messrs. Marshall, Melhorn, Block & Belt and Mr. Arnold Bunge, for appellee.

      Messrs. Fuller, Harrington & Seney and Mr. Gerald Riley, for appellant.
   Fess, J.

This is an appeal on questions of law from a finding and judgment of the court, without the intervention of a jury, in favor of the plaintiff in the sum of $851.33.

On August 4, 1949, at about 3 p. m., plaintiff was driving his 1941 Buick four-door sedan easterly on Gordon Street 'toward the intersection of Hiett Avenue at a speed of approximately 20 miles per hour. At the same time, defendant was driving her 1934 Ford coupe in a northerly direction on Hiett Avenue, approaching the intersection. Plaintiff testified that a two-story residence occupies the lot on the southwest corner of the intersection, which residence ‘ ‘ sits rather high on a terrace and there is a hedge in front of it, but if you get up, well, within 10 feet of the curb you can see down the street,” and that “the terrace is back far enough you can see down the street before you get into the intersection.” Defendant testified that she would have to get right up to the intersection before she could see what was approaching from her left. As plaintiff was about to enter the intersection at a point 10 feet therefrom, he looked to his right and saw the defendant’s car approaching about 100 feet down Hiett Avenue. Thereafter, he proceeded into and across the intersection without again looking to his right.

The prima facie speed limit in the area of the collision was 25 miles per hour. On direct examination, no inquiry was made of plaintiff regarding the speed of defendant’s car, but upon cross-examination, he said she must have been traveling 35 to 40 miles per hour. It is apparent from his testimony that his estimate of defendant’s speed was based upon the suddenness and result of the collision rather than upon his observation at the time he looked. The trial court found that “misjudging her true speed and assuming that defendant was traveling at a reasonable and proper rate of speed and that he had plenty of time to cross Hiett Avenue before defendant would reach the intersection, plaintiff proceeded into the intersection.”

As defendant was about to enter the intersection, she observed plaintiff’s car just about in the middle of the intersection about two car lengths ahead of her. Instead of turning her car to her left, she applied her brakes and turned to the right in an effort to avoid the collision. The left front end of her car struck defendant’s car at a point immediately in front of its right rear wheel. The evidence is in dispute as to whether plaintiff’s car was within the intersection or was just leaving it. The trial court found that plaintiff’s car was leaving the intersection.

Although plaintiff’s automobile was 1,200 pounds heavier than defendant’s, plaintiff’s automobile, as a result of the impact, swung around in an arc of approximately 90 degrees and the left rear end collided with a utility pole 15 feet from the east curb of Hiett Avenue on the north side of Gordon Street. After the collision, defendant’s automobile stopped almost at the point of impact. In the conclusions of fact, the court found that plaintiff was free from negligence and that the sole proximate cause of the collision and resultant damage to plaintiff’s automobile was the negligence of the defendant in driving her automobile at a speed greater than was reasonable and proper, having due regard to the traffic, surface and width of the streets and the other conditions then existing, in failing to keep her automobile under control, in failing to keep a proper lookout for other vehicles lawfully using said thoroughfares, particularly the automobile driven by the plaintiff, in failing to give any signal or warning of her intention to enter said intersection, and in failing to stop her automobile, slacken the speed thereof, or divert the course thereof so as to avoid striking plaintiff’s automobile.

Again we are confronted with the perplexing problem of the relative rights and obligations of drivers simultaneously approaching an intersection. The statutory rules with respect to right of way are designed to avoid those dangers inherent in simultaneous approaches by requiring a yielding of the right of way, and to prevent careless drivers from crashing highway intersections. Since Morris v. Bloomgren, 127 Ohio St., 147, 187 N. E., 2, 89 A. L. R., 831, the principle has been definitely established that the driver approaching from the left must yield the right of way to a driver approaching from the right, provided the otherwise favored driver is proceeding in a lawful manner. It was to be hoped that Morris v. Bloomgren, supra, had settled the confusion which had arisen following Heidle v. Baldwin, 118 Ohio St., 375, 161 N. E., 44, 58 A. L. R., 1186, in 1928, and George Ast Candy Co. v. Kling, 121 Ohio St., 362,169 N. E., 292, in 1929. But in the intervening twenty years further difficulty has been experienced in the application of definitive common-law rules of conduct concerning the relative rights and duties between a driver approaching from the left and a driver approaching from the right in an unlawful manner.

It is a common trait of human nature that one who makes a mistake is inclined to excuse his own conduct and blame the result on another. And it is quite natural for a plaintiff not having the right of way who suffers damage in an intersection collision to say that the defendant was approaching at an excessive rate of speed or was driving on his left hand side of the highway. In the face of such testimony, the relative obligations of the drivers are governed by the rules of common law, and frequently the question of the negligence of the defendant, the contributory negligence of the plaintiff, and the proximate cause of the injury are for the jury. But notwithstanding the evidence tends to show that the defendant approached the intersection in an unlawful manner, the plaintiff is not absolved from his duty to exercise ordinary care under the circumstances. It is hardly necessary to say that the fact that a defendant has lost his right of way does not give the plaintiff such right of way. Suppose, for example, a plaintiff observes the defendant approaching at a lawful rate of speed but upon the left hand side of the highway. If the plaintiff enters the intersection mistakenly thinking he has time to cross and is struck, such plaintiff would be guilty of negligence proximately contributing to his damage as a matter of law. The difficulty arises in determining under the common-law rules of negligence the relative obligations of the drivers of the converging vehicles. Neither driver has the right of way. Each driver is bound to exercise ordinary care. Each driver, with knowledge of the imminent approach of the other, enters the intersection at his peril. Merely because a plaintiff may assume that a driver on his right will proceed in a lawful manner does not absolve the plaintiff from his duty to enter the intersection with care.

