text:
    The State of Ohio, Appellee, v. Roof, Appellant.
    (No. 955
    Decided December 13, 1954.)

      Mr. Roy Warren Roof and Mr. John L. Roof, for appellant.

      Mr. Edgar L. Miller, for appellee.
   Per Curiam.

The. defendant was charged in an affidavit filed in the Municipal Court of Bellefontaine, Ohio, with the violation of Section 6307-31, General Code, in that “he did overtake and pass traffic to the left of the center line of said highway in a portion thereof which prohibits passing, by a clearly visible yellow line being placed to the right of the center or white line.”

Upon trial had, the defendant was found guilty, and it is from that judgment that defendant appeals to this court on questions of law.

Defendant sets forth in his assignments of error, the following :

1. The common pleas judge was without jurisdiction to sit in the Municipal Court, as a municipal judge, to hear, try and determine the within action.

2. The Municipal Court of the city of Bellefontaine, Ohio, was without county-wide jurisdiction to try, hear and determine any criminal matters, either misdemeanors or felonies, beyond the city limits of the city of Bellefontaine, Ohio.

3. The Municipal Court of the city of Bellefontaine, Ohio, committed prejudicial error in overruling defendant’s motion to quash the affidavit, and thereafter in overruling the demurrer of the defendant to the affidavit.

4. The findings of fact, the judgment, and the sentence of the court are contrary to law.

5. The finding of the court is manifestly against the weight of the evidence.

6. The finding of the court is wholly unsupported by the evidence, and entirely violates the reasonable-doubt rule of law.

7. The court committed error in the trial of the case in placing the burden of proof as to evidence to satisfy a conviction upon the defendant instead of the state.

8. The court committed prejudicial and reversible error in its pronouncement and judgment of law.

9. The court committed error in its interpretation of the law as contained in Section 6307-31, General Code, Section 6307.29, General Code, and Sections 6307-1 to 6307-110, General Code.

10. There are many other errors apparent upon the face of the record prejudicial to the rights of defendant, thereby preventing the defendant from having a fair and impartial trial.

11. Error of court in overruling motion for new trial.

The following facts, appearing in the bill of exceptions, are undisputed:

Defendant was traveling south on state route 68, and at a point one mile north of the corporation line of Beliefontaine, overtook two trucks, one a highway truck and the other a semitrailer and a 4-wheel trailer gasoline truck. The defendant pulled out of his west lane of traffic to the east lane and passed both trucks. From the point where defendant overtook the trucks, any vehicles traveling north could have been seen for several hundred yards, and within that distance there was no traffic traveling north at the time. At the point where defendant started passing the trucks there was no yellow line or other signs restricting defendant’s right to pass. After passing the first truck the defendant attempted to return to the right lane of traffic; but the two trucks were traveling so close together he was unable to do so. He then continued in the left lane until he completed passing the gasoline truck. At the point where defendant began passing the gasoline truck, there was a yellow line which continued south the entire distance traveled by defendant in passing the truck.

Defendant is charged with the violation of Section 6307-31, General Code, which reads as follows:

“The department is hereby authorized to determine those portions of any state highway where overtaking and passing other traffic or driving to the left of the center or center line of the roadway would be especially hazardous and may by appropriate signs or marks on the highway indicate the beginning and end of such zones and when such signs or markings are in place and clearly visible, every operator of a vehicle or trackless trolley shall obey the directions thereof, notwithstanding the distances set out in the preceding section.”

Section 6307-34, subdivision (b), General Code, reads as follows:

“(b) The driver of any truck, or motor vehicle drawing another vehicle, when traveling upon a roadway outside of a municipal corporation shall maintain a sufficient space, whenever conditions permit, between such vehicle and another vehicle ahead so an overtaking vehicle may enter and occupy such space without danger. The provisions of this subdivision shall not be construed to prevent overtaking and passing nor shall the same apply upon any lane specially designated for use by trucks. ’ ’

The record shows defendant violated no law at the time he passed the first truck. He was prevented from returning to the right side of the highway at the point where the yellow line began, by the fact that the two trucks were so close together there was not sufficient space for defendant to enter without danger. There was no traffic in view traveling north in the east lane of traffic and defendant was justified in continuing in the left lane until he could, without danger, cross to the west lane.

In view of the undisputed facts appearing in the record, the court holds the judgment below is contrary to the manifest weight of the evidence and is contrary to law. The court finds no other error as set forth in the assignments of error.

The judgment of the court below is reversed, and there being no dispute of fact but error in the application of the law, the court renders the judgment the court below should have rendered and orders the defendant discharged.

Judgment reversed.

Younger, P. J., Quatman and Middleton, JJ., concur.


source: Caselaw Access Project

author: Wiseman, J.

license: Public Domain

text:
    In re Estate of Clark.
    (No. 729
    Decided March 25, 1955.)

      Mr. S. E. Mote, for appellant.

      Mr. Russell E. Wise and Messrs. Spidel, Staley & Hole, for appellee.
   Wiseman, J.

This is an appeal on questions of law from a judgment of the Probate Court of Darke County dismissing the petition of the widow for an order increasing the widow’s year’s allowance. Section 2117.22, Revised Code, provides:

“On the petition of an interested person, the Probate Court may review the allowance made to the widow or children as provided by Section 2117.20 of the Revised Code, increase or diminish it, and make such order in the premises as it deems right. ’ ’

Under the provisions of the above section the widow filed her petition in the Probate Court for review of her allowance. Upon a hearing the court found that the amount fixed by the appraisers was reasonable and just. From that order this appeal was taken.

This case was before us previously. Under date of April 14, 1954, this court rendered an opinion (In re Estate of Clark, 69 Ohio Law Abs., 435) in which it reversed an order of the Probate Court refusing to fix an allowance for'the widow’s year’s support on the ground that she was separated from the husband and that for many years he had contributed nothing towards her support. In that case we held that under the statute the widow was entitled to have a year’s allowance set off to her. We applied the rationale in the opinion of the Supreme Court in the case of In re Croke, 155 Ohio St., 434, 99 N. E. (2d), 483. The case was remanded to the Probate Court for the purpose of fixing an allowance. The record shows that proper notice was given as required by law of the time and place of the meeting of the appraisers for the purpose of setting off the allowance. Neither the widow nor her counsel appeared. The appraisers fixed the allowance at $500.

Upon hearing on the petition, the trial court found that the amount set off by the appraisers was reasonable and just and in the judgment entry found that the widow had not lived with the decedent for over 20 years prior to his death; that for over 20 years the decedent had not contributed anything towards her support; that during the last nine years she lived with her son in the state of Wisconsin; and that the son was her sole support. The special findings in the judgment entry do not have the effect of separate findings of fact. Burton, Exr., v. Tax Commission, 37 Ohio App., 183, 189, 174 N. E., 361. While the record supports the findings incorporated in the judgment entry, it shows other pertinent facts which were undisputed. About two months prior to the decedent’s death the widow, who is an elderly person (the exact age not being given), broke her leg, for a period of three or four months was bedfast, and for a period of a year and one-half thereafter moved around on crutches. According to the inventory and appraisement the assets of the estate were appraised at $17,698. There was evidence presented to the effect that to care for a person of advanced years, with a broken leg, in a rest home, would cost $30 to $50 per week. Perhaps this was not the proper test to be applied, but it was evidence of some probative value to be considered by the court in fixing an allowance. Prom the record, it appears that the trial court failed to consider her advanced years, her injury, and the cost of care.

The petitioner claims that on the facts presented, the court should have increased the allowance to $1,500. This claim is based on the evidence relative to the cost of caring for such a person in a rest home.

The appellant assigns six separate errors which may be epitomized as follows: The judgment is contrary to law and against the manifest weight of the evidence; error in the admission and exclusion of evidence; error in the failure to grant an increase of the allowance on the ground that she was supported by her son; and error in overruling a motion for new trial.

The principal question for determination is the rule to be applied in fixing the amount of the year’s allowance. The pertinent part of Section 2117.20, Revised Code, provides:

“The appraisers of a decedent’s estate shall set off and allow to the widow and to the children under the age of eighteen years, or if there is no widow then to such children, sufficient provisions or other property to support them for twelve months from the decedent’s death * *

No reported opinion in Ohio has laid down a definite rule to be applied in fixing the allowance. In 18 Ohio Jurisprudence, 460, Section 358, it is stated:

“The rule as adopted by the courts for measuring the amount of the allowance, is that the amount is to be determined by taking into consideration the age of the widow, her physical condition, the manner in which decedent lived at the time of his death, and the general expenses incident to the care of the family concerned.”

In support of the text the following cases are cited: Moore v. Admr. of Moore, 46 Ohio St., 89, 18 N. E., 489; In re Estate of Mullen, 5 N. P., 392, 6 O. D., 134; In re Howland’s Estate, 7 N. P., 665, 5 O. D., 582; In re Estate of Rahe, 12 O. D., 590. These cases add little to the text above quoted.

