author: Metcalf, J.

text:
    Flannery, Appellee, v. Tessaromatis et al., d. b. a. Phoenix Pie Co., Appellants.
    (No. 558
    Decided March 23, 1949.)

      Messrs. Bannon, Bannon & Howland, for appellee.

      Mr. Cyrus P. Kahl, for appellants.
   Metcalf, J.

This is an appeal on questions of law from a judgment of the Municipal Court of Portsmouth in favor of the plaintiff, Harold Flannery, against the defendants, George and Harry Tessaro-matis, doing business as Phoenix Pie Company, in an action for damages growing out of a collision between the automobiles driven by plaintiff and a third party.

At about 7:00 o ’clock p. m., on September 12, 1947, plaintiff, together with two passengers, was traveling easterly on Robinson avenue, which avenue runs in a general easterly and westerly direction, and approaching its intersection with Offnere street, which street runs in a general northerly and southerly direction, in the city of Portsmouth. While no ordinance of the city of Portsmouth is pleaded, it is alleged and admitted and the evidence establishes that Offnere street is a “through highway” and that Robinson avenue at its intersection with Offnere street is an “intersecting stop street,” and that at the time in question there was a proper stop sign, .erected as provided by law, on the southwest corner of this intersection advising vehicular traffic on Robinson avenue approaching from the west of its obligation to stop before entering the intersection.

Plaintiff, while traveling at a lawful rate of speed, approached and entered Offnere street from Robinson avenue without stopping or slackening his speed, and while in the intersection was struck by an automobile owned and being driven by a third party in a southerly direction on Offnere street. The record indicates, and the trial court so found, that the car being driven by the third party was being operated in a lawful manner.

Plaintiff admits that as he entered this intersection he looked only to his right; that he did not look to his left, the direction from which the third party was approaching; and that he did not see the third party until a “split-second” before plaintiff’s car was struck on its left side, causing the damages complained of.

Plaintiff, at the time of the accident, was a resident of Kentucky. He was not familiar with Robinson avenue or Offnere street, did not know that the former was a stop street or the latter a through highway, and, therefore, did not stop, believing that it was his duty to look only to the right as he entered the intersection. After the collision plaintiff did observe the stop sign but found parked along the southerly curb of Robinson avenue, headed east, a tractor-trailer truck of the defendants with its bumper approximately three feet from the stop sign, which truck plaintiff claims obscured his view of the sign and that the negligence of the defendants in so parking or permitting the truck to be parked was the direct and.proximate.cause of the plaintiff’s damage.

The statutory provision on which this.cause of action is predicated is Section 6307-66 (a) 7, General Code, which provides in substance that no person shall park a vehicle within thirty feet upon the approach to any stop sign or traffic-control signal located at the side of a roadway.

It should be added in passing that plaintiff made a party defendant the Gil Galyean Company, a corporation, it being the owner of the garage whose employee had parked the truck on delivering it to the defendant Phoenix Pie Company after it had been serviced. This corporate defendant was dismissed by the trial court during the .trial, and, no cross-appeal having been taken from such dismissal, no - further consideration need be given this defendant except in disposing of one of the assignments of error hereinafter set forth.

The answer of the defendants (Phoenix Pie Company) is first a general denial and, second, that if plaintiff was so damaged “and that if it should he found that these answering defendants were in any respect negligent which, however, they deny, then plaintiff’s own negligence and his failure to use ordinary care to observe and avoid the other vehicle, at the time and place mentioned, directly and proximately contributed to whatever injuries plaintiff may have sustained.”

There are four assignments of error, the first, second and fourth being, in that order, error claimed in the overruling of the demurrer, the overruling of the motion to require an election as against which of the defendants plaintiff would proceed, and in the assessing of damages. The second and fourth assignments are not well taken for the reason that the court did dismiss one of the defendants, the corporation, as hereinabove mentioned, and the damages were established in an acceptable and proper manner. A discussion of the first assignment is not necessary in view of the position this court takes of the questions raised under the third assignment which is that “the trial court erred in finding the defendant * * * liable under the evidence submitted. ’ ’

Conceding for the purposes of this opinion that the defendants (Phoenix Pie Company) were negligent in permitting the truck to be so parked, that the parking thereof obscured the stop sign, and that this negligence was a direct and proximate cause of plaintiff’s damage, the sole question to be answered in this appeal is whether the plaintiff was guilty of negligence directly contributing to the proximate cause of the damages sustained?

It is the theory of plaintiff in this appeal, and was in the trial court, that when a lawfully erected stop sign is obscured or not visible to one who has no personal knowledge of its existence, the intersection guarded by such stop sign automatically becomes an intersection controlled by Section 6307-40, General Code, which section reads:

“Excepting where otherwise provided the operator of a vehicle * * * shall yield the right of way at an intersection to a vehicle * * * approaching from the right.” (Emphasis supplied.)

It is well to keep in mind some other provisions of the statute covering the situation at the intersection involved. Section 6307-2, General Code, defines a “through highway” to be “every highway or portion thereof at the entrance to which vehicular traffic from intersecting highways is required by law, to stop before entering or crossing the same.”

In the same section “right of way” is defined as “the right of a vehicle * * * to proceed uninterruptedly in a lawful manner in the direction in which it * * * is moving in preference to another vehicle * * * approaching from a different direction into its * * * path. ’ ’

Under subdivision (a) 6 of Section 6307-7, General Code, the city of Portsmouth had the right to designate Offnere street as a “through highway” and require all vehicles to stop before entering or crossing the same, provided that under subdivision (b) of this section “signs giving notice of such local traffic regulations are posted upon or at the entrances to the highway or part thereof affected as may, be most appropriate.” We must assume that this street was so designated and the stop sign lawfully installed, even though the ordinance creating the same was not pleaded, for the reason that without such designation and without such lawful installation there could be no cause of action against the defendants (Phoenix Pie Company) so far as this case is concerned.

The person who was driving southerly on Offnere street, the through highway, had the right to proceed uninterruptedly in a lawful manner across the intersection, and surely it was the duty of the plaintiff to permit him to so proceed. There can be no argument that as between plaintiff and the third person, the latter had the right of way. This being true, will the plaintiff be allowed to say that he did not know the legal implications applicable to vehicular traffic at this intersectioh and that, therefore, he was justified in entering the intersection without stopping and looking to his left.

On this point, plaintiff testified on direct examination as follows:

“Q. What were the weather conditions on this day? A. Well, it was dark and raining.

“Q. How far did you go on Robinson avenue? A. To Offnere.

“Q. In which direction were you proceeding on Robinson avenue? A. East.

“Q. What occurred when you arrived at the intersection of Robinson avenue and Offnere street? A. I was hit in the side by another automobile.

“Q. In what direction was the other automobile proceeding? A. South on Offnere. * * *

“Q. Where, with reference to the intersection, did the accident occur? A. Approximately at the center.

“Q. Did you observe any stop sign on the southwest corner of Robinson avenue at any time after the accident? A. Yes.