We are not inclined to hold that the unfavored driver should make absolutely sure that he can enter the intersection safely — nevertheless, an unfavored driver about to enter an intersection, who observes another vehicle approaching from his right and who guesses from a casual glance at the approaching vehicle that he can cross in safety, does not exercise that degree of care which an ordinarily prudent unfavored driver should exercise under the circumstances. Rubin v. Wasser, 61 Ohio Law Abs., 76, 103 N. E. (2d), 293; Kellar v. Miller, 67 Ohio App., 361, 36 N. E. (2d), 890; Willard v. Fast, 75 Ohio App., 225, 61 N. E. (2d), 807; Williams v. Judd, 23 Ohio Law Abs., 450, 34 N. E. (2d), 799. It is the duty of the unfavored driver to make such observation as to ascertain with reasonable certainty that he can cross safely. The unfavored driver is not to be considered to have fulfilled Ms duty to exercise due care for Ms own safety where, in passing into and attempting to cross an intersection in front of an approaching veMcle, he merely looks, and, having seen the approacMng vehicle, thinks he has ample time to cross its pathway in safety. Not only should he look and see what he can see, but he should look and see carefully. He has the duty of making a reasonably careful observation of approacMng traffic. He should not only look and see what is observable, but he should exercise due diligence in estimating the distance an approaching vehicle is away and the speed at wMch it is nearing.

In the instant case, as plaintiff was about to enter the intersection, he observed the defendant’s automobile one hundred feet to his right; he says he.misjudged her speed and without stopping or making any further observation for his own safety proceeded to cross the intersection and was struck.

It is apparent that plaintiff moved into the intersection without having any real idea of the exact position or speed of defendant’s vehicle. Although he looked, he looked negligently. Having moved forward, he did not again look to his right, if at all, until an instant before the collision. As plaintiff moved forward, he could have again looked to his right, and could have seen that he had originally miscalculated defendant’s speed. Having moved forward, a mere glance to his right would have disclosed his danger, which glance would have afforded Mm the opportunity to stop before reaching the center of the intersection and possibly avert the collision.

Such conduct amounts to indifference to danger. Without due regard to the position and speed of defendant’s vehicle, plaintiff took a chance on beating defendant’s vehicle across the intersection. Under such circumstances, reasonable minds would agree that the conduct of the plaintiff fell below the standard to which he should have conformed to protect himself from damage. A definite inference of contributory negligence on the part of the plaintiff thereby arose which, in our opinion, the evidence failed to dispel.

The finding of the trial court, that the plaintiff was free from negligence, and the judgment are manifestly against the weight of the evidence.

The judgment of the trial court is reversed and the cause remanded for a new trial.

Judgment reversed and cause remanded.

Conn and Deeds, JJ., concur.

      “Ordinarily the operator of a vehicle is able to ascertain before he reaches the in tereeciion whether another vehicle is approaching from his right: but, in any event, after entering the intersection he has a further leeway of some distance between the point of entering the intersection and its center for ascertaining such approach before he drives into the path of the vehicle possessing the right of way.” Morris v. Bloomgren, supra, 154.


text:
    In re Golib.
    (No. 5222
    Decided January 20, 1955.)

      Mr. Joseph G. Rotondo, for petitionér.

      Mr. Frank, H. Kearns, prosecuting attorney, and Mr. Joseph Poorman, for respondent.
   Per Curiam.

This is an action in habeas corpus, originating in this court. The facts have been stipulated.

The petitioner was indicted for forgery by the G-rand Jury of Franklin County. On February 2, 1954, after arraignment and the entering of a plea of not guilty, an order was made as follows:

“This day upon application of the prosecuting attorney and for good cause shown, it is ordered by the court that nolle prosequi be entered in this indictment.”

Upon the face of the record, it appears that this order was legally and properly entered under the provisions of Section 2941.33, Revised Code, which read as follows:

“The prosecuting attorney shall not enter a nolle prosequi in any cause without leave of the court, on good cause shown, in open court. A nolle prosequi entered contrary to this section is invalid.”

In a subsequent term, to wit, on December 28, 1954, an order vacating the former order was entered, which order states as follows:

“It appearing to this court that the nolle prosequi entered by this court was entered contrary to statute R. C. 2941.33, in that good cause was not shown, [it] is hereby declared invalid and is ordered vacated and set aside.”

The petitioner was rearrested and is now in custody.

It does not appear from the record that a motion or petition was filed requesting the vacation of a former order; neither does the record show that notice was given or summons issued to the adverse party, or that an appearance was made. Ordinarily, in the absence of proof to the contrary, we would be required to indulge the presumption of the regularity and validity of the order, but for defects apparent upon the face of the record the presumption of validity does not obtain.

It has been held that in a criminal case the court has no power or authority to vacate its order after term except in the manner prescribed by statute. In re Robinson, 8 Ohio App., 391, 393; 12 Ohio Jurisprudence, 713, Section 693. Counsel for respondent contend that Section 2325.01 and related sections of the Revised Code, relative to relief after judgment, apply. However, the record fails to show that a' motion to vacate was filed and notice given as required by Section 2325.04, Revised Code, or a petition filed on which summons was issued and served as required by Section 2325.05, Revised Code. In giving the provisions of these sections full application we would be required to hold that the failure to file a motion or petition and give notice or serve summons as required by statute invalidated the order of the court which attempted to vacate the order of nolle prosequi. The failure to comply with the statutory requirements with respect to vacation of orders after term was not merely an irregularity which could be taken' advantage of only by appeal, but deprived the court of jurisdiction to make the order. Assuming that these sections apply to a criminal proceeding, the court was without jurisdiction and the order of vacation was null and void. Andrews v. Ackerman Coal Co., 59 Ohio App., 65, 68, 17 N. E. (2d), 274; Schliewe v. Poole, 18 C. C. (N. S.), 265, 266, 33 C. D., 31; Nye v. Stillwell B. S. & V. Co., 12 C. C., 40, 5 C. D., 335; Coyne v. Lyman, 8 Ohio Law Abs., 497; Crawford v. Mirman, 2 Ohio Law Abs., 282; 23 Ohio Jurisprudence, 1152, Section 1022; see, also, Grelle, Jr., v. Humbel, 84 Ohio App., 277, 81 N. E. (2d), 718. The court lacking jurisdiction to make the order dated December 28, 1954, it would follow that the order of the court dated February 2, 1954, is still in full force and effect. If we adopt this theory of the case, the petitioner would be entitled to be released from custody. Inasmuch as counsel for petitioner contends that Section 2325.01 and related sections of the Revised Code have no application, we do not choose to rest our ruling alone on the application of these sections to the facts of record. But we find no comparable section to Section 2325.01, Revised Code, in the Criminal Code (Title 29, Revised Code).