In the case of In re Croke, supra, the court, in the opinion, on page 442, said:

“True, the amount of the allowance, depending upon the size of the husband’s estate, the social position of the parties at the time of his death, and to some extent the need of the widow following his death, is determined by the appraisers and the court, but their function is only to determine that elenient of the beneficial enjoyment of the right. They do not create the property right, neither can they limit it or take it away. ’ ’

The rule generally applied by the Probate Courts of this state, with which we are in accord, may be stated as follows: The widow is entitled to have set off to her provisions or other property sufficient to support her for 12 months, in the same station and condition in life to which she has been accustomed; and in the application of the rule the appraisers and the court may consider her age, manner of living, physical condition, medical expense, if any, social position, value of the estate, and the amount expended for support in the years immediately preceding the decedent’s death. The allowance will vary with the peculiar circumstances in each case. In the instant case the trial court had a right to and did consider the fact that the widow had lived for many years with her son. An inference could be drawn from the evidence that her standard of living was not very high.

In the application of the above rule, did the evidence require the court to increase the allowance? We think it did. A substantial increase was warranted by the evidence.

The trial court, in its written opinion, found that the son had expended about $500 per year for the care and support of the appellant. There is no evidence to support this finding. However, since the finding was not carried into the journal entry, it may be ignored. We observe how the appraisers in the first instance arrived at the amount of $500. One of the counsel for the administrator testified that when the appraisers met to fix the allowance he stated to them: “We would be agreeable to $500.”

It does not appear that the court applied the proper rule; neither does it appear that the trial court considered certain pertinent evidence which should have been considered in determining whether the allowance should be increased.

We do not find any error in the admission or exclusion of evidence. However, in our opinion the judgment is against the manifest weight of the evidence and contrary to law. The motion for new trial should have been sustained. There being error in the record prejudicial to the rights of the appellant, the judgment is reversed.

We cannot enter judgment in this court. The cause will be remanded to the trial court for new trial and further proceedings according to law. In Myers v. Hawn, 15 Ohio Law Abs., 90 (decision by Judge Barnes of this court), the seventh paragraph of the headnotes is as follows:

“A remand of the case will be made by the reviewing court where it involves issues of fact not passed on by the trial court and on which there is evidence. ’ ’

In that case the reviewing court remanded the cause to the trial court for new trial. See, also, In re Estates of Murnan, 151 Ohio St., 529, 87 N. E. (2d), 84; Bridgeport Bank Co. v. Shadyside Coal Co., 121 Ohio St., 544, 170 N. E., 358; Thomas Emery’s Sons v. Irving National Bank, 25 Ohio St., 360, 18 A. R., 299; Burton, Exr., v. Tax Comm., supra; McLaughlin v. Rawn, 31 Ohio Law Abs., 190, 41 N. E. (2d), 869.

The judgment is reversed and the cause remanded.

Judgment reversed.

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


author: Quatman, P. J.

text:
    Board of Education, City of Wapakoneta, Appellee, v. The Unknown Heirs of Aughinbaugh et al.; St. Paul’s Evangelical and Reformed Church of Wapakoneta, Appellant.

      (No. 177
    Decided July 1, 1955.)

      Mr. Edward Stroebel, for appellee.

      Messrs. McKeever & Monahan, for appellant.
   Quatman, P. J.

This is an appeal on questions of law from the Common Pleas Court of Auglaize County, in an action to quiet title. The matter was heard before this court on March 2, 1955, and again on June 8, 1955.

The plaintiff seeks to have its alleged title to four lots and an alley located in the city of Wapakoneta, Ohio, quieted as against the named defendants. There is no dispute as to two of the lots in question, namely, lots Nos. 57 and 58, or the alley. The lower court found that none of the defendants had any interest in those two lots or the alley, and its judgment in that respect is affirmed.

The real controversy concerns the title to lots Nos. 59 and 60, which adjoin the aforesaid premises. These lots were originally owned by Peter Aughinbaugh, J. E. Wilds and Joseph Barnett, whose unknown heirs are made parties to this action.

In 1833, these three men signed and recorded the original plat of the city of Wapakoneta, Ohio, whereon the following appears:

“The proprietors donate all streets and alleys for public highways and lots 59 and 60 for a meeting house and school house.”

The evidence discloses that thereafter a school house was constructed in part on lot No. 59, and that a church was constructed on lot No. 60. In order that the two groups might establish a line of demarcation between themselves, quitclaim deeds were exchanged between the school board and the trustees of the church. The church later divided into two bodies, one of which is a defendant, an appellant herein. The church building was vacated in approximately 1874, and at that same time a new school was constructed. The church building was moved to a new site and converted into a dwelling house. Thereafter, and continuously until 1950, the site was used for school purposes, lot No. 59 containing a part of the building, and the balance, along with lot No. 60, being used as a school play yard; The buildings have been removed, and the land now stands vacant.

Appellant assigns the following errors:

1. The court erred in not sustaining the motion to dismiss said action.

2. The court erred in holding that said real estate, under the dedication, should revert to the original dedicator.

3. The right of the grantor to repudiate the recitation of its quitclaim deed.

4. Did the board of education occupy said lot as a licensee ?

5. The court erred in making Maurice Howe a party defendant.

6. The court erred in assessing costs against the church, defendant-appellant.

While the parties to the original plat chose to use the word, “donate,” rather than the word, “dedicate,” as is customary, there can be no question as to their intention to effect a dedication, and that must be the legal effect given to the words used. There is some question as to whether the dedication was statutory or one at common law.

There is nothing contained in the words of the plat (one of plaintiff’s exhibits) which would indicate that by the term, “school house and meeting house,” the dedicators intended that two separate buildings were to be constructed.- It is common knowledge, and the early history of the city of Wapakoneta shows, as contained in the exhibits, that school houses were also employed as the town meeting house. The school house constructed on the premises was frequently used by the public for meetings.

It is our conclusion that it was not the intention of the dedicators that two separate buildings be constructed, but that the two purposes are merged as one.

An examination of plaintiff’s exhibit, which is the original town plat of the city of Wapakoneta, discloses that it was signed by the dedicators in January 1833, acknowledged before a notary public and justice of the peace, and recorded that same year.

The statute in effect with regard to the dedication of lands in the year 1833 may be found in 22 Ohio Laws, 301. The method was extremely simplified and required no acceptance on the part of the public or a governmental body. The first part of the section prescribes that an accurate map or plat be recorded; and the second part prescribes that the map or plat so made, and acknowledged before certain officers, and recorded, shall be deemed a sufficient conveyance to vest the fee in the county in which such town lies, in trust for the uses of the public or other intended purpose, and no other.

The plat in the instant case meets the requirements of the statute, and is, therefore, statutorily dedicated property. See Lessee of Incorporated Village of Fulton v. Mehrenfeld, 8 Ohio St., 440.

It is contended by the defendant St. Paul’s Evangelical and Reformed Church of Wapakoneta that it has a claim to lot No. 60, and possibly to lot No. 59, by reason of its predecessor, St. Paul’s Lutheran German Church, being the body that built the church on lot No. 60, and, also, by reason of the exchange of deeds between that body and the plaintiff board of education.

It is the opinion of this court that this defendant can assert no title to either of the lots greater than that of the public in general, as its interest must derive from the dedication and the laws affecting such dedication. Assume that it could assert a proprietary or paramount interest by reason of its predecessor’s actions. That interest was abandoned over 75 years ago and hardly could be revived at this late date. The exchange of quitclaim deeds between the board of education and the church body was obviously done in order to define the then existing several interests in the two lots.

The defendant Maurice M. Howe claims an interest in the premises in question by reason of a purchase contract he entered into with the plaintiff, upon which contract he has made a substantial down payment. He is a proper party to a determination of the issues presented by the petition of plaintiff, and it was not error to join him as a defendant.

The case of Babin v. City of Ashland, 160 Ohio St., 328, 116 N. E. (2d), 580, marks a decided change in the law as it heretofore existed regarding reversionary interest in land, the fee of which was dedicated by plat for public purposes. Such land had always been held to revert to the original dedicators when the purpose or purposes for which it was originally dedicated were abandoned, without regard to whether the dedication contained a reversionary clause.

A statutory dedication was, prior to the decision in Babin v. City of Ashland, supra, distinguished from a dedication made by deed of grant, in that the latter was held not to revert unless the deed specifically contained a reversionary clause.

The Supreme Court has now determined that a statutory dedication and one made by deed of grant are similar in nature as to reversion, where the fee in the statutory dedication is found to have been conveyed for a valuable consideration.

In the Babin case, supra, it was found that, where the dedicators were also the owners of the property surrounding the land they had dedicated for park purposes, they had received a consideration for the dedication by reason of the increased value the park brought to the surrounding land. That case specifically overruled so much of the ease of Board of Education of Incorporated Village of Van Wert v. Inhabitants of Van Wert, 18 Ohio St., 221, 98 Am. Dec., 114, as conflicts with the above finding.

In view of the foregoing, we find in the instant case no reversionary clause contained within the dedication; and, we further find that the dedication was made for a valuable consideration, so far as the dedicated purpose, as found in the Babin case, supra, would increase the value of the surrounding lands owned by the dedicators. It therefore follows that the title to the land in question vested in fee simple in the county of Auglaize, there then being no incorporated city to receive it. See, also, Miller v. Village of Brookville, 152 Ohio St., 217, 89 N. E. (2d), 85; In the Matter of Copps Chapel Methodist Episcopal Church, 120 Ohio St., 309, 166 N. E., 218.