“Q. Did you observe it before the accident? A. I did not.

‘ ‘ Q. Did you at any time observe a truck of Phoenix Pie Company? A. I did.”

On cross-examination plaintiff testified:

“Q. When did you first observe this car that was coming down the hill that ran into you that night? A. Well, just a split second before it hit me.

“Q. Did the car have any headlights? A. Yes.

“Q. Was there any traffic going either way at that time? A. No, I don’t believe so.

“Q. Was there any traffic on Offnere street going either way at the time? A. No, I don’t think so.

“Q. As you approached the intersection of Robinson avenue and Offnere street, did you look to see whether there was any car coming from either direction? A. Yes, I was watching on the right..

“Q. But you didn’t watch on the left? A. Well, after it was too late I looked around.

“Q. As you entered the intersection? A. Yes, I was watching to my right first. * # *

“Q. Do you want us to understand that you didn’t see this car coming until it hit you? A. Well, I saw him just before the impact.”

Plaintiff was the last witness on behalf of himself and rested his case at the conclusion of his testimony. Counsel for defendants moved, among oilier things, for judgment ‘ ‘ on the further grounds that the evidence of plaintiff shows that the plaintiff was guilty of contributory negligence in not entering the intersection in a cautious manner and observing the traffic coming from either direction on Offnere street. ’ ’

In passing on this phase of the motion for judgment ■ on' the ground of contributory negligence the trial court said that “any person entering an intersection, where no control is present, then falls back upon the state law which gives to the person on the right the right of way.” The court said further that “the law is definite, that he who has entered into the intersection has the right to proceed in a lawful manner, and he who is. entering into an intersection then becomes bound to proceed under ordinary care.” The trial court then reasoned from the physical evidence that by reason of the collision having occurred in the center of the intersection (although the record indicates clearly that each car was in its own lane of traffic), “it would seem to the court that the car of the plaintiff would have been entering the intersection * * * ahead of the car proceeding south on Offnere.” The trial court concluded that, although plaintiff did not stop or look to the left, under the state law he had the right of way and thereupon overruled the motion for judgment on the ground of contributory negligence.

As we understand this ruling, the trial court held that by reason of the stop sign not having been observed by plaintiff, due to the obscuring of it by the tractor-trailer of defendants, the intersection at the place of the collision automatically, so far as plaintiff was concerned, became an ordinary highway intersection controlled by Section 6307-40, General Code, without any other preference to the traveling public over either of these streets, and that, therefore, the person on the -right had the right of way regardless of the other provisions of the General Code and the ordinance of the city of Portsmouth, and, further, that one approaching the intersection first has the right of way over the other under such circumstances regardless of the Code or ordinance.

It seems to this court that one of the cardinal purposes, of the Uniform Traffic Act is to avoid the confusion and danger inherent in races to get to intersections first, and that such rule has been abrogated in Ohio, at least, since the decision of Morris v. Bloom-gren, infra. It seems further to this court that the trial court ignored the statutory provision and the ordinance creating Offnere street a through highway and Robinson avenue an intersecting stop street by treating the fact that the stop sign was temporarily obscured as tantamount to never having been lawfully erected.

While it is always a dangerous practice to attempt to fix the location and situs of two automobiles prior to a collision from the physical condition and location thereafter, yet this court does not hesitate to draw a conclusion entirely different from that of the trial court as to which of the cars entered the intersection first, taking the trial court’s finding that they both were traveling at a lawful rate of speed and in their own lane of traffic. The car driven by the third party had not only entered the intersection but had traversed at least one-half of the distance across Robinson avenue when it struck plaintiff’s car near the front left side, which indicates clearly that plaintiff had only reached the center of one-half of the Offnere street lane of traffic. There are no measurements in the record as to the width of these two streets or the width of the intersection at the place of the collision, but certainly this observation should be clear. However, the law applicable to the right of way in the instant case is not Section 6307-40, General Code, giving the right of way to the vehicle approaching from the right. That section excepts intersections where the right of way has otherwise been provided. The city of Portsmouth, under subdivisión (a) 6 of Section 6307-7, General Code, had otherwise provided by making Offnere street a through highway and Robinson avenue an intersecting stop street.

In Peltier v. Smith, 78 Ohio App., 171, 66 N. E. (2d), 117, it is held in the fourth and fifth paragraphs of the syllabus:

“Section 6307-40, General Code, which provides that the vehicle approaching an intersection from the right has the right of way does not apply to a situation where the collision occurs at the intersection of a through highway and an intersecting stop street.

“The right of a motorist to use the through highway uninterruptedly is an absolute right qualified only by his duty to use it in a lawful manner.” (Emphasis supplied.)

Under such circumstances can plaintiff be allowed to say that, where on a dark and rainy night he traversed a'street in a strange city without slackening his speed or stopping or looking to his left, and in total disregard for his own and other’s sáfety drove directly across the path of a car lawfully traveling on a main arterial street, which approaching car couid have been observed had plaintiff looked, he acted as an ordinary prudent and careful person would have done under the same or similar circumstances?

It must- be kept in mind that the record is void of any wrongdoing on the part of the approaching car on Offnere street. Both the plaintiff and the driver of the other car are presumed to know the law applying to this intersection.

The court in Peltier v. Smith, supra, a case much in point with the instant case so far as the right of way of the drivers of the two automobiles involved are concerned, said at page 173: ,

“The defendant [in-the instant case the third party] was traveling northwardly on College street, and the plaintiff was traveling westwardly on Young street. The defendant, driving on a through highway, had the right to proceed uninterruptedly in a lawful maimer across the intersection and it was the duty of the plaintiff to permit the defendant to proceed across this intersection. In other words, it was the. duty of the plaintiff to yield the right of way to the defendant and not to drive into the intersection so as to deprive the' defendant of his right to proceed uninterruptedly in a lawful manner in the direction in which he was moving.

“The drivers of these two automobiles were presumed to know the law and their rights and obligations under the law. The defendant, driving on the through highway, had a fight to assume that the plaintiff, as he approached the through highway from an intersecting street, would obey the laio by stopping and yielding the right of way to the defendant. Morris v. Bloomgren, 127 Ohio St., 147, 187 N. E., 2, 89 A. L. R., 831; Warnock v. Youngstown Bag & Burlap Co., 14 Ohio Law Abs., 85.” (Emphasis supplied.)

The Supreme Court of the state of Washington, under a statute relative to stop signs and arterial streets very similar to ours, in a case in which it was contended that the appellants did not know that the street they were approaching was an arterial street, and that, by reason of an obstruction to their view caused by an automobile and truck parked “along side and near to the arterial sign,” they could not see it, and drove into the intersection believing they were entitled to the right of way over any traffic approaching from their left, held in Metzger v. Moran (1939), 1 Wash. (2d), 657, 96 P. (2), 580, that “when the proper authority has established an arterial highway and notified its existence to the public by the erection of a stop sign, anyone approaching the arterial from an intersecting street is presumed to know that it is such and required to obey the statutory injunction to stop; ” that a motorist involved in a collision at an intersection with an automobile approaching from the left on an arterial highway can not be heard to say that he did not know of the existence of the stop sign or that he could not see it; and that a motorist driving on an arterial street has the right to assume that the law will be obeyed and that the motorist approaching the intersection from the cross-street will stop before crossing.