We come now to discuss the contention of counsel for petitioner which we consider to be more important and determinative of the issue presented, to wit, after entering the nolle prosequi order as provided by statute, the court lacked jurisdiction to make an order at a subsequent term reinstating the original indictment and prosecution under it. Counsel for .respondent contend that the court may vacate a nolle prosequi after term, citing in support thereof 22 Corpus Juris Secundum, 711, Section 463; Commonwealth v. McLaughlin, 293 Pa., 218, 142 A., 213; and Price v. Cobb, 60 Ga. App., 59, 3 S. E. (2d), 131, cited in the footnote. Unquestionably, this is the minority view. The authorities are in disagreement. 112 A. L. R., 386; 14 American Jurisprudence, 966, Section 295; 27 American Jurisprudence, 600, Section 22; 22 Corpus Juris Secundum, 704, 711, Sections 456, 463. In 112 A. L. R., on page 386, the majority rule is stated as follows:

“The general rule is that where in a criminal proceeding the prosecuting attorney causes the entrance of an unconditional nolle prosequi or dismissal of the indictment or information, the proceeding is terminated, and the same indictment or information cannot be reinstated at a subsequent term and prosecution thereon resumed.”

The authorities clearly hold that during term the court may set aside its order of nolle prosequi and reinstate the indictment, but after term the overwhelming weight of authority is that a new indictment must be brought in order to prosecute the offender for the same offense. We have examined numerous cases cited in 22 Corpus Juris Secundum, 704, Section 456, and in the supplements, together with all t,he cases cited in 112 A. L. R., 386, and the supplements, and we are constrained to apply the rule of law pronounced in those cases to the issue presented here. Among the cases following the majority view are: People v. Watson, 394 Ill., 177, 68 N. E. (2d), 265; State v. Van Ness, 109 Vt., 392, 199 A., 759, 117 A. L. R., 415; State v. Veterans of Foreign Wars, 223 Iowa, 1146, 274 N. W., 916, 112 A. L. R., 383; United States v. Fox, 43 F. Supp., 582, affirmed 130 F. (2d), 56 (C. C. A., 3); Woodworth v. Mills, 61 Wis., 44, 20 N. W., 728, 50 A. R., 135; Willingham v. State, 14 Ala., 539.

While the issue presented is one of first impression in Ohio, our Supreme Court, in Douglas v. Allen, 56 Ohio St., 156, 46 N. E., 707, used language which is in accord with the weight of authority. The statement of the court, which under the issue there presented may be found to be obiter dictum, begins on page 159, and is as follows:

“Considering the question on principle, it would seem that the reason of the rule requiring the termination of the prosecution before the commencement of the action, is as well satisfied where the prosecution is ended by a nolle prosequi, followed by the discharge of the accused, as it is by his acquittal of the charge. The prosecution being so ended, there can thereafter be no conviction of the accused in that proceeding, and therefore no opportunity to establish in that proceeding the existence of probable cause for the prosecution. True, a nolle may be entered at a time when it will not preclude another prosecution for the same offense; but the institution of another prosecution requires a new complaint or indictment, and it becomes a new proceeding. The former one, after the discharge of the defendant therefrom, cannot be reinstated or revived and proceeded .with; or if it could be, unless that is done within the proper time, the prosecution would nevertheless be ended. ’ ’

In that case the accused brought an action for malicious prosecution. The question presented was whether the prosecution had terminated. The court held that the prosecution had legally terminated, and that the suit could be maintained.

While this court, in the application of the majority rule to the issue here presented, is required to rule that the petitioner cannot be held to answer the charge under the original indictment, we must observe that the authorities following the majority view hold that after a nolle prosequi has been entered, at a subsequent term the offender in a proper case may be prosecuted under a new indictment.

Petitioner ordered discharged from custody.

Petitioner discharged from custody.

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


author: Deeds, J.

text:
    Applebaum, Appellee, v. Smith et al., Appellants.
    (No. 4804
    Decided December 13, 1954.)

      Mr. Cyrus G. Jaffee, for appellee.

      Messrs. Winchester & Winchester, for appellants.
   Deeds, J.

This is an appeal on questions of law from a judgment of the Court of Common Pleas of Lucas County. The parties will be referred to in this opinion as they appeared in the Court of Common Pleas — the plaintiff-appellee as the plaintiff, and the defendants-appellants as the defendants.

The petition of the plaintiff in the Court of Common Pleas contained two causes of action. The first cause of action alleged in substance that on July 3, 1952, defendants executed and delivered to Jacob G-olner their promissory note in the principal sum of $1,100 with interest at the rate of 6 per cent per fl.rmnm, payable at the rate of $35 or more per month commencing on August 3, 1952, and that on July 15, 1952, plaintiff purchased said note for a valuable consideration and thereby became a bona fide holder of the note for value in due course.

It was alleged further in the first cause of action that the note provided that if any installment of principal or interest should not be paid when due it should bear interest at the rate of 8 per cent per annum, and that the note also contained a provision that if defendants should be in default for 30 days in the payment of principal or interest, then the entire principal sum with interest should become due and payable.

Plaintiff alleged further that all the installments payable by the terms of said note becoming due on November 3, 1952, and thereafter were delinquent for more than 30 days and that, therefore, there was due plaintiff from the defendants the sum of $1,011.10 with interest at the rate of 8 per cent per annum from October 3, 1952, and interest at the rate of 8 per cent on all overdue installments of interest.

The second cause of action in the petition incorporated by reference all the allegations of the first cause of action and alleged the execution by the defendants of a mortgage encumbering certain real estate described and owned by the defendants to secure the payment of the promissory note referred to in the first cause of action, and that the conditions of the mortgage had been broken, and also that plaintiff was required to pay an insurance premium in the sum of $49 for insurance coverage on the mortgaged premises.

The prayer was for a judgment upon the promissory note in the sum of $1,011.10 with interest at the rate of 8 per cent, and, also, for a judgment for the sum of $49 representing the amount paid for insurance with interest at 6 per cent, foreclosure of the mortgage, and for a sale of the real estate described and a marshalling of liens.

The defendants filed their answer and cross-petition in which they admitted the execution of the promissory note described and that defendants were in default for certain payments. Defendants admitted also the execution of the mortgage and denied generally all the other allegations of the petition.