The title so vested in the county of Auglaize was thereafter transferred to the city of Wapakoneta, upon its having received its charter as an incorporated city on March 2, 1849.

The opinion in the Babin case, supra, on page 336, reads as follows:

“In our opinion, therefore, the General Assembly may provide for the transfer to and vesting in a municipal corporation of the fee to lands in such municipal corporation which were theretofore vested by prior laws and by dedications thereunder in the county in which such municipal corporation was located. ’ ’

See, also, Section 6 of the Act of 1831 (29 Ohio Laws, 350), providing for the transfer to an incorporated town of the legal title to public grounds which formerly had been vested in the county for the benefit of such town.

By the Act of May 1,1873 (70 Ohio Laws, 195, 205, Chapter VI, Section 39):

“All property real or personal, which has heretofore vested in and is now held by any board of education, or town or city council, for the use of public or common schools in any district, is hereby vested in the board of education provided for in this act, having under this act jurisdiction and control of the schools in such district. ’ ’

Having determined that the fee simple title to the real property in question is vested in the Board of Education of the City of Wapakoneta, we come now to the question of whether its title is such as will authorize a sale of the property.

In reviewing the cases involving the manner in which governmental bodies hold title to so-called “public grounds,” we find a distinguishment being drawn between those lands held merely for the use of the public and those grounds which in fact are owned by the public. Where the land is owned by the public, it follows that tbe public may sell the same. However, some question as to alienability arises where the public has a use only. In the latter instance, it is arguable that a sale of the land by the governmental body will involve the destruction and extinguishment of the use and public rights of the inhabitants in the land. This point is also discussed at length in the Babin case, supra.

The manner in which a governmental body shall hold title to lands dedicated by town plat for public use was first set forth in the Act of February 14, 1805, entitled “An act to provide for the recording of town plats. ” 22 Ohio Laws, 301. See, also, 2 Laws of the Territory of the United States Northwest of the River Ohio, 41, 1801.

Section 2 of that act provides that when a town plat is acknowledged and recorded as therein provided, it “shall be deemed a sufficient conveyance to vest the fee of such parcels of lands as are therein expressed, named or intended to be for public uses in the county in which such town lies, in trust to and for the uses and purposes therein named, expressed or intended, and for no other use or purpose whatever.’’’ This section remains relatively unchanged so far as the trust provision is concerned. See Section 711.07, Revised Code (Section 3585, General Code).

In view of the express wording of the law, and, further, in view of the case law on this question, we cannot escape the conclusion that the board of education in the instant case holds the fee simple title to the property in question, in trust, however, for the use of the public. Board of Education of Van Wert v. Inhabitants, supra.

While Babin v. Ashland, supra, is authority for the conclusion that the property in the instant case does not revert to the original dedicators, their heirs or assigns, we are unable to apply the reasoning of that case, in concluding that the city of Ashland had authority to sell the land there in question, to the facts of this case, so as to conclude that a board of education has the same power. The Supreme Court was careful to point this out, when it stated in the opinion, on page 351, that:

“The sale of that land, provided for in the ordinance authorizing its sale, will, if carried out in accordance with the terms of that ordinance, necessarily involve a taking of such public rights. If the city did not have ‘authority to exercise all powers of local self-government,’ there might be some question as to the validity of an ordinance having that effect, as there was with regard to the legislative action of the school board in the Van Wert case.”

We acknowledge that the court in reaching its conclusion lays some stress on the power of eminent domain possessed by cities. However, it is apparent that the reasoning primarily relied on is Article XVIII of the Constitution, granting powers of local self-government to municipalities. See paragraph 6 of the syllabus of the Babin case.

While it is conceded that school boards also possess poavers of eminent domain (see Section 3313.19, Revised Code), it likeAvise can be conceded that they do not possess powers of local self-government equal to that possessed by municipalities. It would, therefore, place an additional strain on the reasoning of that case to extend its rule to empower a sale in the instant case.

While the record in this case does not disclose any formal resolution to the effect that the property in question is no longer required for school purposes, it is obvious, nevertheless, that this was the board’s conclusion, as shown by the very fact that it has resolved to sell the premises.

There is no assertion in the case, nor is there evidence to indicate, that the premises in question are presently, or will be in the future, required for school purposes. The evidence discloses that the premises have come into disuse by reason of the construction of a larger and more modern school at a more practical location. There is, then, no evidence that the board of education has abused its discretion in determining to sell this land.

Normally, no question would be raised with regard to the authority of a board of education to sell school property, as it has been given specific authority to do so by statute. See Section 3313.41, Revised Code (Section 4834-13, General Code). However, this statute cannot be construed to authorize a sale of land, the fee simple title to which is held in trust for a public purpose, as in the instant case.

Unless the terms of a trust grant the trustee certain latitude, he is rigidly required to conserve and preserve the corpus of the trust. This proposition is so elementary as to require no authority for its support. However, under certain circumstances, a court of equity will permit a deviation from th¿ terms of the trust where it can be shown that a change of circumstances has developed, which was not anticipated by the settlor, and which has rendered the operation of the trust impossible, or has substantially impaired the accomplishment of the purpose of the trust. See 1 Restatement of the Law, Trusts, 407, 415, Sections 165, 167.

The court refused to permit a deviation in the case of Board of Education of Incorporated Village of Van Wert v. Inhabitants of Van Wert, supra, the factual situation there under consideration being similar to the instant case.

However, under authority of Babin v. City of Ashland, supra, the difficulty that confronted the court in its refusal to allow a deviation from the trust is now no longer present.

In the Van Wert case, supra, the court stated on page 226:

“Is it competent for a court of equity, without the consent of the dedicators, to extinguish forever this.right of reversion, by ordering a sale of the property, and assuming to execute the trust cy-pres, by transferring it to the proceeds of the sale? We think judicial power cannot legitimately be so far extended.
‘ ‘ Even if this could be done, the dedicators should certainly be made parties to the proceeding; otherwise their'rights would be unaffected by any order of the court in the premises.”

It is apparent from this that the court’s only concern in refusing to modify the trust was that of the reversionary interest of the dedicators.

Having determined that the dedicators have no reversionary rights in the premises in the instant case, the impediment is thus removed. It would be an idle and wasteful thing to permit this land to lie dormant and unproductive, serving no useful purpose to the community in general or the school board in particular. Lands dedicated on town plats for public use are so dedicated in order that the community might grow and progress in keeping with a scheme or plan, and in order to make the community attractive to prospective settlers. It would be unreasonable to expect that the expansion and population growth of a community over a period of 120 years from the recording of its original town plat would not require some deviation from the plan or scheme incorporated in that plat. To hold. otherwise would require the school board in the instant case to perpetuate a dry trust that serves neither the intention of the settlors, nor is beneficial to the cestui que trust; and in addition, it places an undue burden on the trustees.

We find no merit to the argument that the school board can assert title by application of the doctrine of adverse possession. They and their predecessors, i. e., the city of Wapakoneta and the county of Auglaize, are, and have been since the dedication in 1833, the only persons against whom title could be asserted. It is self-evident that they could not hold adversely against themselves.

It is, therefore, the opinion of this court that the plaintiff Board of Education of City of Wapakoneta holds the fee simple title absolute to lots Nos. 57 and 58, and the alley, as described in their petition; and. that the board of education holds title to lots Nos. 59 and 60 in fee simple in trust for school purposes and as a town meeting house. It is our opinion further that the board of education should be authorized to sell lots Nos. 59 and 60, and apply the proceeds to the construction and maintenance of school buildings within its jurisdiction.

While the reasoning contained in the opinion of the lower court differs in certain respects from that of this court, the conclusion is the same, and in that respect we find no error; and the judgment of the lower court is affirmed.

Judgment affirmed. ■

Middleton and Younger, JJ., concur.


author: Middleton, J. Younger, P. J.,

text:
    Morgan, Appellant, v. Reese et al., Appellees.
    (No. 381
    Decided July 24, 1954.)

      Messrs. Meredith S Meredith, for appellant.

      Messrs. Unverferth & Unverferth, for appellees.
   Middleton, J.

The plaintiff brought this action in the Court of Common Pleas seeking a money judgment from the defendants, which money she alleges is due her as her share from the sale of the premises described in the petition.

The cause was tried, by agreement, to the court without the intervention of a jury.

Upon trial, the court found for the defendants and entered judgment accordingly. It is from that judgment that the plaintiff prosecutes this appeal on questions of law.

The petition, in substance, sets forth that in 1949 the parties to this action were the owners of the real estate therein described; that the interest of the plaintiff in said real estate was in dispute; that all the parties desired to sell the land and distribute the proceeds, providing a sale could be arranged; that all the defendants agreed with plaintiff that if she would join in a contract to sell the real estate and join in the execution of a warranty deed conveying the title to the premises and warranting the same to be free of encumbrances, except taxes and assessments due and payable in June 1950 and thereafter, she would receive one-fifth of the proceeds of sale after the payment of the expenses incident to the sale; that the parties agreed to sell the premises to Dwight E. Downing and Edna G. Downing for $28,000; that plaintiff, relying upon the representations of the defendants that she would receive one-fifth of the purchase price, signed a contract of sale and joined with defendants in a warranty deed to the purchasers; that plaintiff fully carried out the promises on her part to be performed, and the purchasers paid the purchase price to the defendants; that defendants have failed and refused to pay the plaintiff her one-fifth share as agreed upon, although all the defendants have been paid in full; and that plaintiff has made demand for the one-fifth of the proceeds of sale, but the defendants refuse and neglect to pay her. Plaintiff prays judgment against the defendants for the sum of $5,600, with interest.