' In Franz v. Levine, 72 Ohio App., 280, 51 N. E. (2d), 219, it is held, as disclosed by the syllabus:

“A motorist is not excused from disregarding a stop sign at an intersection by the fact that a ‘defense barrel’ had been placed so as to obstruct his view of such sign as he approached.”

In the Frans case the trial judge found that defendant had failed to stop at a stop sign protecting the intersection where the accident occurred, and that such sign was not visible to defendant at the time because some third person had placed a defense barrel in front of it. The Court of Appeals of the First Appellate District held that the finding supported the judgment for plaintiff, the contention that because defendant’s vision of the sign was blocked without his fault and he therefore could not be held negligent in failing to observe it, being without merit.

In that case, as in the instant case, counsel for defendant (the plaintiff here) cited Blessing v. Welding, 226 Iowa, 1178, 286 N. W., 436. In the Blessing case the action was not against the one who had failed to obey the stop sign, but the suit was between the wife of the driver who was traveling the arterial street and the person who had obscured the sign. As pointed out in the Frans case, the Supreme Court of Iowa held that the parking of the automobile contrary to law so as to hide the stop sign was the proximate cause of the collision between the automobiles notwithstanding the intervening act of the traveler on the stop street in disregarding the right of the plaintiff who was traveling on an arterial highway. However, the Iowa court did not say that the one who disregarded the right of the traveler on the arterial highway was not negligent, its decision being that tbe person who unlawfully obstructed tbe view of the stop sign was negligent and that such negligence contributed to the proximate cause of the collision.

A reading of the Blessing case reveals the Iowa court emphasized that, even if the party who disregarded the stop sign by reason of it being obscured is negligent, such fact is of no avail if the one who obscured the sign, acting as an ordinary prudent person, could or should have anticipated that such or a similar intervening act would occur.

It is said in the opinion in Jones v. McCullough, 148 Kan., 561, at page 566, 83 P. (2d), 669:

“The defendant insists he was not obliged to stop, because there was no stop sign on the north side of the intersection, and a' police ordinance provided that no provision of the stop-sign ordinance should be enforceable against an alleged violator, if at the time and place of the alleged violation, the sign was not in a proper position and sufficiently legible to be seen by an ordinarily observant person. Obviously, such a police ordinance, while it would be effective to relieve the violator from prosecution and fine, could not change the character or nature of streets and thoroughfares which were expressly designated by another ordinance as constituting principal streets and rights of ways.”

In Connors v. Dobbs, 77 Ohio App., 247, 66 N. E. (2d), 546, the plaintiff was driving northerly in the city of Akron on North Hawkins avenue, an arterial street, and the defendant, Dobbs, was driving westerly on Bryden drive, an intersecting stop street. The stop sign on Bryden drive had apparently been removed or destroyed; Both drivers were proceeding at a lawful rate of speed and, not having observed any stop sign., Dobbs did not stop and a collision occurred at the intersection. The court held in the first paragraph of the syllabus:

“A municipality may, by ordinance, designate a main thoroughfare, provided legible and appropriate signs are properly erected along the intersecting roads; but after such compliance the main thoroughfare does not lose its status merely because a sign on an intersecting road becomes illegible or is destroyed.” (Emphasis supplied.)

In the course of the opinion, at page 250, the court, after calling attention to the statutory requirement that the erection of stop signs is necessary to effectuate the designation of main thoroughfares by ordinance, stated:

“There is not, however, so far as we have-been able to ascertain, any Ohio case holding that a street so designated as a main thoroughfare, where stop signs on intersecting streets have been erected after the designation of the main thoroughfare, loses its character as a main thoroughfare merely because said stop signs on the intersecting streets may have become illegible, or have been destroyed or otherwise removed.”

See, also, subdivision (a) 6 and (b) of Section 6307-7, General Code.

At page 251 of the Connors case, the court, in observing that the plaintiff had the right to proceed uninterruptedly across this intersection in a lawful manner, commented:

“Dobbs, under these circumstances, was by law required to stop before entering the intersection, and his failure to do so was negligence.

“A proper sign having been erected, Dobbs was charged with knowledge of the designation of Hawkins avenue by ordinance as a main thoroughfare, even in the then absence of a stop sign * *

It being established by the great weight of authority that Flannery did not have the right of way at the intersection of Robinson avenne and Offnere street, and that he was bound by law to know this, when he testified that he did not stop and did not look to his left and that he did not observe any traffic on Offnere street going either way, when in fact if he had looked he would have seen the car approaching and entering the interse’ction on the arterial street, his testimony at least raised a presumption of negligence upon his part contributing directly to the damages complained of, and the burden was cast upon him to dispel that presumption. He offered no such evidence, none of the testimony in any way going to that issue save the testimony of a passenger in the front seat, who testified in substance that he likewise did not look to the left.

At the close of plaintiff’s evidence the question of contributory negligence had not only been raised by plaintiff’s own testimony but had ceased to be a question of fact and had become an ascertained fact for the application of the law thereto by the court under the motion filed. 4 Ohio Jurisprudence, 635, Section 41; Galiardi v. Bowmen, 20 Ohio Law Abs., 452; Spusta v. Bernow, 7.Ohio Law Abs., 90; Roland v. Newman, 7 Ohio Law Abs., 100.

The Supreme Court, in the case of Baltimore & Ohio Rd. Co. v. McClellan, Admx., 69 Ohio St., 142, 68 N. E., 816, laid down the law in the second paragraph of the syllabus as follows:

“Where the testimony of the plaintiff raises a clear presumption of negligence on his part which directly contributed to his injury, and no testimony is offered by him tending to rebut that presumption, it is the duty of the trial court to sustain a motion by the defendant made at the conclusion of plaintiff’s evidence, to direct a verdict, and a refusal to sustain such motion is error.”

Again, the Supreme Court in the case of Norris, Exrx., v. Jones, Recr., 110 Ohio St., 598, 144 N. E., 274, said on page 603:

“* * * However, it is the rule in Ohio that when plaintiff’s evidence raises a clear presumption of contributory negligence which is not rebutted by any evidence, it is the duty of the court to take the case from the jury.”

In discussing this same question, 13 Ohio Jurisprudence, 648, Section 312, states:

“It is reversible error to overrule a motion to direct a verdict for the defendant, in a case where the facts give rise to a clear legal presumption under which he would be relieved of liability, and there is no evidence inconsistent with this presumption.”

See, also, Hafer, Admr., v. Alex Wilson Co., 83 Ohio App., 5, 82 N. E. (2d), 123, decided by this court on December 30, 1941.