Answering further and by way of cross-petition, the defendants alleged affirmatively that on July 3, 1952, they borrowed the sum of $500 from Jacob Golner; that Jacob Golner exacted from them the promissory note in the sum of $1,100, which was sued on by the plaintiff; that the plaintiff was not a bona fide purchaser of the note; and that plaintiff purchased the note with actual notice of the usury practiced against the defendants by Jacob Golner.

The defendants alleged further that they were willing to pay the amount owed by them on the note with legal interest thereon and prayed the court to require a reduction in the amount of the note to the sum of $500, being the amount loaned to the defendants.

The trial in the Court of Common Pleas was had before the court without the intervention of a jury and resulted in a judgment in favor of the plaintiff in the sum of $1,104.63 with interest at the rate of 6 per cent from April 20, 1954, and the court further ordered that, unless the defendants made payment to the plaintiff of such amount within 30 days, the mortgage be foreclosed, the real estate sold and'the judgment satisfied from the proceeds of such sale. The relief prayed for in the cross-petition of the defendants was denied and the cross-petition was dismissed. Thereafter a motion for new trial filed by the defendants was overruled by the trial court.

The case is before this court for a review upon a transcript of the proceedings in the Court of Common Pleas, the bill of exceptions, and the briefs and oral arguments of counsel for the respective parties.

Two issues determinative of this appeal are presented by the record before us, as follows:

Was the promissory note in the sum of $1,100 violative of the laws of the state in effect, limiting the rate of interest which may be charged, thereby rendering such note usurious? In the event it be determined that the note provided for the payment of a rate of interest contrary to law, was the plaintiff a holder of the note in due course?

The provisions of the Bevised Code relating to interest, being applicable and pertinent to the transaction involved in the case now before the court, are as follows:

Section 1309.01. “The parties to a bond, bill, promissory-note, or other instrument of writing for the forebearance or payment of money at any future time, may stipulate therein for the payment of interest upon the amount thereof at any rate not exceeding eight percent per annum, payable annually.”

Section 1309.02. “Upon all judgments, decrees, or orders, rendered on any bond, bill, note, or other instrument of writing containing stipulations for the payment of interest in accordance with Section 1309.01 of the Revised Code, interest shall be computed until payment is made at the rate specified in such instrument.”

Section 1309.03. “In cases other than those provided for in Sections 1309.01 and 1309.02 of the Revised Code, when money becomes due and payable upon any bond, bill, note, or other instrument of writing, upon any book account, or settlement between parties, upon all verbal contracts entered into, and upon all judgments, decrees, and orders of any judicial tribunal for the payment of money arising out of a contract, or other transaction, the creditor is entitled to interest at the rate of six per cent per annum, and no more.”

Section 1309.04. “Payments of money or property made by way of usurious interest, whether made in advance or not, as to the excess of interest above the rate allowed by law at the time of making the contract, shall be taken to be payments made on account of principal; and judgment shall be rendered for no more than the balance found due, after deducting the excess of interest so paid.”

It appears from the evidence' in the record before the court that on the date of, and contemporaneous with, the execution and delivery of the note and mortgage to Jacob (Joiner, the defendants also affixed their signatures to an instrument designated a contract, appearing in the record as an exhibit as follows:

“Toledo, Ohio, July 3, 1952.
“J. (Joiner, Toledo, Ohio.
“Dear Sir:
“For your procuring for us, a purchaser for a second mortgage and note, or a series of notes, for eleven hundred dollars, with monthly payments of thirty-five dollars, including interest at six (6%) percent, which we will execute to you, your heirs and assigns, on our property, for the purpose of your discounting said mortgage and note, or notes fifty (50%) percent, or $550 Dollars, we will pay you for your work and labor .... percent, or......dollars.
“Location/Description of Property.
“3101 N. Erie St., Toledo, Lucas Co., Ohio.
“We will furnish a certificate of title showing our property to be free and clear, other than a mortgage, not to exceed $3,500 dollars.
“We will pay the mortgagees expense of his attorney for the examination of the certificate of title.
“Hiram C. Smith “Ivah P. Smith.”

It is also disclosed by the evidence in the record that the plaintiff, Dorothy Applebaum, was at the time of the trial in the Court of Common Pleas and at the time of the execution and delivery of the several papers and documents involved in the case the wife of Jacob Golner, and that both were living at the same place of residence as man and wife, and the record does not disclose that defendants knew or were informed by Jacob Golner that such relationship existed between plaintiff and Jacob Golner.

It appears further from the evidence in the record that Jacob Golner dictated and mailed a notice signed by plaintiff in the form of a letter addressed to the defendants, respecting the acquisition by the plaintiff of the note and mortgage, and directing the manner in which payments should be made, a carbon copy of which is before us in the record, as follows:

“Toledo, Ohio, July 15,1952.
“Hiram & Ivah Smith,
“3101 No. Erie St.,
“Toledo, Ohio.
“Dear Sir & Madam:
“The mortgage dated July 3, 1952, executed by both of you to Jacob Golner, for the sum of Eleven Hundred ($1,100) Dollars, payable thirty-five ($35) dollars monthly purchased by the writer.. Said payments beginning on the 3rd of this coming month.
“Please forward your payments to Mr. Golner, who will act as the writer’s Agent in the matter.
‘ ‘ Sincerely -yours,
“Dorothy Applebaum,
“337 W. Central Av.,
“Toledo 10, Ohio.”

It also appears and is undisputed that prior to the commencement of this action defendants had made three payments of $35 each to the plaintiff toward the payment of the loan.

We find, and so hold on the evidence in the record before us on this appeal, that Jacob Golner advanced or loaned the defendants the sum of $500, and that, to the extent of the excess of that amount in the sum of $600, the note in the sum of $1,100 contravenes the laws of the state controlling the permissible rate of interest chargeable, as hereinbefore quoted, and was, therefore, to such extent illegal and usurious.