To this petition the defendants filed their answer and cross-petition.

For answer, the defendants admit they were the owners of the real estate described in the petition and allege that the plaintiff had no interest therein. They admit that the land described was sold and proper deed delivered to the purchasers. Further answering, the defendants deny the allegations in the petition not specifically admitted in the answer to be true.

By way of cross-petition, the defendants say that Edward Morgan was a brother of Thomas Morgan; that plaintiff is the widow of Edward Morgan; that Edward Morgan died on the 24th day of February 1945; and that Thomas Morgan died testate on October 16, 1943, and his will, which was duly probated, provided in item II thereof, as follows:

“Item II. I give, devise and bequeath to my sister-in-law, the said Miss Nettie Reese, all of the real estate, including buildings thereon, which I may own at the time of my decease, to be hers and to enjoy the income therefrom during her lifetime and upon her death I give, devise and bequeath all of my said real estate including buildings thereon, to those persons who at the date of her death are my legal heirs under the laws of the state of Ohio, to be divided among them’ per stirpes. In the event my said legal heirs are unable to agree as to the division of my said real estate, upon the death of my sister-in-law, the said Miss Nettie Reese, I direct that the person who is then my legal representative shall sell the said real estate at public sale and shall divide the proceeds therefrom among my said heirs, per stirpes.”

The cross-petition then sets forth that Nettie Reese, life tenant named therein, died on the 18th day of September 1949.

Defendants aver it was assumed, at the time of the probate of the will and for some time thereafter, that Nettie Morgan had an interest in the land described in the petition; that, after receiving legal advice and after a more careful study of the will, the defendants came to the conclusion that Nettie Morgan had no interest in said land; and that, when it was discovered Nettie Morgan had no interest in said land, the inheritance tax which had been paid for her was returned to her.

The prayer of the cross-petition is that the will of Thomas Morgan be construed to show that Nettie Morgan had no interest in said land or in the money derived from the sale thereof, that she be forever barred from asserting any right or claim against the defendants in the proceeds of sale of said farm, and that the petition be dismissed.

The following facts are established by the record:

Thomas Morgan died October 16, 1943, owning the real estate described in the petition.

Item II of the will of Thomas Morgan is as set out in the defendants’ cross-petition.

Nettie Reese, named in item II of the will of Thomas Morgan, died September 18, 1949.

At the time of the death of Nettie Reese, the next of kin of Thomas Morgan were Jennie Reese, sister, Elizabeth Dackin, sister, Mary Jones, sister, Margaret Elliott, niece, Esther Arm Griffith, niece, Robert C. Griffith, nephew, John Griffith, nephew, Martha Pollex, niece, Morgan Griffith, nephew, and Mae Chapman, niece.

Edward Morgan, brother of Thomas Morgan, testator, died February 24, 1945.

The plaintiff, Nettie Morgan, is the widow and sole heir of Edward Morgan.

At the time of the execution of the contract of sale and the execution of the deed, the plaintiff was not a legal heir of Thomas Morgan under the laws of the state of Ohio, and therefore had no interest in said real estate.

At the time the contract and deed were executed it was believed by all parties that the plaintiff, Nettie Morgan, was the owner of a one-fifth interest in said real estate.

The money received from the sale of the premises was to be divided by the parties in five equal shares, one-fifth to the plaintiff, one-fifth to each of the three sisters, and one-fifth divided equally among the seven nephews and nieces.

It was also established by the evidence that, prior to the delivery of the deed to the purchasers, it was known by the defendants that plaintiff had no interest in said real estate, and that defendants did not intend to pay her a one-fifth share of the proceeds of sale.

The full purchase price was paid and partly distributed to the defendants, an amount equal to a one-fifth share thereof being retained on deposit .awaiting the determination of the interest of Nettie Morgan thbrein.

By the terms of the contract of sale which plaintiff signed with certain of the defendants, the plaintiff bound herself, together with the other signers thereto, to sell the property in question for the sum of $28,000, and upon payment of the purchase price to deliver a warranty deed to the buyer, to furnish an abstract of title and to pay for the same, to pay the taxes and assessments on said land, including those due and payable in December 1949, to keep the premises insured in the amount of $11,200, to deliver possession of the premises by March 1, 1951; and the buyer was to have the landlord’s share of the wheat planted.

The above recitals show ample consideration to support the alleged contract between the parties.

At the same time the contract was signed, the parties ' signed a warranty deed conveying the real estate to the buyer named in the contract of sale. In the deed the plaintiff, together with the defendants, covenanted that the grantors were seized of an indefeasible estate in fee simple in the premises; that the premises were free from all encúmbranos whatsoever except taxes due and payable in June 1950; and that she would warrant and defend to the grantee, his heirs and assigns, the title to the premises against all lawful claims and demands whatsoever.

“A long series of decisions has established the rule that a benefit to the promisor or a detriment to the promisee is sufficient consideration for a contract. Stated with greater elaboration, sufficient consideration may consist either in some right, interest, profit, or benefit accruing to the one party, or some forebearance, detriment, loss, or responsiblity given, suffered, or undertaken by the other. Any benefit conferred or agreed to be conferred upon the promisor by any other person to which the promisor is not lawfully entitled, or any prejudice suffered or agreed to be suffered by such person, other than such as he is at the time of consent lawfully bound to suffer, as an inducement to the promisor, is a sufficient consideration for the promise.” 12 American Jurisprudence, 570, Contracts, Section 79.

To the claim of the plaintiff, the defendants assert that the alleged contract was based on a mutual mistake of all parties and, therefore, was null and void.

That there existed, at the' time of the execution of the contract and the execution of the deed, a mutual mistake as to the interest of the plaintiff in the land is conclusively established by the record.

However, prior to the' delivery of the deed to the purchasers and the payment by them of the purchase price, the defendants knew of this mistake and knew that the plaintiff was not the owner of a one-fifth interest in the land, as they had thought. The fact that plaintiff had no interest in the property conveyed was not known by the grantee in the deed at the time the contract and deed were executed and delivered.

The defendants could have rescinded their contract at the time they discovered their mistake, because of the existence of such mutual mistake and a new contract and deed could have been executed from which plaintiff’s name could have been omitted. Thus, the defendants would have placed the plaintiff in the position she occupied prior to her signing the contract and deed, and the defendants would have thereby been relieved of their contract with the plaintiff.

“The very idea of rescinding a contract implies that what has been parted with shall be restored on both sides. Releasing one party from his part of the agreement and excusing him from making the other party whole do not seem agreeable to reason or justice. Hence, the general rule is that a party who wishes to rescind an agreement must place the opposite party in statu quo.” 12 American Jurisprudence, 1031, Contracts, Section 451.

While there existed a mutual mistake at the time of the execution of the contract and deed, no mutual mistake of fact or of law governing the subject matter existed at the time the deed was delivered and the purchase price paid.

“It is essential to the doctrine of equitable estoppel that the party sought to be estopped should have had knowledge of the facts, or at least that he should have had the means at hand of knowing all the facts or have been in such a position that he ought to have known them. This rule applies with particular force where the estoppel is claimed by reason of silence or inaction or of mere loose expressions of ambiguous character or where the case involves title to land or a dispute as to a boundary and there was no negligence i-n failing to assert his right.” 19 American Jurisprudence, 648, Estoppel, Section 49.

“Equitable estoppel or estoppel in pais is a term applied to a situation where, because of something which he has done or omitted to do, a party is denied the right to plead or prove an otherwise important fact. Any more exact or complete definition than this is difficult to formulate for the reason that an equitable estoppel rests largely on the facts and circumstances of the particular case, and consequently, any attempted definition usually amounts to no more than a declaration of an estoppel under those facts and circumstances.” 19 American Jurisprudence, 634, Estoppel, Section 34.

With full knowledge of the true situation, the defendants chose to deliver the deed to the purchaser which the plaintiff had signed, and by so doing the defendants accepted the benefits of her deed, whatever they might be, and the plaintiff became bound to the purchasers, and still remains bound to them, by the covenant set forth in the deed.

By delivering the deed the plaintiff executed, the defendants are now estopped from denying plaintiff’s right to receive one-fifth of the proceeds of sale.

“The covenant of warranty is considered the principal covenant of a deed. In some states, in fact, it is the only express covenant of title employed in conveyances. The covenant of warranty is an agreement by the warrantor that upon the failure of the title which the deed purports to convey, either for the whole estate or part only, he will' make compensation in money for the loss sustained. It is an assurance or guaranty of title. The obligation is not that the covenantor is the true owner or that he is seized in fee with the right to convey, but that he will defend and protect the covenantee against the rightful claims of all persons. This covenant, unless qualified by the contract, is a protection against defects of title, whether they result from mistakes of law or mistakes of fact.” 14 American Jurisprudence, 521, Covenants, Section 51.