The motion for judgment on the ground of contributory negligence should have been allowed.

This not having been done, there is nothing in the testimony of the defense to in any way dispel or rebut the presumption of contributory negligence raised by the plaintiff, and the judgment at the conclusion of all the testimony should have been for the defendants.

There is a serious question in this case as to whether the illegal parking of the tractor-trailer by defendants, under all the circumstances, was negligence per se, and whether such act was in any way the proximate cause of the collision. We deem it unnecessary, however, to discuss this issue further than to observe that the case of Szabo, a Minor, v. Tabor Ice Cream Co., 37 Ohio App., 42, 174 N. E., 18, relied upon by plaintiff to support the issue of proximate cause is not decisive.

In the Ssabo case the defendant’s truck was parked between a safety zone and curb in such a manner that the driver of the truck in which plaintiff was riding when injured thought the truck was in motion when he first saw it, and that but for such parking the injuries would not have occurred because there would have been ample space for the Szabo truck to have passed. The court observed that if the defendant’s truck had not been so parked, no injury would have been sustained by the plaintiff. It cannot be said under the circumstances in the instant case, as revealed by the testimony of the plaintiff, that the collision would not have occurred had it not been for defendants ’ truck illegally parked.

See, also, the third paragraph of the syllabus of Peltier v. Smith, supra, wherein it was held that the plaintiff was negligent under circumstances similar to the instant case in failing to yield the right of way to the party traveling on the arterial street, and that such negligence was the proximate cause of the collision.

However, it is the conclusion of this court that under all the surrounding circumstances disclosed by the record, plaintiff was guilty of negligence directly contributing to the proximate cause of the collision, and that this was established as a matter of law both at the conclusion of plaintiff’s evidence and at the con-, elusion of the trial, which precludes a recovery.

The judgment must be reversed and, there being no conflict of testimony on the material issues in this case, the question being solely one of law, this court will enter, the judgment that should have been entered by the trial court by dismissing plaintiff’s petition and entering judgment for the defendants.

Judgment reversed and final judgment

for defendants.

McCurdy, P. J., ando Gillen, J., concur.


source: Caselaw Access Project

author: Doyle, J.

license: Public Domain

text:
    Lytle, Appellee, v. The Pennsylvania Rd. Co., Appellant.
    (No. 1113
    Decided December 12, 1951.)

      Messrs. Critchfield, Critchfield, Critchfield & Johnston, for appellee.

      Messrs. Wise, Roetsel, Maxon, Kelly & Andress, for appellant.
   Doyle, J.

Property of Edward F. Lytle was damaged by water overflowing Ms land from a natural watercourse. In Ms action against the Pennsylvania Railroad Company, based upon the claimed negligence of the carrier proximately resulting in his damage, he alleged in substance that: On and prior to June, 1946, a watercourse passed through his premises in its natural channel; defendant’s railroad tracks cross the aforesaid watercourse; some time prior to June, 1946, the defendant built a new bridge for the accommodation of its tracks over the channel of the stream, and, in so doing, erected a structure 14 feet 8 inches in length, with a clearance of 5 feet and 10 inches, whereas the old bridge which it replaced was 36 feet in length and had a clearance of 9 feet; “prior to the defendant’s action, the natural flow from this watercourse passed through [under] the bridge without any interference whatsoever, and * * * the plaintiff had never been damaged by reason of any backwater, but when the defendant changed the * * * dimensions of the bridge, it interfered with the flow of the water. Said new bridge was insufficient to permit the water to flow free and uninterrupted”; and in June, 1946, following a rain which was “not unprecedented,” the bridge, because it was not of sufficient length or space and clearance “to permit the water to flow uninterruptedly,” caused the water to “back up” on the lands of the plaintiff.

Pursuant to trial, a jury rendered a. verdict in favor of the plaintiff, and judgment was entered thereon. The present appeal to this court followed, and we now have before us various claims of error, which it is asserted are prejudicial, and deprived the defendant of a fair, trial.

It has been suggested that the statute of limitations has run against this claim. The law on this point is well stated in 54 Corpus Juris Secundum, Limitations of Actions, Section 172 a, as follows:

“A cause of action for damages from an obstruction not in its inception unlawful as to plaintiff accrues when injury results from diversion of waters; but, where the obstruction is initially unlawful as to plaintiff the cause of action may accrue on completion of the obstruction or as soon thereafter as permanent injury therefrom becomes apparent.”

Reference is made to the cases therein cited in support of the text.

In the instant case, the cause of action accrued, if at all, at the time of the flooding of plaintiff’s property, and not at the time of the erection of the bridge. There is nothing to show that the erection of the bridge was unlawful in its inception.

Exceptions were taken to the general charge of the court to the jury, and especially to the court’s failure to apply the rules of negligence and proximate cause to the pleadings and the evidence. It was claimed by the defendant throughout the case that plaintiff’s damages were caused by a flood of unusual and extraordinary violence, and the fact that the court failed to explain to the jury what bearing such a circumstance would have on making a case of liability against the defendant was error of a prejudicial character.

The defendant likewise excepted to the court’s refusal to give certain written requested instructions before argument of the case to the jury.

Attention will be now directed to one of the requested instructions, which the court refused to give before argument. It is in the following form: “You are instructed that the plaintiff cannot recover damages from the defendant for any injury to his property which was caused by an unusual flood of the unnamed creek. ’ ’

If this is an accurate statement of the law, pertinent to the issues, and applicable to the factual situation to which it was intended to apply, a mandatory duty rested upon the court to give it in the' form tendered. Bradley, an Infant, v. Mansfield Rapid Transit, Inc., 154 Ohio St., 154, 93 N. E. (2d), 672.

It is a general principle of law that there devolves upon a company, in the construction of a bridge across a natural watercourse, the duty and obligation to provide and maintain an opening or openings for the natural flow of the waters, sufficient to afford an outlet for all of the waters that might reasonably be expected to flow, and this with reference to such freshets and usual and ordinary floods as might reasonably be expected.

The text in 8 American Jurisprudence, Bridges, Section 75, gives the rule as follows:

“* * * A duty, therefore, exists to use due care in the construction of bridges, * * * so as to make them adequate to carry off all the water which usually flows in the stream, including such usual and ordinary floods as may be reasonably expected to'occur. Such duty does not extend to extraordinary or unprecedented floods # * *.”

See cases cited in support of this text.

The charge requested before argument, as heretofore noted, used the words “unusual floods.” If the words were understood to mean one so outside of ordinary experience that its occurrence was not reasonably to have been anticipated, then the words possibly would not tend to mislead. However, the word “unusual” is so indefinite and has so many shades of meaning that the charge, had it been given, would, we believe, have tended to obscure rather than illuminate the true rule. We find no error in the court’s refusal to give the instruction before, argument. See: Broadway Mfg. Co. v. Leavenworth Terminal Ry. & Bridge Co., 81 Kan., 616, 106 P., 1034, 28 L. R. A. (N. S.), 156.