The foregoing conclusion based on the record in this case is in accord with the established policy of the courts of this state in the analysis of transactions, wherein it appears to have been the purpose of persons in commercial transactions to evade the laws of the state designed to prohibit usury, and such settled policy in this state concerning the subject has been well stated in 40 Ohio Jurisprudence, 833, Usury, Section 11, as follows:

“Devices to Conceal Usury. The cupidity of lenders and the willingness of borrowers to concede whatever may be demanded or to promise whatever may be exacted in order to obtain temporary relief from financial embarrassment, as would naturally be expected, have resulted in a great variety of devices to evade the usury laws; and to frustrate such evasions the courts have been compelled to look beyond the form of the transaction to its substance, and they have laid it down as an inflexible rule that the mere form is immaterial, but that it is the substance which must be considered. The question is not what have the parties called the transaction, but, what do the facts and circumstances require the court to call it. The court will scan the transaction carefully to ascertain its real substance for the purpose of determining whether it is a disguised loan or something else. Ordinarily each case must be decided upon its own particular facts. If the total amount contracted to be paid at any time, by the borrower for the use of the money actually received, for the period of time it is used, regardless of the names used for various charges, is in excess per annum of 8 percent, then the excess is usurious. It matters not as to the form which the usurious transaction may be made to assume, whether it is plainly written on the face of the bond, added to the principal debt, paid in advance, evidenced by a collateral agreement, embodied in a contemporaneous verbal agreement or in a note and mortgage made to a third party who has no interest therein and who transfers it to the lender, or is called a premium.

“That a transaction is a shift or device to evade the usury law may be established by proving facts from which such purpose may be inferred. But whatever the shifts or devices resorted to to get more than legal interest may be, they must enter into and be of the substance of the contract at the time it is made, to make it usurious. ’ ’

This court is compelled to its above conclusion by reason of the lack of any evidence of probative value tending to support the claim of G-olner that he contemplated or did render any services on behalf of the defendants which would justify the compensation to be paid him under the terms of the novel employment contract which he required the defendants to sign. It is also obvious that the loan could have been made directly by the plaintiff to the defendants, providing for a rate of interest which would be in conformity with the laws of the state, as there is practically a total lack of evidence in the record before us that G-olner exerted, or that he intended to exert, any effort justifying extraordinary compensation in attempting to secure money to be loaned to the defendants from sources beyond his own immediate family.

With a view to limiting this opinion within reasonable bounds, the writer will not undertake to comment upon the analogy existing in many of the reported decisions of reviewing courts in the state and the case now before the court, but will cite as being analogous the following:

Critchfield v. Mahoney, 42 Ohio Law Abs., 540, 541; Independent Foods, Inc., v. Lucas County Savings Bank, 46 Ohio Law Abs., 434, 70 N. E. (2d), 139; In re Proteau, 67 Ohio Law Abs., 515, 110 F. Supp., 904 (Affirmed, Thompson v. Herberich-Hall-Harter Co., 202 F. (2d), 954); Dunkle v. Renick, 6 Ohio St., 527; Lockwood v. Mitchell, 7 Ohio St., 388; McClelland v. Sorter, 39 Ohio St., 12; Capital Loan & Savings Co. v. Biery, 134 Ohio St., 333, 16 N. E. (2d), 450.

This court has reached the further conclusion respecting the remaining and decisive issue on this appeal, .whether the plaintiff was a holder in due course of the note in question, that as a matter of law the plaintiff, in view of the almost wholly undisputed evidence in the record, was not a holder in due course of the note upon which the Court of Common Pleas entered the judgment now before this court.

The applicable provisions of the Negotiable Instrument Law of the state (Revised Code) to the facts in the record before the court are as follows:

Section 1301.54. “A holder in due course is one who has taken the instrument under the following conditions:

“ (A) That it is complete and regmlar upon its face;
“(B) That he became the holder of it before it was overdue, and without notice that it previously had been dishonored, if such was the fact;
“(C) That he took it in good faith and for value;
“(D) That at the time it was negotiated to him he had no notice of any infirmity in the instrument or defect in the title of the person negotiating it. ”

Section 1301.57. “The title of a person who negotiates an instrument is defective within the meaning of Sections 1301.01 to 1301.86, inclusive, and 1303.01 to 1303.47, inclusive, of the Revised Code, when he obtained the instrument, or any signature thereto, by fraud, duress, or other unlawful means, or for an illegal consideration, or when he negotiates it in breach of faith, or under such circumstances as amount to a fraud.”

Section 1301.59. “A holder in due course holds the instrument free from any defect of title of prior parties, and free from defenses available to prior parties among themselves, and may enforce payment of the instrument for its full amount against all parties liable thereon.”

Section 1301.60. “In the hands of any holder other than a holder in due course, a negotiable instrument is subject to the same defenses as if it were nonnegotiable. A holder who derives his title through a holder in due course, and who is not himself a party to any fraud or illegality affecting the instrument, has all the rights of such former holder in respect to all parties prior to such former holder.”

Section 1301.61. “Every holder is prima facie a holder in due course. When it is shown that the title of any person who negotiated the instrument was defective, .the burden is . on the holder to prove that he or some person under whom he claims acquired the title as a holder in due course. The last rule does not apply in favor of a party who became bound on the instrument prior to the acquisition of such defective title.”

We believe that the established judicial interpretation of the applicable provisions of the Negotiable Instrument Law of the state pertinent to the legal status of the plaintiff as a holder of the note in issue in this case has been stated in the syllabus in Regan v. Sherman, 1 Ohio App., 273, as follows:

“By virtue of Sections 8157 and 8164, General Code, in an action on a promissory note by an endorsee who acquired title from the original holder, when it is shown that the title of the original owner was defective by reason of misrepresentation and fraud in procuring the note and failure of consideration therefor, the burden is on the holder to prove that he acquired the title as a holder in due course.”

In the case of Thompson v. Citizens National Bank of Adams, New York, decided by the Circuit Court for Lucas County, 13 C. C. (N. S.), 515, 22 C. D., 131, in the second paragraph of the syllabus, we find a like interpretation of the law applicable: “Under the provisions of Section 8110, General Code, in an action on a note by an endorsee the burden is on the holder of the note to show, when a defense has been established against the original payee, that he or some one under whom he claims acquired the title as a holder in due course.”

It should be noted that the decision of the Circuit Court in the Thompson case, supra, was affirmed by the Supreme Court without opinion, 82 Ohio St., 446. See, also, National City Bank of Cleveland v. Erskine & Sons, Inc., paragraph one of the headnotes, 65 Ohio Law Abs., 51, 110 N. E. (2d), 593; Discount & Deposit State Bank v. Litt, 5 Ohio App., 439; Bradley v. Apex Loan Co., 11 Ohio Law Abs., 264; Yates v. Bates, 34 Ohio Law Abs., 378, 37 N. E. (2d), 395.