“The obligation of covenants of warranty can not depend on the knowledge, or want of knowledge of the parties to the covenants. If it could, covenants of warranty would be of little avail; for one of the leading inducements to the requirement of such covenants is, that they may serve as a safeguard against possible ignorance of his own title on the part of the vendor.” Lloyd v. Quimby, 5 Ohio St., 262, 266; 11 Ohio Jurisprudence, 931, Covenants, Section 61.

The court finds error in that the judgment of the court below is contrary to law. The judgment is reversed and this court, rendering the judgment the Court of Common Pleas should have rendered, renders final judgment in favor of the plaintiff and against the defendants for the sum of $5,569, together with interest.

Judgment reversed.

Quatman, J., concurs.

Younger, P. J.,

concurring in judgment.

The plaintiff, in her petition, bases her case on the allegation that all the defendants agreed with her that, if she would join in a contract to sell the real estate and join in the execution of a warranty deed, she would receive one-fifth of the purchase price thereof. The plaintiff failed to prove this allegation, even by her own testimony. The record shows that no such agreement was reached, but on the contrary, nothing whatever was said by any of the parties previous to the execution of the contract and deed to indicate any doubt as to plaintiff’s ownership of a one-fifth interest. All parties assumed that plaintiff owned a one-fifth interest and acted accordingly.

Plaintiff’s case now rests on the proposition that there was a valid consideration for her entering into the contract and deed.

"Whether there was valid consideration, in my opinion, rests upon the answer to the question as to whether the grantee or purchaser has a valid cause of action against the plaintiff on her covenants and warranty should some defects subsequently appear. If she is liable, then there is “a detriment to the promisee. ’ ’

The record does not show definitely whether the purchaser or grantee knew that plaintiff did not" have title to the one-fifth at the time he accepted the deed. However, the record strongly indicates that he did have this knowledge. He applied for a $10,000 loan through Unverferth & Unverferth, attorneys, from The Mutual Life Insurance Company. It took some time to complete the loan, and the check for the loan, payable to Unverferth & Unverferth, Dwight Downing and Edna Downing, was endorsed over to Jennie Reese, agent for the Tom Morgan heirs, as part of the purchase price.

The record shows further that several of the defendants got their legal information that plaintiff had no title to a one-fifth share from Unverferth & Unverferth before the loan was closed and the deed delivered. But the record is strangely silent as to the actual knowledge of the grantee at the time he accepted the deed. If the record showed that the grantee had actual knowledge before acceptance of the deed that one of the grantors had no title, and that all parties had acted under a mutual mistake, then I would dissent, but since the record is as it is, I must concur.


author: Kovachy, J.

text:
    The State, ex rel. Skilton, v. Miller, Judge, et al.
    (Nos. 23303 and 23304
    Decided November 24, 1954.)

      Messrs. Wallich & DeVinne, for relator.

      Mr. Roger Zueher, for respondents.
   Kovachy, J.

These are two proceedings in mandamus originally filed in this court. The relator, the respondents, and the relief sought in each are the same. In the petitions the relator says, inter alia, that he is a citizen of the state of Ohio; that he executed two written complaints under oath and filed one with the respondent, Richard McGilvery, in his capacity as Clerk of the Police Court in the City of Cleveland Heights, and the other with the respondent., David J. Miller, judge of such police court; that upon such filing he promised complete cooperation with the appropriate police officials, together with the production of witnesses in the prosecution of the violations of the state law alleged in the complaints; that he demanded that a warrant or summons be issued thereon as provided by the laws of the state of Ohio; and that both respondents have refused to comply with his demands.

It is admitted by respondents that the complaints filed set forth a violation of Section 3773.24, Revised Code. In case No. 23303, relator avers that he purchased a loaf of bread on Saturday, August 21, 1954, and again on Sunday, August 22, 1954, at a store known as Miether’s Ice Cream Store located at 1920 Lee Road, Cleveland Heights, Ohio. In case No. 23304, he avers he purchased a loaf of bread on Saturday, August 21, 1954, and again on Sunday, August 22, 1954, at a restaurant and store known as Damon’s, located at 2466 Fairmont Boulevard, Cleveland Heights, Ohio.

Relator seeks a writ of mandamus commanding the respondents or either of them “to issue a warrant or summons upon the offense charged in the attached affidavit ’ ’ in each case.

Demurrers were filed to the petitions by the respondents on the ground that the petitions do not state facts that show causes of action.

Section 2731.02, Revised Code, reads in part as follows:

“The writ of mandamus may be allowed by the Supreme Court, the Court of Appeals, or the Court of Common Pleas and shall be issued by the clerk of the court in which the application is made. Such writ may issue on the information of the party beneficially interested.” (Emphasis ours.)

In the consideration of these demurrers, we are faced at the outset with the question whether the relator, under the facts set forth in his petitions, is “the party beneficially interested” in accordance with the requirement of the law pertaining to the issuance of the extraordinary writ of mandamus. The Supreme Court of Ohio in State, ex rel. Stanley, v. Cook, Supt. of Banks, 146 Ohio St., 348, 66 N. E. (2d), 207, states the law as follows in the syllabus:

“1. Mandamus is an extraordinary writ and will not lie unless the relator can establish a clear legal right thereto. (Paragraph one of the syllabus of State, ex rel. Baen, v. Yeatman, Aud., 22 Ohio St., 546; paragraph two of the syllabus of State, ex rel. Papadopoulos, v. Industrial Commission, 130 Ohio St., 77; paragraph one of the syllabus of State, ex rel. Skinner Engine Co., v. Kouri, Dir., 136 Ohio St., 343; and State, ex rel. Stein, v. Department of Highways, 136 Ohio St., 252, approved and followed.)

“2. In the absence of a showing that a relator has a beneficial interest, either as an individual, taxpayer, or as a citizen, in obtaining a peremptory writ of mandamus, such writ will not be granted. (Paragraph one of the syllabus of State, ex rel. Brophy, v. City of Cleveland, 141 Ohio St., 518; and State, ex rel. Latta, Chief of Police, v. White et al., Industrial Commission, 140 Ohio St., 197, approved and followed.)”

Relator, in his petitions, says that he is a citizen of Ohio. He demands the arrest of persons for violating, he avers, the so-called “Sunday Closing Law.” This is a general law of the state of Ohio and was enacted for the benefit of the citizens of the state as a whole. His interest, therefore, is one that he shares with all citizens. It is not specific or peculiar in himself. A relator, in order to be justified in obtaining a peremptory writ compelling the arrest of individuals, must show that such arrest would subserve some private or special interest of his or permit him to pursue or protect a particular right residing in him personally and separate and apart from that which he holds in common with the public at large. Only by such a state of facts can he be said to be “the party beneficially interested.” The allegations of the petitions do not show such beneficial interest in the relator.

In 18 Ruling Case Law, 303, Section 238, the following statement is found:

“The weight of authority probably sustains the view that to entitle a private citizen to move for and prosecute the writ, he must show that he has some private or special interest to be subserved, or some particular right to be pursued or protected, independent of that which he holds in common with the public at large, and that it is for the public officers to apply when public rights alone are to be subserved. ’ ’

See Babbett v. State, ex rel. Dresher, 10 Kan., 9; Sanger v. County Commr. of Kennebec, 25 Me., 291.

It must likewise be borne in mind in this connection that mandamus is not a writ of right and that its issuance or non-issuance rests in the sound discretion of the court. State, ex rel. Mettler, Pros. Atty., v. Stratton et al., Commrs. of Athens County, 139 Ohio St., 86, 38 N. E. (2d), 393, paragraph one of the syllabus.

We hold in these cases that a court is not obliged to issue a writ of mandamus compelling the arrest of a person allegedly violating a law, which is a misdemeanor, passed for the benefit of all of the citizens and general in nature, where the relator has no personal right involved and deliberately and purposely plans and personally induces the violation. To grant a writ of mandamus under such circumstances would in effect be constituting the relator a law enforcing agency of the community and tend to engender confusion among the officers charged with the enforcement of law. Such a right extended a private citizen would encourage the zealot, take out of the hands of law enforcing officers the right to exercise their sound judgment in maintaining peace and order, and encourage practices not in accord with the American concept of law enforcement.

The Supreme Court of California in the syllabus in Fritts v. Charles, 145 Cal., 512, 78 P., 1057, states the rule as follows in a situation that is quite comparable to the one here under consideration:

“An applicant for a writ of mandate to compel the arrest of a person accused by his complaint, filed in the justice’s court, of a misdemeanor in unlawfully using a slot machine for a game of chance, is not a party beneficially interested, within the meaning of the statute. He is not injured thereby in any manner different from the general public, and his application for such writ was properly denied by the Superior Court. ’ ’

Accordingly, the petitions in these cases do not set forth facts showing the relator, Henry A. Skilton, to be “the party beneficially interested” and consequently fail to show causes of action in him, for which reason the demurrers are sustained, the petitions dismissed, the writs denied and final judgments rendered the respondents at relator’s cost.

Judgments accordingly.