However, reading further into the record, there may be found the following report of the proceedings at the conclusion of the court’s general charge, but before thé retirement of the jury :

“Mr. Roetzel: The defendant requests the court to instruct the jury as a part of the general charge as follows: You are instructed that the plaintiff cannot recover damages from the defendant for any injury to his property which was proximateiy caused by an unusual flood of the unnamed creek.

“The court: Overruled.'

“Exception.

“Mr. Roetzel: We further request the court if this request does not correctly state the law upon the subject matter, we ask the court to charge the law as the court considers it to be correct.

“The court: Overruled.

“Exception.”

It has long been the rule in this state that “1. Where the charge of the court is free from error prejudicial to the party excepting thereto, but fails to cover all the questions involved in the case, such failure is not a ground for reversal, unless it was called to the attention of the court, and further instructions requested and refused, provided the jury is not misled by the charge as given.” (Emphasis ours.) Columbus Ry. Co. v. Ritter, 67 Ohio St., 53, 65 N. E., 613.

See, also, cases cited substantiating the text in 2 Ohio Jurisprudence (Part 2), Appellate Review, Section 746.

However, “3. An oral request for additional instructions after the general charge must be given if the language of the request is sufficient to call the court’s attention to a material omission in instructions previously given, and its refusal in a proper case constitutes prejudicial error.” Casanova v. Wagner, 85 Ohio App., 278, 88 N. E. (2d), 312.

While we have heretofore said that the requested charge was properly refused before argument, it indeed invited the attention of the court to a highly controversial factual question in the case (the severity of the flood), and called the court’s attention to the right of the defendant to have the jury charged as to its liability under circumstances not to be reasonably foreseen.

In addition to the general rule heretofore set out in quotation from 8 American Jurisprudence, the .Supreme Court of this state has said, on the question of liability for flood damage; “3. In order to fix liability on an owner in such case, it must be shown that his negligence concurred with the act of God in causing the injury; but if the act of God, such as an extraordinary flood, was so overwhelming and destructive as to produce the injury, whether the defendant had been negligent or not, his negligence cannot be held to be the proximate cause of the injury.” City of Piqua v. Morris, 98 Ohio St., 42, 120 N. E., 300, 7 A. L. R., 129.

See, also, East Liverpool City Ice Co. v. Mattern, 101 Ohio St., 62, 127 N. E., 408.

“* * * if the vis major is so unusual and overwhelming as to do the damage by its own power, without reference to and independently of any negligence by defendant, there is no liability.” City of Piqua v. Morris, supra, at p. 49.

It is our thought that the rule deducible from the cases, both in this state and elsewhere, may be succinctly stated as follows: A railroad company which constructs and maintains a bridge over a stream must exercise ordinary care to provide for the flow of water in the stream, and, for a failure to do so, it may be liable in damages. At times of flood, if such flood is not an extraordinary or unprecedented one, but is one which could reasonably have been foreseen, and the character of the bridge obstructs the flow so as to cause damage by the overflowing of adjacent lands, the railroad company may be liable for the damages resulting because of the construction of a bridge inadequate to safeguard the property of riparian proprietors. This would establish the tort of negligence proximately causing damage. On the other hand, if the flood is so extraordinary, overwhelming and destructive that the damage would have resulted regardless of the negligence of the defendant, or if the flood was so extraordinary or unprecedented that it could not have been reasonably anticipated while using ordinary skill and foresight in the construction and maintenance of the bridge, the railroad company is not liable. City of Piqua v. Morris, supra; East Liverpool City Ice Co. v. Mattern, supra.

So, in the case before us, the defendant was required to use reasonable care and engineering skill in the construction and maintenance of its bridge, to avoid damage to the plaintiff by reason of freshets and floods, which experience taught might be reasonably expected to occur at any time, but it was not required to anticipate and use precautions to prevent injury from floods caused by unusual, extraordinary and unexpected storms which reasonable foresight or sagacity would not have foreseen, nor was it liable for an act of Grod which would have caused damage regardless of negligence.

Whether this storm was of such a character was a question for the jury under proper instructions, and a refusal to so instruct upon request constituted prejudicial error.

Other claimed errors have been examined, and we find them not to be of a prejudicial character.

Judgment reversed and cause remanded.

Judgment reversed.

Hunsicker, P. J., and Stevens, J., concur.


author: Htjnsicker, J.

text:
    Dice, Appellant, v. The Akron, Canton & Youngstown Rd. Co., Appellee.
    (No. 4095
    Decided June 22, 1950.)

      Messrs. Gottwald, Hershey & Hatch, for appellant.

      Messrs. Wise, Roetsel, Maxon, Kelly & Andress, for appellee.
   Htjnsicker, J.

This is an appeal on questions of law.

John F. Dice, appellant, herein called Dice, brought an action against The Akron, Canton & Youngstown Railroad Company, appellee, herein called Railroad, to recover for personal injuries arising out of an accident which occurred when a locomotive upon which Dice was working as a fireman, was derailed.

The parties were engaged in interstate commerce, and the action was brought under the provisions of the Federal Employers’ Liability Act.

The petition of Dice alleged the essential facts necessary to state a cause of action. The Railroad in its answer admitted that it was a common carrier engaged in interstate commerce, and that Dice, an employee, was injured as a result of the derailment, but specifically denied it was guilty of, negligence, and denied the claimed extent and nature of the injuries Dice sustained.

As a second defense to the claims of Dice, the Railroad said it had paid Dice the sum of $924.63 as a full and complete settlement of all claims which he might have against the Railroad. The Railroad also alleged that Dice had executed and given to the Railroad a full and complete written release and satisfaction of all claims and rights of action which he, Dice, might have against the Railroad.

A reply, and later an amended reply, was filed by Dice, in which he stated that: there was no full and complete settlement of his claims against the Railroad ; $924.63 was paid to him but not as a full settlement; he tendered the amount of $924.63 to the Railroad, which sum they refused to accept; he signed various papers for the Railroad which, he was informed, were necessary to release the Railroad from claims for loss of work time and medical expenses before he, Dice, could return to work. Dice further denied that .he knew that, at the time he executed the purported release, it was a complete release of all claims of every kind and character. Dice further said he believed the representations of the agent for the Railroad that such release was only for wages lost to the date of the signing of such release; that such rep-reséntation was false and was relied upon by him to his damage.

At the beginning of the trial, counsel for the Railroad sought to have the validity of the release determined by the court as a matter of law, separate and apart from and prior to the determination of any issues of fact. The trial court determined to proceed to try all issues to the jury.

A verdict was returned by the jury in favor of Dice, and, upon a motion for judgment notwithstanding the verdict made by the Railroad, a judgment in favor of the Railroad was entered by the court.