Also, it is the view of the writer of this opinion that under the title “Of Bona Fide Character,” 29 Ohio Jurisprudence, 1264, Negotiable Instruments, Section 609, the principles of law pertinent to the issue now under consideration as established in this state are stated clearly, and, as stated, are supported uniformly by the decisions of the courts.

It is therefore the finding and judgment of this court that the amount of the loan made to the defendants as shown by the evidence in the record before us was the sum of $500, upon which sum the plaintiff, is entitled to interest at the legal rate of 6 per cent per annum computed from July 3, 1952, and that defendants are entitled to credit for the payments hereinbefore referred to in the aggregate sum of $105.

We consider that the foregoing finding of this court is sanctioned by, and is in accord with, the decision of the Supreme Court in the case of McClelland v. Sorter, supra.

The judgment of the Court of Common Pleas is, therefore, modified in accord with the above finding and, as modified, is affirmed.

Judgment modified and, as modified, affirmed.

Fess and Conn, JJ., concur.


author: Wiseman, P. J.

text:
    Central Ohio Emulsion Corp., Appellant, v. William Whitman Co. et al., Appellees.

      (No. 5094
    Decided September 16, 1954.)

      Mr. Robert D. Hamilton, for appellant.

      Messrs. Eagleson & Laylin and Messrs. Jones, Day, Cockley & Reavis, for appellees.
   Wiseman, P. J.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Franklin County quashing the service of summons and dismissing the action.

The principal issue in the case involves the validity of a service of summons on the statutory agent of one of the defendants, The National Refining Company, an Ohio corporation. The principal office of the corporation is in Cuyahoga County, where the statutory agent resides. The corporation conducts no business in Franklin County; it has no office or agent in Franklin County, and none of the chief officers reside or are located in such county.

On September 15, 1952, the statutory agent, while in Columbus on business unrelated to The National Refining Company, was personally served with summons in Franklin County. Is persona] service on a statutory agent valid when service is made in a county other than a county where such agent resides? Section 8623-129, General Code, in part, provides:

“1. Every corporation shall have and maintain an agent, who shall be a natural person and a resident of the county in which the principal office of the corporation is located, upon whom process * * * may be served.”
“8. Process in any suit, action or proceeding against any corporation * * * may be served upon such corporation by delivering a copy thereof to its designated agent or by leaving a copy thereof at his address as the same appears upon the record in the office of the Secretary of State.”

The provisions of the above cited section are in pari materia with the provisions of Section 11272, General Code, which, in part, provides:

“An action other than one of those mentioned in the next four preceding sections, against a corporation created under the laws of this state, may be brought in the county in which such corporation is situated, or has or had its principal office or place of business, or in which such corporation has an office or agent, or in any county in which a summons may be served upon the president, chairman or president of the board of directors or trustees or other chief officer.”

The four preceding sections have no application here. Section 11272 provides where the action may be brought; it is a venue statute. Section 8623-129 provides how service shall be made on a statutory agent when the action is properly instituted. In this case the action is not properly instituted in Franklin County. Process statutes do not control venue statutes. 9 Fletcher, Cyclopedia of The Law of Private Corporations, Revised and Permanent Edition, 133, Section 4353.

The statutory agent is not a “chief officer” of a corporation within the meaning of Section 11272, General Code.

All motions to quash the service of summons were properly sustained. In passing on the motions first filed, the court, in its written opinion, found venue to be in Cuyahoga County, but this finding was not carried into the final entry. Under the facts in this case the order sustaining the motion to quash, without more, was not a final order. Towne v. National Refinery Co., 10 Ohio App., 265; Carr v. Marion Masonic Temple Co., 67 Ohio App., 521, 37 N. E. (2d), 974. The validity of the service on a statutory agent remains the principal issue in the case. On this issue the court sustained the motion and dismissed the action, giving rise to an appealable order.

As we find no error in the record prejudicial to the rights of the appellant, the judgment is affirmed.

Judgment affirmed.

Miller and Hornbeck, JJ., concur.


text:
    Rigney, Appellant, v. The Cincinnati Street Railway Co., Appellee.
    (No. 7930
    Decided December 20, 1954.)

      Messrs. Ginocchio & Ginocchio, for appellant.

      Mr. C. R. Beirne, for appellee.
   Matthews, P. J.

“In an error proceeding, where it appears that the entire record is before the reviewing court, including the ruling by the trial court on motions for a directed verdict, and in the reviewing court an unsuccessful litigant seeks final judgment in his favor upon the uncontroverted facts, such litigant, if he be a defendant in error, need not file a cross-petition in error in order to secure final judgment.”

Notwithstanding the change in the law of appellate procedure since the foregoing opinion, we are of the opinion that its applicability has not been affected and that it still expresses the law of Ohio.

It is the contention of the defendant that the plaintiff having alleged specific acts of negligence in her petition and having failed to prove any single allegation, while, on the contrary, the evidence shows that defendant was not negligent in any respect, it was the duty of the trial court to have entered final judgment for the defendant, and, therefore, it is the duty of this court on this appeal to correct the error by entering the judgment in its favor which the trial court should have entered. Defendant’s conclusion is predicated upon three assumptions. The first is that the law precludes recourse to the doctrine of res ipsa loquitur in all actions in which specific acts of negligence are pleaded, as in this case. The second assumption is that there is no evidence tending to prove any of the specifically pleaded acts of negligence. The third assumption is that the allegation that the bus was in a mechanically defective condition rendering it unfit and dangerous for the carrying of passengers upon the public highway, and that, therefore, it was negligent to use it, did not enlarge the issue or furnish the basis for the application of the doctrine of res ipsa loquitur, because the bus — the instrumentality — was not in the exclusive control of the defendant.

(1) Is it the law of Ohio that the allegation of specific acts of negligence excludes the application of res ipsa loquitur ?