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


text:
    Housh, Appellee, v. Peth, Appellant, et al.
    (No. 2320
    Decided April 6, 1955.)

      Mr. James C. Baggott, for appellee.

      Messrs. McLeran, Kelly & McLeran, for appellant.
   Wiseman, J.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Montgomery County, Ohio, entered in favor of plaintiff, in an action for damages for the invasion of plaintiff’s “right of privacy.” The cause was tried to a jury which rendered a verdict against the defendant Mark A. Peth in the sum of $3,000. Motion for judgment non obstante veredicto was overruled. In entering judgment on the verdict, the trial court granted a remittitur in the amount of $1,000 and entered judgment for $2,000.

Because of the unusual nature of this litigation and the novel legal question raised we quote the pertinent part of the amended petition, as follows:

“Plaintiff for her cause of action says that Mark A. Peth and Mary C. Peth * * * are engaged in the collection business on behalf of various creditors of diverse and sundry individuals including this plaintiff.

“Plaintiff further says that she is indebted to Dr. L. A. Lydic in the amount of one hundred ninety-seven ($197) dollars * * *.

“Plaintiff further says that the defendants called her on the telephone harassing and annoying her many times in the course of a day with regard to this collection and did call and annoy the plaintiff at her place of employment three times within 15 minutes on March 19, 1954; that as a result thereof, the plaintiff’s employer told her on March 19, 1954, that unless this collection is ‘straightened up’ on or before March 23, 1954, that the plaintiff would thereupon be discharged from her employment.

“Plaintiff further says that the defendants have called the Supervisor of Music of the Dayton Public Schools and have called the plaintiff’s landlord regarding said collection claiming the plaintiff did not pay her bills and inquiring as to her earnings, and for a period of approximately two weeks immediately prior to filing her petition herein, the defendants called the plaintiff at her place of residence eight or nine times a day dunning her for this collection, giving her notices and warnings and called her as late as 11:45 p. m., which calls were calculated to coerce the plaintiff into payment and which constant annoyance by the telephone caused the plaintiff to lose one of her roomers and a part of her income.

“Plaintiff further says that such constant daily annoyance and malicious calls to her, her employer and her landlord have constituted an invasion of her right of privacy and caused her nervousness, worry, humiliation, mental anguish and loss of sleep; * * * that unless restrained and permanently enjoined therefrom the defendants will continue to threaten, worry, annoy and humiliate her and cause her loss of sleep and loss of employment and further loss of income from her roomers, and unless restrained and permanently enjoined therefrom, will continue in the unlawful practice of law; that as a result of the foregoing, she has been damaged in the sum of ten thousand ($10,000) dollars.”

The defendant Mark A. Peth filed an answer, the pertinent part of which is as follows:

“Now comes the defendant, Mark A. Peth, and for his answer to the amended petition of the plaintiff, does admit that he is the owner and operator of a collection business known as Doctors Business Bureau, * * * but does deny that the defendant, Mary C. Peth, has any interest in said collection business.

“Further answering, defendant says that in connection with his operation of the Doctors Business Bureau, he received an account from Dr. L. A. Lydic of Dayton, Ohio, against the plaintiff herein in the amount of $225, and that the plaintiff was contacted a number of times in an attempt to secure collection of said account. * * * Defendant says that when plaintiff failed to pay the note at the end of the week, he contacted her further by telephone and did also call her at her place of business on the 19th day of March, 1954, but that plaintiff has made no further payments upon said note or account from the 15th day of February until the date of the filing of this answer.

“Defendant admits that he called the plaintiff a number of times at her home during the business hours of the day, and may have called her on Monday evenings prior to 9:00 p. m., at which time he is in his office, but defendant denies that he ever called the plaintiff late in the evening or that he has ever contacted the plaintiff in any way other than for business reasons in the collection of the above account.

“Further answering, defendant denies all other allegations contained in said amended petition. ’ ’

The defendant Mary C. Peth filed a general denial.

A temporary restraining order was issued as prayed for. Trial on the merits resulted in a general verdict for the plaintiff and against the defendant Mark A. Peth. A general verdict was rendered in favor of the defendant Mary C. Peth. No interrogatories were submitted. It cannot be determined what amount, if any, was allowed for punitive as distinguished from substantial or compensatory damages.

The defendant Mark A. Peth, the appellant herein, filed a motion for judgment notwithstanding the verdict. The record shows that the verdict was returned on December 1, 1954. The motion for judgment notwithstanding the verdict was filed on December 3, 1954. The motion was overruled December 16, 1954. Judgment on the verdict was entered on December 16, 1954. Thus, it appears that the motion was prematurely filed and had no legal effect. Section 2323.18, Revised Code, provides for the rendering of a judgment notwithstanding the verdict in a proper case “upon motion of such party, filed as provided in Section 2323.181 of the Revised Code.” In designating the section as 2323.181 an obvious error was committed in the enrolled bill. The section is correctly designated as Section 2323.18.1, Revised Code. This section in part provides:

“The motion provided for in Section 2323.18 of the Revised Code * * '* shall be tiled * * * within ten days after the journal entry of judgment in conformity to the verdict shall have been approved by the court in writing and filed with the clerk for journalization.”

The later section also specifically provides that it shall apply to pending actions. This section became effective on October 27, 1953. Under the former sections of the Code, such motion was filed after the verdict and before judgment. Under the present section, the motion may not be filed until after judgment is entered on the verdict. The motion, being prematurely filed, had no legal effect. No motion for new trial was filed.

While we are of the opinion that the motion for judgment notwithstanding the verdict, being prematurely filed, raises no question for the reviewing court, nevertheless, the questions raised are otherwise evidenced by the record.

The three errors assigned are: First, error in giving special instructions, and in the general charge; second, error in overruling motion for judgment notwithstanding the verdict ; and, third, the judgment is not sustained by sufficient evidence and is contrary to law. "We are not required to consider assignment of error No. 2.

In a civil action the reviewing court is required to consider the weight and sufficiency of the evidence, if error is predicated thereon, even though no motion for new trial has been filed. Section 2321.01, Revised Code, in part provides:

“A motion for a new trial is not necessary as a prerequisite to obtain appellate review of the sufficiency or weight of the evidence submitted to the trial court where such evidence to be considered appears as a part of the record filed in the appellate court.”

A complete bill of exceptions has been filed, which exemplifies the claimed errors relative to the charges, the sufficiency of the evidence and whether the judgment is contrary to law.

Counsel for appellant have not briefed the several assignments of error separately, but have treated them as one; we do likewise.

Without reviewing the evidence in detail, which we deem unnecessary, it is sufficient to state that the evidence presented by the plaintiff in the main supported the allegations in the amended petition. The evidence presented by the defendants supported the allegations in the answer of the appellant. The appellant made certain admissions which supported, in part, the claims of the plaintiff. On the basis of the weight and sufficiency of the evidence, the verdict and judgment could be supported. However, the question presented is whether the evidence, when construed most favorably to the plaintiff, shows a right of action for the invasion of plaintiff’s “right of privacy. ’ ’

What is meant by “right of privacy?” If there exists in Ohio a right of action for damages for the invasion of the right' of privacy, what acts constitute a violation of such right? Plaintiff contends that the right of action exists in Ohio, and that the evidence was sufficient to support the verdict and judgment. This was the view of the trial court. The appellant contends that if a right of action exists in Ohio, which he doubts, the evidence falls far short of showing a violation which would form the basis for an award of damages.

The instant case presents a case of first impression in Ohio. The only reported cases in Ohio do not touch the question presented here, but the rulings and the opinions of the judges in¡ the Ohio cases are worthy of notice. In 1938, in Martin v. F. I. Y. Theatre Co., 26 Ohio Law Abs., 67, the Common Pleas Court of Cuyahoga County held:

“An actress on the legitimate stage who has acquired a! reputation for integrity of character, morals, ability and talent! in her profession is estopped by her very vocation from complaining that her personal right of privacy has been invaded j by the exhibition of an enlarged photograph of herself among j so-called ‘nude’ pictures of burlesque actresses on a burlesque' theatre. ;
“The right of privacy is not a property right, but rather ! an incident personal in its nature, which does not exist as to any \ public character or in the dissemination of news.” \

In that case the question was presented on demurrer to the ! petition. On page 68, the court said:

“The best authorities are in accord, that if the act complained of is without justification, and for selfish gain and purposes, and of such a character as is reasonably calculated to wound the feelings, preventive relief in equity should follow. In some jurisdictions relief is granted only where some property right has been invaded or some pecuniary loss suffered. These courts adopt the theory that the right of privacy is a property right. 32 Ohio Jurisprudence, page 198.”

On page 69, the court, indulging in obiter dictum, concluded :

“It cannot be violated under any circumstances by the spoken word.”

In 1940, in Johnson v. Scripps Publishing Co., 32 Ohio Law Abs., 423, the Common Pleas Court of Cuyahoga County held:

“It is not within the jurisdiction of a court of equity to grant injunctive relief restraining a newspaper from continuing the publication of lists of names and addresses of signers upon nominating petitions of candidates of the Communist Party.