It is from such judgment that this appeal is prosecuted by Dice, who says:

“The trial court committed error prejudicial to the rights of the plaintiff-appellant in sustaining the defendant-appellee’s motion for judgment in its favor, notwithstanding the verdict of the jury for the plaintiff-appellant. ”

The parties, by their briefs and in oral argument of counsel, confine their discussion to the propriety of the trial court’s finding, as a matter of law, that the several releases given by Dice, and especially the release which was executed in September, 1944, were valid and binding upon Dice.

The instant case was brought pursuant to the provisions of the Federal Employers’ Liability Act of 1908, 45 IT. S. Code, Section 51, eh seq., as amended in 1939.

We are, therefore, required to determine whether, under the provisions of the Federal Employers’ Liability Act, the submission of the question of the validity of such a release is a matter for the jury or for the court.

“By the Federal Employers’ Liability Act, Congress took possession of the field of employers’ liability to employees in interstate transportation by rail; and all state laws upon that subject were superseded. * * * The rights and obligations of the petitioner depend upon that Act and applicable principles of common law as interpreted by the federal courts.” Chicago, Milwaukee & St. Paul Ry. Co. v. Coogan, 271 U. S., 472, at p. 474; 70 L. Ed., 1041, at p. 1043, 46 S. Ct., 564.

See, also, Chesapeake & Ohio Ry. Co. v. Kuhn, 284 U. S., 44, at p. 46; 76 L. Ed., 157, at p. 160, 52 S. Ct., 45.

“It is contended that this construction of the complaint is binding on us. The argument is that while state courts are without power to detract from ‘substantive rights’ granted by Congress in FELA cases, they are free to follow their own rules of ‘practice’ and ‘procedure.’ To what extent rules of practice and procedure may themselves dig into. ‘ substantive rights’ is a troublesome question at best as is shown in the very case on which respondent relies. Central Vermont R. Co. v. White, 238 U. S., 507 [59 L. Ed., 1433, 35 S. Ct., 865, Ann. Cas., 1916B, 252, 9 N. C. C. A., 265]. Other cases in this court point up the impossibility of laying down a precise rule to distinguish ‘ substance’ from ‘procedure.’ Fortunately, we need not attempt to do so. A long series of cases previously decided, from which we see no reason to depart, makes it our duty to construe the allegations' of this complaint ourselves in order to determine whether petitioner has been denied a right of trial granted him by Congress. This federal right cannot be defeated by the forms of local practice. See American Ry. Exp. Co. v. Levee, 263 U. S., 19, 21 [68 L. Ed., 140, 143, 44 S. Ct., 11].” Brown v. Western Ry. of Alabama, 338 U. S., 294, at p. 296, 94 L. Ed., 100, at p. 102; 70 S. Ct., 105.

Many recent Oases concerning the more limited phase of the problem before ns have been reported by the federal courts. If it ever was the law, as applied to this question before us, that the validity of a release merely voidable, was a question of law to be determined by the court and not an issue of fact to be submitted to the jury, these late cases effectively state that the issue is one of fact for a jury to determine.

In this connection, the recent case of Garrett v. Moore-McCormack Co. (1942), 317 U. S., 239, 87 L. Ed., 239, 63 S. Ct., 246 (a release case founded under the Federal Merchant Marine Act), made a pronouncement on the subject which the Federal Circuit Courts of Appeals were quick to adopt in their applications to similar situations arising under the Federal Employers’ Liability Act.

The validity of a release which is relied on as a defense to an action under the Federal Employers’ Liability Act is a question which is to be determined by federal law. Ricketts v. Pennsylvania Rd. Co., 153 F. (2d), 757, 164 A. L. R., 387 (Second Circuit, 1946); Brown v. Pennsylvania Rd. Co., 158 F. (2d), 795 (Second Circuit, 1947); Thompson v. Camp, 163 F. (2d), 396 (Sixth Circuit, 1947); Irish v. Central Vermont Ry., Inc., 164 F. (2d), 837 (Second Circuit, 1947); Graham v. Atchison T. & S. F. Ry. Co., 176 F. (2d), 819 (Ninth Circuit, 1949); Chicago & N. W. Ry. Co. v. Curl, 178 F. (2d), 497 (Eighth Circuit, 1950).

The Supreme Court of the United States, so far as we have been- able to discover, has not directly passed on the limited question before us in the instant case. That court, however, in the case of Callen v. Pennsylvania Rd. Co., 332 U. S., 625, 92 L. Ed., 242, 68 S. Ct., 296, did say, in a release case, at page 629:

“It is apparent that the jury accepted the instructions of the court on the subject of the release. Returning, they rendered a verdict ‘for the plaintiff, and assess the damages at $25,240.00, of which the railroad is to be reimbursed with $250.00. ’ The court, saying he wanted to make the record right, asked the jury if they made a net finding of $24,990, which the foreman said they did. Under the instructions they had received, there was little else that the jury could do, for the court had withdrawn from them the issue as to the validity of the release and consequently had given them no instructions as to the law that should govern the determination of any such question.

“While the trial court assumed a finding of permanency as a basis for his setting aside of the release, after challenge to his assumption as to the nature of the injuries he made every effort to correct the impression, insofar as it affected the issue of damages. But the trial court did not correct or in any way alter his determination that the release was not binding insofar as it rested on the assumption of permanent injury. The Court of Appeals was right in holding that failure to submit this latter question to the jury was reversible error.”

The recent federal cases make no distinction in the requirement that, even though the release is merely voidable and not void, a jury issue is presented. Graham v. Atchison, T. & S. F. Ry. Co., 176 F. (2d), 819; Chicago & N. W. Ry. Co. v. Curl, 178 F. (2d), 497.

And the Per Curiam opinion in Brown v. Pennsylvania Rd. Co., 158 F. (2d), 795, as bearing on this question, is as follows:

“The appellant contends that a verdict should have been directed in its favor because of a general release executed by the plaintiff in consideration of the payment to him of $170.40. This sum was the amount of wages lost during the period of time he was incapacitated for work by reason of his injuries. He testified that he signed the document without reading it in full, believing it to be a receipt for lost wages because of representations made by the defendant’s claim agent. The latter told a different story. Whether the release was procured by misrepresentation presented an issue involving the credibility of contradictory witnesses which was properly submitted to the jury for decision. See Chesapeake & Ohio R. Co. v. Howard, 178 U. S., 153, 167, 20 S. Ct., 880, 44 L. Ed., 1015; Southern Ry. Co. v. Clark, 6 Cir., 233 F., 900; Miles v. Lavender, 9 Cir., 10 F. [2d], 450; Ricketts v. Pennsylvania R. Co., 2 Cir., 153 F. [2d], 757; Farrington v. Harlem Savings Bank, 280 N. Y., 1, 19 N. E. [2d], 657. There was also testimony that the defendant’s doctor had not fully informed the plaintiff of the extent of his injuries. See Bonici v. Standard Oil Co., 2 Cir., 103 F. [2d], 437, 439.”

We therefore determine that the trial court committed error prejudicial to the rights of the appellant in entering judgment notwithstanding the verdict. The testimony presented on the issue of validity of the release was not a matter on which reasonable minds could come to but one conclusion.