It is true that in a case in which the pleadings and proof relate to specifically alleged acts of negligence there is no basis upon which to predicate an inference of negligence other than the evidence relating to the specifically alleged acts. The Supreme Court of Ohio so construed the record as to bring Winslow v. Ohio Bus Line Co., 148 Ohio St., 101, 73 N. E. (2d), 504, within this category. In answer to the argument that the case called for the application of the rule of res ipsa loquitur, the court held, as stated in the first paragraph of the syllabus:

“The doctrine of res ipsa loquitur is not applicable in a case where the petition and proof disclose that plaintiff had knowledge of the facts and circumstances showing the claimed negligence of defendant. ’ ’

The court in the Winslow case analyzed the evidence and found that “no reasonable inference can be drawn but that appellee ’s servant was negligent. ’ ’ That the court had no intention of overruling or qualifying any of its prior decisions on the subject is made manifest by the fact that it cited most of them with approval. The court cited with approval the case of Fink v. New York Central Rd. Co., 144 Ohio St., 1, 56 N. E. (2d), 456, in which the petition and proof did not present specific acts of negligence, but where, nevertheless, the court in the Fink case, at page 7, took occasion to say: ‘ ‘ This state has adopted the rule, which is supported by the great weight of authority, that if the allegations of the petition and the proof in support thereof call for the application of the rule it should be applied irrespective of whether the petition contains allegations of specific acts of negligence.”

The court in the Winslow case also approved without qualification the case of Scovanner v. Toelke, 119 Ohio St., 256, 163 N. E., 493, in which the petition contained allegations of specific acts of negligence very similar to those in the petition in this case, and, if defendant’s analysis of the evidence is-accepted, also similar, in that there would be no evidence to support the specific allegations of negligence. Notwithstanding the absence of evidence of the specific acts of negligence, the court affirmed the judgment for the plaintiff by recourse to the doctrine of res ipsa loquitur.

See, also, Manker v. Shaffer, 96 Ohio App., 350, 121 N. E. (2d), 908, in which the doctrine of res ipsa loquitur was applied notwithstanding the fact that specific acts of negligence were alleged.

So we conclude that in this case there is nothing in the pleadings and proof to preclude the application of the doctrine of res ipsa loquitur if the evidence otherwise justifies it.

(2) and (3) Let us look now at the allegations in the petition and the evidence in this case. We find that the plaintiff alleges that the bus in which she was riding as a passenger was in a “mechanically defective condition which rendered it unfit and dangerous to be operated on the highways for the purpose of carrying passengers for hire,” and that due to its mechanically defective condition, the wheels locked in their then set direction. At the same time the operator of said bus, noting the locking of said wheels, “carelessly and negligently failed to straighten said bus in its course oh the highway, and carelessly and negligently failed to stop said bus,” and as a result the bus left the highway and collided with a tree to the south of the highway.

The plaintiff testified that “as the bus made this turn it sounded like some of the mechanism fell out of the bus.” We take that to indicate that there was an actual defect in the mechanism of the bus. The operator of defendant’s bus seemed to confirm that. He testified that the bus was carrying an unusual load of passengers, and that as he was going around a curve the steering wheel locked and he was unable to control the bus. This testimony seems to us to corroborate the plaintiff’s testimony that something happened to the mechanism of the bus, indicating that the bus was defective, and tending to prove the plaintiff’s allegation that the bus was in “a mechanically defective condition which rendered it unfit and dangerous * * * for the purpose of carrying passengers for hire.”

This presents an entirely different situation than that presented in the Winslow case and, also, than cases in which sole reliance was placed upon the rule of res ipsa loquitur. In the Winslow case there was no evidence of any defective mechanism, and, as the evidence was construed by the Supreme Court, there was no evidence that the operator lost control of the bus at any time. In fact it would seem that the Supreme Court regarded the collision as resulting from the deliberate action of the operator.

As already noted, there is evidence of a mechanical defect which relieves the plaintiff from the necessity of relying on res ipsa loquitur. The fact that the bus left the highway and collided with a tree would be sufficient to require explanation by defendant. The case of Glaze v. City of Cleveland, 56 Ohio Law Abs., 414, 92 N. E. (2d), 416, is entirely dissimilar. In that case a passenger was injured by a window falling upon her arm. There was no evidence of a defect, and both passengers and operator manipulated the window. No one other than the operator had any control over the course of the bus. Furthermore, the defendant in this case is placed in the dilemma of either admitting that there was a defective mechanism, or that the operator was negligent. There is no other explanation. It was the duty of the operator to take into consideration the condition of the street.

Finally, we are of the opinion that under the allegations of the plaintiff’s petition, she was not precluded from relying on the doctrine of res ipsa loquitur. She alleged that there was a defective mechanism and that defendant was negligent in operating its bus in that condition, but she did not allege the specific act of negligence in that regard. So far as we know none of the cases holds that snch an allegation precludes reliance on the doctrine of res ipsa loquitur.

Upon this phase of the case we conclude that the court did not err in overruling the defendant’s motions to arrest the case.

At the time of her injuries, the plaintiff was employed by the United States of America as the Chief of the Accounts Section, Income Tax Division of the Office of the Collector of Internal Revenue, at Cincinnati, Ohio. As an element of her damage, resulting from defendant’s negligence, she alleged that her injuries prevented her from working for a period of 130 and 3/4 days, “to her loss of compensation in the amount of $2,489.48,” and that she would suffer further loss of employment and compensation in the future because of her injuries.

There was evidence of physical injuries that would prevent the plaintiff from, or hamper her in, the discharge of the duties of her employment for a period of time, which it is not necessary to determine exactly in view of the issue raised.

Over the plaintiff’s objection it was developed on cross-examination of the plaintiff and an official of the United States government employed in the Office of Interna] Revenue that during her absence from work the plaintiff received the same income from the United States government that she would have received had she been engaged in the discharge of the duties of her position. This resulted from the fact that under the law she was entitled to a certain amount of time each year known as annual leave and sick leave, and, also, under the law she was entitled to and had allowed this annual and sick leave to accumulate to her credit, so that at the time of her injuries there stood to her credit 90 days of unused annual and sick leave and a current leave of 26 days per year and 15 sick days leave, both with pay, and that the income she received from the United States government during her disability was based on her accumulated annual and sick leaves and was charged against and deducted therefrom, so that her accumulated credits were entirely exhausted. It appears also that the plaintiff upon leaving her employment would be entitled to receive from the United States government an amount of money calculated on the basis of her salary, multiplied by the time represented by the number of days to her credit in her annual and sick leave account.