“The right of privacy does not prohibit publication of matter which is of public or general interest. ’ ’

The question in that case was presented on demurrer to the petition. The court discussed at length the right of freedom of the press and the public character of a nominating petition, and, on page 431, said:

‘ ‘ The origin of the doctrine of the right of privacy is quite generally ascribed to an article of Louis D. Brandéis and Samuel D. Warren, published in 4 Harvard Law Review, page 193 (1890) entitled ‘The Right of Privacy'.’

‘ ‘ The right of privacy is variously defined as:

“ ‘A right of the individual to be let alone or to live a life of seclusion or to be free from unwarranted publicity, or to live without unwarranted interference by the public about matters with which the public is not necessarily concerned.’ 54 Corpus Juris, 816, and

“ ‘The right of privacy is a right to be let alone to go one’s way without being in the public eye, to be free from intrusion into one’s private business and from unauthorized publicity concerning one’s personal and private affairs. The right, where it has been recognized by the courts at all is based either upon a statute or upon judicial interpretation and inference from existing legal doctrines.’ Jones Law of Journalism, page 205.

“ ‘The right of privacy is the right to be let alone; the right of a person to be free from unwarranted publicity. A more specific but less accurate definition is the right to live without having one’s name, picture or statue, * * * made public against his will. The law respecting this right is purely modern. No mention of it is to be found in Blackstone, Kent or any of the great commentators of the law.’ 21 R. C. L., 1196.”

In 1941, in Friedman v. Restaurant Employes, 20 Ohio Opinions, 473, the Common Pleas Court of Hamilton County held:

“Where picketing is unlawful, the taking of moving picture photographs of customers entering and leaving the place of business of an employer will be enjoined.
“While persons, occupying prominent positions in public life and government, impliedly grant the right to take and publish their pictures, nevertheless, private individuals who do not give such consent, either expressly or tacitly, have the right to insist upon privacy.”

On page 476, the court, in discussing a question as to the right of privacy, said:

“As to the taking of pictures by the moving picture camera, defendants rely upon Robertson v. Rochester Folding Box Co., 171 N. Y., 538, which has declared that there is no right of privacy either under the common law or principles of equity. That decision was concurred in by four judges, an elaborate dissenting opinion being filed on behalf of the three other judges of that court. We prefer to adopt the principle announced in the dissenting opinion, especially in view of the discussion of the right of privacy being maintained by former Supreme Court. Justice Brandéis while he was a member of the Bar, in an article written by him and his law partner, Samuel Warren, in 4 Harvard Law Beview, 193, etc., and we agree with their conclusions rather than the contrary set forth in an article in 3 N. W. Beview, page 1. One must concede that per: sons occupying prominent positions in public life and government impliedly grant the right to publish their pictures. Private individuals likewise may doxso^ either expressly or by tacit consent, but an ordinary individual, in our opinion and according to what we believe to be the better principle, has a right to insist upon his privacy. It is not surprising to find at times an opinion like that of the majority in the Robertson case, because in some courts and in some states there is an adherence to declarations and conclusions set forth in the year books or the black letter reports, rather than to meeting the changed conditions of our advanced civilization.”

In 1953, in Schmukler v. Ohio-Bell Telephone Co., 66 Ohio Law Abs., 213, 116 N. E. (2d), 819, the Common Pleas Court of Cuyahoga County held that the monitoring by the telephone company of a nonbusiness telephone service, to ascertain whether business calls were being made over such telephone, by tbe subscriber, did not constitute a violation of plaintiff’s right of privacy. The court directed a verdict in favor of the defendant. In overruling the motion for new trial, the court in its opinion, on page 218, said:

“This leads us to the question at issue, was plaintiff’s right of privacy invaded, as she claims, and if so, under the facts is her case one that should have been submitted to the jury for its consideration.

“We must first inquire as to what we mean by the right of privacy or the right to privacy, since it is not even mentioned by any of the old commentators of the law.

“It is usually defined as ‘the right of the individual to be let alone or to lead a life of seclusion, or to be free from unwarranted publicity, or to live without unwarrantéd interference by the public about matters with which the public is not necessarily concerned.’ It was given prominence by an article written by Brandéis and Warren in the 4th Harvard Law Be-view of December 15, 1890. The article is an instance of fine legal writing, exhaustive and interesting. Brandéis later. became a Justice of the Supreme Court of the United States and was a man of wide vision, sound principles and of great learning. Its conclusion is ‘that the protection afforded to thoughts, sentiments, and emotions expressed through the medium of writing or of the arts so far as it consists in preventing publication is merely an instance of the enforcement of the more general right of the individual to be let alone. * * * and the principle which protects personal writings and all other personal productions not against theft and physical appropriation but against publication in any form is in reality not the principle of private property but that of an individual personality.’ ”

On page 220 the court said:

“But in every case involving an assertion of the right of privacy, the court is called upon to resolve the conflict between the rights of the individual on the one hand and the interest of society on the other. 138 A. L. B., 45.”

In 32 Ohio Jurisprudence, 197, Section 1 et seq., there appears a three-page treatise on the subject of “Bight of Privacy.” No Ohio cases are cited; all references are to Buling Case Law. We quote pertinent parts from the text as follows:

On page 197 :

‘ ‘ The right of privacy is the right to be let alone, the right of a person to be free from -unwarranted publicity. * * * The right in question is incident to the person, and not to property. Its foundation is in the conception of an inviolate personality and personal immunity. It is considered as a natural and an absolute or pure right springing from the instincts of nature. It is of that class of rights which every human being had in his natural state, and which he did not surrender by becoming a member of organized society. The fundamental rights of personal security and personal liberty include the right of privacy, which is merely the right to live as one chooses.”

On page 198:

‘ ‘ Upon the question as to whether the right of privacy is a legal right, for the violation of which there is a legal remedy, the courts are not in harmony. The majority have refused to recognize interference with one’s privacy as an injury in the legal sense, on the ground that the law has not provided for a right to possess or maintain without disturbance any particular condition of feeling, and that to enforce such a right at this time would do violence to settled principles by which the public has long been guided. In other jurisdictions, the right of privacy has been recognized and enforced. Where such is the case, the violation of the right is a tort and the injured person is entitled to recover damages. The interference with another’s seclusion is a direct injury, and, consequently, the law presumes that the injured person has been damaged. But the plaintiff is not limited to the recovery of nominal damages. He is entitled to recover substantial damages, although the only damages suffered by him result from mental anguish. The fact that these damages cannot be measured by a pecuniary standard is not a bar to his recovery. ’ ’

On page 199:

“A violation of the right of privacy consists in the interference with another’s seclusion by subjecting him to unwarranted and undesired publicity. The phrase ‘unwarranted publicity’ is difficult of accurate and concise definition, and its meaning is best illustrated by examples. ’ ’

■ While the courts in the cited Ohio cases proceeded on the assumption that under certain circumstances an action for the violation of the right of privacy exists in Ohio, no Ohio court has had to meet that question squarely. To what extent the action for the invasion of the right of privacy has found its place in Ohio jurisprudence has not been established.

The appellant contends, first, that the action involved here was a private, personal transaction, and not public; and, second, that it involved only the spoken word, and not a written communication or statement. The point is made that the right of action, in jurisdictions where it exists, does not extend to private transactions or the spoken word. In support of this proposition, appellant cites the Ohio cases. With the sole exception of the dictum in the Martin case, the Ohio cases do not support appellant’s contention. Appellant cites cases from other jurisdictions, among which is an early leading case denying the right of action, Robertson, an Infant, v. Rochester Folding Box Co. (1902), 171 N. Y., 538, 64 N. E., 442, 59 L. R. A., 478, 89 Am. St. Rep., 828 (use of photograph of plaintiff in advertisement). Similar holdings are found in Henry v. Cherry & Webb (1909), 30 R. I., 13, 73 A., 97, 24 L. R. A. (N. S.), 991, 136 Am. St. Rep., 928 (plaintiff’s photograph used in advertisement); Themo v. New England Newspaper Publishing Co. (1940), 306 Mass., 54, 27 N. E. (2d), 753 (photograph in newspaper); McGovern v. Van Riper (1947), 140 N. J. Eq., 341, 54 A. (2d), 469 (use of fingerprints and photograph of accused by police); and Hansson v. Harris (Tex. Civ. App., 1952), 252 S. W. (2d), 600 (use of fingerprints and photograph of accused by police).

Annotations on the subject are found in 106 A. L. R., 1453; 138 A. L. R., 22; 168 A. L. R., 446; and 14 A. L. R. (2d), 750. Cases too numerous to review are cited in A. L. R. supporting a right of action for damages for the invasion of the right of privacy. While it is true that the typical case usually involves the display, sale or publication of a person’s portrait, or the public use of a person’s name, without such person’s consent, the right is by no means limited to such matters. The right covers a wide range of human activities. An invasion of the right of privacy may result without the matter being brought to the attention of the general public. Typical of this class of eases are wiretapping and other forms of eavesdropping. In such cases, the public is not informed and not involved.

In recent years all reference works cite the majority view as favoring a right of action.