The trial court was therefore required to present such question to the jury as an issue of fact, which it properly did, and not resolve such issue as a matter of law. It was error to overrule his own action in the submission of the question to the jury by determining the issue of the validity of the release as a matter of law, when considering and granting the motion non obstante veredicto.

We order that the cause be remanded to the Common Pleas Court, with instructions to. enter judgment upon the verdict for the appellant, Dice.

Judgment accordingly.

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


author: Mbtcale, J.

text:
    Monger, Admr., Appellant, v. Jones, Admr., Appellee.

      (No. 148
    Decided June 21, 1949.)

      Mr. Thomas H. Monger, in propria persona.

      Mr. Charles H. Jones, in propria persona.

      Mr. Harry B. Reese, for Robin ■ Stoolfire.

      Mr. David G. Howell, for Frances Guest.
   Mbtcale, J.

This is an action originating in' the Probate Court of Jackson County, wherein proceedings were brought pursuant to Section 10506-86 et seep, General Code, to compel the payment by the defendant, in his fiduciary capacity, of the balance alleged to be due upon, the year’s allowance, together with interest thereon, claimed by plaintiff on behalf of the estate of his decedent.

On May 11,1921, Henry S. Willard, Sr., defendant’s decedent, died testate, leaving Kate R. Willard, plaintiff’s decedent, his surviving spouse. She and their son, Henry S. Willard, Jr., were appointed coexecu-tors of the last will and testament of Henry S. Willard, Sr., and in the inventory and' appraisement of his estate there was set off to the surviving spouse by the appraisers the sum of $6,000 for her year’s allowance.

Kate R. Willard, the surviving spouse and co-executor died testate May. 16, 1923, at which time $1,000 had been paid on her year’s allowance, leaving a balance due in the sum of $5,000.

For the purpose of this opinion it is not necessary to set forth tlm predecessor fiduciaries of plaintiff and defendant.

The case was submitted to the Probate Court upon an agreed statement of facts, and the court found in favor of the plaintiff in the principal sum of $5,000, disallowing the claim for interest. It is from that judgment that plaintiff appeals on questions of law, asking that the same be modified to include interest on the unpaid amount of the year’s allowance.

The statute in effect at the time of the deaths of both plaintiff’s and defendant’s decedents made the year’s allowance to the surviving spouse a preferred claim, subject only to the funeral expenses, expenses of the last sickness, and expenses of administration. (Former Section 10714, General Code.) At that time the statute was silent as to interest on any unpaid allowance or' part thereof. Section 10509-75, General Code, as amended, effective September 2, 1935 (116 Ohio Laws, 396), provides, among other things, that “when money is allowed for the support of such widow or children, the same shall be paid upon approval of the inventory or as soon thereafter as money is available for .that purpose. Such allowance in money shall bear interest at the legal rate from the date of death of the decedent until paid, if demanded.”'

By a long line of decisions, unnecessary to cite, the allowance to the surviving spouse and children has always been considered in Ohio as a debt against the estate of the decedent and a vested right, not divested, even by the death of the widow or any other contingency occurring after the amount has been fixed and allowed. The fixing of the allowance has the force and effect of an adjudication, and the amount so allowed is withdrawn from the balance of the estate and becomes a preferred debt. If not expended by the widow for her support, her estate may recover the amount from her husband’s estate. Unless those entitled to this allowance waive or relinquish their right to it even death does not defeat it. See 18 Ohio Jurisprudence, 449, 450, Section 352, and cases cited thereunder.

This court has carefully examined the agreed statement of facts comprising the bill of exceptions, and in no way can the action of plaintiff’s decedent as coexecutor of her husband’s estate or as his surviving spouse be deemed in any way a waiver or relinquishment of her right to this year’s allowance; nor can any inference of negligence or misconduct on her part be imputed to her in order to bar the claim of . her estate for interest on the unpaid balance.

On the contrary, the bill of exceptions discloses an ardent and sacrificial desire on the part of plaintiff’s decedent to preserve the assets of her deceased husband’s estate, the status of which at no time during her lifetime permitted the payment of this allowance without jeopardizing the assets thereof.

In 18 Ohio Jurisprudence, 462, Section 358, it is said:

“Whether interest should be paid upon the amount allowed the widow by the appraisers for the year’s support up to the time when it was paid depends on the existence of facts which may justify such an order. If the widow, being herself executrix, was negligent in her duties and responsible for the delayed payment of the allowance, she should not profit by the delay.”

In Watts v. Watts, 38 Ohio St., 480, a case decided more than sixty years ago, in which the widow had taken credit for items of interest similar to the interest claimed in the instant case, the Supreme Court said on page 492:

“As to items of interest excepted to, we have not the data before us to determine whether she is entitled to it or not.

“The general rules for charging or allowing interest in the accounts of executors and administrators are applicable. They should be applied in settling this question.”

The defendant in the instant case, in his fiduciary capacity, recognized the.above principle when he filed the first and final account on behalf of his decedent as the deceased executor of the estate of Henry S. Willard, Sr., when he set forth therein “there is now due and owing to Kate R. Willard or her estate, a balance of $5,000 on her year’s allowance as widow with in-est from the 11th day of May, 1922.” (Emphasis supplied.)

Without discussing the effectiveness of the allowance of this account containing the above notation it is sufficient to say that while the defendant fiduciary has done all things necessary to protect his trust, yet, both by that notation and in oral argument, defendant recognized the common-law principle of interest accruing on a liquidated and preferred claim.

Therefore, the judgment of the Probate Court is modified to include the lawful rate of interest from May 11, 1922, and, as modified, is affirmed.

Judgment modified and as modified affirmed.

McCurdy, P. J., and Gillen, J., concur.


author: Guernsey, J.

text:
    Woodruff et al., Appellants, v. Norvill et al., Appellants; Cotner et al., Appellees.
    (No. 525
    Decided March 29, 1951.)

      Messrs. Bope & Cap ell, for plaintiff appellants.

      Mr. J. W. Starritt, Mr. Okey Van Dyne and Mr. John L. Roof, for defendant appellants.

      Mr. Aaron F. Blackford and Messrs. Betts & Betts, for defendant appellees.
   Guernsey, J.

This matter comes to this court upon appeal on questions of law from the Court of Common Pleas of Hancock County, Ohio.

There is no hill of exceptions of the proceedings had in the trial court, and the appeal is submitted to this court upon the record in the Common Pleas Court, consisting of docket and journal entries, original pleadings, praecipes, summonses and the returns thereon.

The following facts, material to a decision of the case, appear from such record.

On June 7, 1949, Melvin Woodruff and 25 others filed their petition in the Common Pleas Court of Hancock County, Ohio, in the caption of which they designated Bernard J. Cotner, Bernice Cotner Willeke, Howard Cotner, Cora Searson, Nancy Chamberlin, Maude Norvill and Cliff Woodruff as defendants.