At the request of the defendant the court gave two special charges on the subject of damages. The first was: “I charge you that you should disregard the claim which the plaintiff has made in her petition for loss of compensation from her employment because the evidence fails to support such a claim.” The second special charge on this subject was: ‘ ‘ The plaintiff has made the following claim in her petition: ‘As a result of said injuries, the term of her working life has been shortened, with the result that in the future she will not be able to be gainfully employed for as long a time as she would have been employed had she not suffered the injuries herein mentioned.’ Now I charge you, as a matter of law, that you should disregard this claim which has been made by the plaintiff in her petition because the evidence fails to support it.”

The plaintiff excepted to the giving of these special charges, and by various requests sought to have the court charge generally on the subject of compensation for loss of wages and charges against her sick and annual leave accounts, reserving her right to have reviewed the rulings of the court on the element of damages as disclosed by the evidence.

As we construe this record, the plaintiff had, by reason of past services and as a part of her compensation, accumulated, and there stood to her credit upon her employer’s books, a credit of 90 days leave from her employment without interruption of her salary, and that upon severance of the relation of employer and employee, she was entitled, as of right, to receive pay for the period of such credit as though she had actually discharged the duties of her position during such period.

The question presented by the record is whether a wrongdoer is entitled to have the damage resulting from his wrong diminished by payments made by the employer to the employee and charged against the accumulated sick and annual leave credits of the employee, resulting in extinguishment of such credits.

If we have properly analyzed this record, it seems clear that the wrongdoer has no such right.

By the great weight of the authorities it is broadly held that the liability of a third party wrongdoer is not affected by the receipt by the injured person of wages or salary from his employer for the time during which he was unable to perform the duties of his employment because of his injuries. The authorities on this general subject are collected in the A. L. R. annotation to the case of Cunnien v. Superior Iron Works Co., 175 Wis., 172, 184 N. W., 767, 18 A. L. R., 667, where it is said at page 678:

“Although the courts of different jurisdictions are not in entire agreement on the question, the amount of a recovery from a third person who is responsible for a personal injury is, in most jurisdictions, held not to be affected by the receipt by the plaintiff, from his 'employer, of wages or salary for the period during which he has suffered from the injury.”

See, also, 15 American Jurisprudence, 616, Section 200.

We think it is quite clear that recovery against the tortfeasor is not affected by payment by the employer of wages or salary or any other thing of value due and owing to the employee at the time he received his incapacitating injuries. Anything earned prior to the injuries certainly cannot be related by any sound reasoning process to the loss of wages or salary during the period of incapacity following the injuries.

In 4 Restatement of the Law of Torts, Section 920, Comment e, it is said, at page 620:

“Where a person has been disabled and hence cannot work but derives an income during the period of disability from a contract of insurance or from a contract of employment which requires payment during such period, his income is not the result of earnings but of previous contractual arrangements made for his own benefit, not the tortfeasor’s.” (Emphasis added.)

.. But it was contended in oral argument that Ohio has adopted the minority rule as exemplified in the case of Drinkwater v. Dinsmore, 80 N. Y., 390, 36 A. R., 624, and the case of Pittsburgh, G. é St. L. Ry. Go. v. Fagim, 3 N. P. (N. S.), 30, 15 O. D., 605, affirmed in 74 Ohio St., 491, 78 N. E., 1135, and in 13 Ohio Jurisprudence, 207, Section 116, which authorities were relied upon to support the contention. It is true that in 13 Ohio Jurisprudence, 207, Section 116, it is said:

“On the question of the effect of the receipt of salary or wages by an injured person, to reduce his recovery against the person causing the injury, the courts are somewhat divided; the majority rule is that such payment does not affect the recovery. In Ohio, however, the rule apparently is otherwise; in a decision of the Superior Court of Cincinnati, it is stated that, in the absence of a claim for exemplary damages, an injured party who receives wages for the time lost on account of the injury cannot recover wages for time lost as an item of damages, and this decision was affirmed without opinion by the Supreme Court of Ohio.”

It will be found, however, that this cautious statement is supported by the single citation of Pittsburgh, C. & St. L. Ry. Co. v. Fagin, supra, and that that decision is not, either expressly or impliedly, an approval of the rule by the Supreme Court of Ohio. Fagin was a public officer of the city of Cincinnati, and while on duty he was struck by one of the defendant’s engines and injured. He filed suit in the Superior Court of Cincinnati and recovered a verdict and judgment for $750. The court refused a special charge that: ‘ ‘ The plaintiff, if you find for him, can not recover for loss of time as prayed for in the petition.” On'error to the Superior Court of Cincinnati, in General Term, that court held that the special charge should have been given and granted a remittitur of the amount of the salary. The plaintiff did not challenge the correctness of this ruling. However, the defendant did prosecute error to the Supreme Court and that court affirmed the judgment without opinion in 74 Ohio St., 491. It is clear that as the ruling of the Superior Court in General Term reduced the amount of the judgment against it, the defendant, no prejudicial error was committed against it, and the affirmance of the judgment was in no sense an affirmance of the correctness of the remittitur. It should be said that the exact condition under which the plaintiff’s wages were paid to him does not appear either in the opinion of the Superior Court or in the printed record in the Supreme Court of Ohio. There is an implication in the printed, record that perhaps the rule applicable to salaries of public officers stated in 43 American Jurisprudence,' 161, Section 379, might apply, where it is stated that public officers are obliged to devote their attention to the duties of their office but that “this does not mean he shall lose * * * his right to the emoluments or salary connected with it because he may be absent or away from the office for a short, occasional, or even a protracted, period of time and does not during such period of time personally give his time and attention to the duties of the office.” If so, there would be no loss of salary and, of course, the court would be justified in excluding it as an element of damage.

In any event, we are of opinion that the Supreme Court has not promulgated any rule on this subject contrary to the weight of authority elsewhere, and that in reaching a conclusion in this case we should be controlled by the greater weight of authority, which, we believe, is in accordance with reason and justice.

For these reasons, the judgment is reversed and the cause remanded for a new trial in accordance with this opinion.

Judgment reversed and cause remanded.

Ross and Hildebbant, JJ., concur.