In 168 A. L. R., 448, published in 1947, it is stated that since 138 A. L. R. which was published in 1942, three states (Arizona, Florida and Indiana) had adopted the majority view. From 1947 to 1950, the date of publication of 14 A. L. R. (2d), Alabama and Michigan joined the majority. No additional jurisdiction has committed itself to the contrary view. In 138 A. L. R. there is an extended annotation in which various aspects of the question are discussed. On page 25 the authority states: .

‘ ‘ The following is offered, by the present writer, as a fairly comprehensive definition of what constitutes an actionable invasion of the right of privacy: — The unwarranted appropriation or exploitation of one’s personality, the publicizing of one’s private affairs with which the public has no legitimate concern, or the wrongful intrusion into one’s private activities, in such manner as to outrage or cause mental suffering, shame, or humiliation to a person of ordinary sensibilities.” (Emphasis ours.)

In this work, numerous cases from various jurisdictions are cited sustaining the majority view. On page 29, the author, in commenting on the opinion of the court in Hinish v. Meier & Frank Co. (1941), 166 Ore., 482, 113 P. (2d), 438, 138 A. L. R., 1, states:

“The court stated that it was called upon to exercise its ‘sovereign prerogative of choice’ between the view that the courts, for want of precedent, are impotent to grant redress for injury resulting from conduct universally condemned as indecent and outrageous by public opinion in civilized society, and the view that the common law, with its capacity for growth and expansion, its adaptability to the needs and requirements of changing conditions, and its ability to discover and apply remedies for acknowledged wrongs without waiting for legislation, contains within itself the resources of principle upon which to base relief in cases involving invasion of the right of privacy, and concluded that natural justice and the needs of society should prevail over objections based upon the novelty of the asserted cause of action and the fear of a charge of judicial legislation, and should influence the courts to abandon fiction and frankly affirm the real character of the injury and the independent existence of a legal right of privacy.”

We believe the Ohio courts should adopt this line of reasoning and fall in line with the weight of authority.

In 4 Restatement of the Law of Torts, 400, Section 867, comment d, the standard by which the right is measured is stated as follows:

“* * * liability exists only if the defendant’s conduct was such that he should have realized that it would be offensive to persons of ordinary sensibilities.”
“It is only when the defendant should know that the plaintiff would be justified in feeling seriously hurt by the conduct that a cause of action exists. If these conditions exist, however, the fact that the plaintiff suffered neither pecuniary loss nor physical harm is unimportant. The damages whether nominal, compensatory or punitive can be awarded in the same way in which general damages are given for defamation.”

See, also, 41 American Jurisprudence, 934, Section 12; Reed v. Real Detective Pub. Co. (1945), 63 Ariz., 294, 162 P. (2d), 133. Truth, while a defense to an action of libel, is not a defense to an action for invasion of the right of privacy. Brents v. Morgan (1927), 221 Ky., 765, 299 S. W., 967, 55 A. Li R., 964; Themo v. New England Publishing Co., supra; 168 A. L. R., 452. It is not essential to a recovery to allege and prove special damages. 138 A. L. R., 48; 168 A. L. R., 465., If the proof discloses a wrongful invasion of this right, substantial damages for injured feelings and mental anguish alone may be recovered. Punitive damages may be recovered where the element of malice appears. 138 A. L. R., 106.

Touching on the particular factual development in the instant case, the case of LaSalle Extension University v. Fogarty (1934), 126 Neb., 457, 253 N. W., 424, 91 A. L. R., 1491, may be cited. There repeated and unreasonable threats to sue and to appeal to the plaintiff’s employer, made willfully and intentionally for the purpose of producing mental pain and anguish, in attempting to collect a debt, after the plaintiff had notified the defendant that he did not owe the alleged debt, were held to entitle the plaintiff to the recovery of damages for mental pain and anguish, although he suffered no physical injuries. In Barnett v. Collection Service Co. (1932), 214 Iowa, 1303, 242 N. W., 25, the syllabus reads:

“Willful threats made to a debtor for the purpose of producing in the mind of the debtor such mental pain, anguish, and harassment as will induce him to pay the debt, render the offender liable in damages for the resulting pain and anguish, even tho there be no actual or threatened physical injury, provided the threats are not mere threats to resort to legal procedure. ’ ’

We recognize that a creditor has a right to take reasonable action to pursue his debtor and persuade payment, although the steps taken may result to a certain degree in the invasion of the debtor’s right of privacy. Simply informing the debtor’s employer of the fact that the debt is owed, of itself, would not constitute an invasion of the right. Patton v. Jacobs (1948), 118 Ind. App., 358, 78 N. E. (2d), 789; Lewis v. Physicians & Dentists Credit Bureau, Inc. (1947), 27 Wash. (2d), 267, 177 P. (2d), 896.

However, the factual situation developed in the instant case is entirely different. The record shows that the defendant deliberately initiated a systematic campaign of harassment of the plaintiff, not only in numerous telephone calls to the plaintiff herself every day for a period of three weeks, some of which were late at night, but also calls to her superiors over the telephone, informing them of the debt; that she was called out of the classroom in the public schools where she was employed three times within 15 minutes; that she lost a roomer at her rooming-house because of the repeated calls, and was threatened with loss of employment unless the telephone calls ceased. The calls to the employer, and the rooming-house, were all part of the pattern to harass and humiliate the plaintiff and cause her mental pain and anguish and cause her emotional disturbance for the purpose of coercing- her to pay the debt. The jury had a right to conclude that the defendant committed such acts maliciously. As a result of the conduct of the defendant the plaintiff became ill. In our opinion the conduct of the defendant falls outside the bounds of reasonable methods which may be pursued in an effort to collect a debt, and is actionable as an invasion of plaintiff’s right of privacy.

Special damages have been shown which meet the requirement of that line of cases which holds that when the invasion of the right of privacy is caused by an oral communication, special damages must be shown. 41 American Jurisprudence, 934, 940, Sections 11, 20.

In light of the principles applicable in such cases, as stated above, and the evidence presented, did the court commit prejudicial error in giving three special instructions requested by the plaintiff, to which defendant objected? They are as follows :

Special charge No. 1:

“The court charges the jury that this plaintiff has a right of privacy and that the unwarranted invasion of such right, if you find from the evidence her right was invaded by either of the defendants, or both of them, will entitle, her to a verdict against such defendant or both of them as invaded her right of privacy, and I charge you that as a matter of law the plaintiff’s right of privacy and to personal security includes the right to be let alone, and that she has the right to order her own life and manage her own affairs in a manner that may be most agreeable to her so long as the exercise of that right does not violate the rights of others.

“The invasion of the right of privacy may be defined also as the wrongful intrusion into one’s private activities in such manner as to outrage or to cause mental suffering, shame or humiliation to a person of ordinary sensibilities. A person may, therefore, adopt a life of seclusion with a right to remain undisturbed if she so desires.

‘ ‘ Therefore, if you find from the evidence that the conduct of either of the defendants, or both of them, was such as to outrage or to cause mental suffering, shame or humiliation to a person of ordinary sensibilities, it will be your duty to return a verdict for the plaintiff and against such offending defendant or defendants.

“If you find from the evidence that either of the defendants or both of them, threatened to sue the plaintiff and threatened to appeal, or did appeal, to her employer -willfully or intentionally for the purpose of producing mental pain and anguish in attempting to collect a debt, or by such coercion collect such debt, it will be your duty to return a verdict for the plaintiff against such offending defendant or both of them as the case may be.”

Special charge No. 2:

“I charge you that malice in law is the disposition to injure another without cause from a spirit of revenge and may be defined as a wrongful act done intentionally without just cause or excuse, or the willful doing of an injurious act without lawful excuse or purposely doing a wrongful act without a justifiable excuse, and after consideration of all the evidence in this case, if you find the acts complained of in the plaintiff’s amended petition were maliciously done by one of the defendants, or both of them, as I have defined malice, you may go beyond the rule of compensatory damages and award exemplary or punitive damages,- that is such damages as would compensate her for the wrong done and to punish the offending defendant or defendants, as the case may be.
“In the event you find the plaintiff is entitled to punitive or exemplary damages, you may also allow the plaintiff reasonable attorney fees for her counsel.”

Special charge No. 3:

“I charge you that where the right of privacy is invaded, the person injured is entitled to recover substantial damages although the only damages suffered by her result from mental anguish, and by substantial damages I mean damages of real worth and importance, of considerable value as opposed to nominal damages which are assessed to satisfy a bare legal right.”

In our opinion the special charges were properly given, as they correctly set forth the applicable principles of law to the factual issues developed in this case.

In the general charge, the court’s instruction on the law was substantially the same as in the special charges. With respect to appellant’s claim that error existed in the general charge, it is observed that only a general exception was taken by the appellant, at the close of the charge. If the general charge was faulty, it was an error of omission and not of commission, and a general exception would not be sufficient on which to predicate error. We find no error in the general charge with respect to substantial and punitive damages.

We appreciate that the law with respect to a right of action for the invasion of the right of privacy is in the stage of development, and especially is this true in the state of Ohio. In sustaining the judgment, we concede we are not free from doubt. However, in our opinion, Ohio should definitely fall in line with the weight of authority on this legal proposition.

The judgment is sustained by sufficient evidence and is not contrary to law.

We find no error in the record prejudicial to the rights of the appellant. The judgment is affirmed.

Judgment affirmed.

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