In this petition they, among other things, allege:

That they, together with the defendant Cliff Wood-ruff, were all the brothers and sisters or lineal descendants of John Woodruff, Jr., who died intestate on July 20, 1937, a resident of Hancock county, Ohio, leaving his widow, Blanche Woodruff, and no children surviving him, and that said John Woodruff, Jr., left an estate which came to his widow relict, Blanche Woodruff, by descent.

That the said Blanche Woodruff, relict of John Woodruff, Jr., died on the 5th day of February, 1949, without issue, and possessed of identical real estate and/or personal property which came to her by descent from said John Woodruff, Jr.

That the purported last will and testament of Blanche Woodruff, dated August 12, 1942, was probated in the Probate Court of Hancock County, Ohio, on February 21, 1949, and on that day letters testamentary thereon were issued by said court to the defendant Bernard J. Cotner as sole executor thereof, who thereupon qualified and is now acting as such executor.

By the terms of said will the defendants Bernice Cotner Willeke and Bernard Cotner were named as the legatees and devisees of said Blanche Woodruff.

That the. paper writing is not the last will and testament of Blanche Woodruff, deceased.

The defendants Howard Cotner, Cora Searson, Nancy Chamberlin and Maude Norvill were the brother and sisters and heirs at law of said deceased relict, Blanche Woodruff.

That the,parent^ of John Woodruff, Jr., were both dead.

The prayer of the petition is that an issue be made up as to whether said paper writing is the last will and testament of Blanche Woodruff, and that the same may be set aside, and for such other relief as is proper.

Attached to the petition, and filed simultaneously, to wit, June 7, 1949, was a praecipe which read: “To the clerk: Please issue summons in this action to the sheriff of Hancock county, Ohio, for the defendant, Bernard J. Cotner. To the sheriff of Hardin county, Ohio, for the defendants, Bernice Cotner Willeke, Howard Cotner, Mrs. Cora Searson, Mrs. Nancy Chamberlin and Cliff Woodruff. To the sheriff of Lucas county, Ohio, for the defendant Maude Norvill, all returnable according to law, endorsed ‘Action for contest of will of Blanche Woodruff, deceased.’ ”

Summonses were issued by the clerk on the 7th day of June, 1949, for the defendants, Bernard J. Cotner, Bernice Cotner Willeke, Howard Cotner, Mrs. Cora Searson, Mrs. Nancy Chamberlin and Cliff Woodruff. Summons was issued June 7, 1949, for the defendant Mrs. Maude Norvill.

On June 8, 1949, summons was returned, endorsed: “On,June 7, 1949, I served the within named Bernard J. Cotner by personally handing to him a true and certified copy thereof, with all endorsements thereon. ’ ’

On June 11, 1949, summonses were returned and filed, endorsed: “Received this writ June 8,1949, at ten o’clock a. m., and on June 9, 1949, I served the within named Bernice Cotner Willeke, Howard Cotner, Cora Searson, Nancy Chamberlin, Cliff Woodruff by personally handing each of them a true and certified copy thereof, with all endorsements thereon.” These returns were filed by the sheriff of Hardin county.

On June 14, 1949, summons was returned and filed, endorsed as follows: “Received this writ on June 8, 1949, at 10:45 a. m., and on the 9th day of June, 1949, I served the within named Mrs. Maude Norvill by delivering to her personally, a true and certified copy of this-writ, with all endorsements thereon.” This return is signed by the sheriff of Lucas county, Ohio.

On July 7, 1949, within six months from the date of the probate of the purported will of Blanche Woodruff, the defendant Maude Norvill, the correct name being Laena Maude Norviel, filed in said cause in said court, her answer and cross-petition.

In said answer said Maude Norvill, correct name being Laena Maude Norviel, admitted relationship of plaintiff; admitted relationship of Eva Blanche Wood-ruff; admitted descent of estate; admitted death of Eva Blanche Woodruff; admitted probate of purported will; admitted letters testamentary were issued to the defendant Bernard J. Cotner as sole executor and acting as such, and that legatees were named as alleged; and admitted an issue should be made up and said paper writing should be set aside.

In her cross-petition, she alleged, among other things, the probate of said alleged will; that defendant Bernard Ootner was appointed executor and had duly qualified; that said Eva Blanche Woodruff was incapable of making a will at the time thé alleged will was executed; and for lack of knowledge denied that Blanche Woodruff was possessed of personal property which came to her by descent from John Woodruff, Jr.

Attached to said answer and cross-petition, a prae-cipe was filed upon said day, as follows, to wit: “To the clerk: Kindly issue summons upon the defendants’ cross-petition, filed herein, upon all the plaintiffs set forth in plaintiff’s petition and for the defendants, Bernice Cotner Willeke, Howard Cotner and Nancy Chamberlin, Bernard Cotner, individually and as executor of the estate of Eva Blanche- Woodruff, deceased, delivered to the sheriff of Hancock county, Ohio, made returnable according to law, endorsed thereon ‘cross-petition to contest will of Eva Blanche Woodruff, deceased, and other relief.’ ”

The record shows that the clerk did not comply -with the praecipe attached to the answer and cross-petition of Maude Norvill, and that summonses were not issued as requested therein, for any of the persons named therein. It does not appear from the record, the reason, if any, for the failure of the clerk to comply with said praecipe and issue summonses as requested therein.

On July 7, 1949, answers and cross-petitions were filed on behalf of the defendants Cora Searson and Cliff Woodruff, and on July 19, 1949, a motion was filed to make new parties defendant, and summons was issued for Frank Musson, guardian of Nancy Chamberlin.

On January 19, 1950, Bernard J. Cotner and Bernice Cotner Willeke filed their motion for dismissal of the plaintiff’s petition and the cross-petitions of the defendants, for the reason that Bernard Cotner, as executor of the last will and testament of Blanche Woodruff, deceased, was not named as a party or served with summons as executor; and that the court was therefore without jurisdiction in the cause.

On January 20, 1950, defendant Maude Norviel, through her attorney, issued an alias praecipe for summonses upon the defendants Bernard Cotner, individually, and as executor of the estate of Eva Blanche Woodruff, deceased, and Bernice Cotner Wil-leke, as heirs and legatees and devisees under the will of Eva Blanche Woodruff, deceased.

Thereafter, the attorney for Maude Norviel, oh January 23, 1950, filed with the clerk of the Common Pleas Court of Hancock County, Ohio, a praecipe for alias summons, directed to the clerk, Charles E. Oman, at Findlay, Ohio.

On January 23, 1950, summons was issued on the answer and cross-petition of Laena Maude Norviel, for defendant Bernard Cotner, individually, and as executor of the estate of Eva Blanche Woodruff, deceased.

On January 23,1950, the summons was returned and filed, endorsed: “Received this writ January 23,1950, at 11 o’clock a. m., and on January 23, 1950, I served the within named Bernard Cotner and Bernard Cot-ner as executor of the estate of Eva Blanche Wood-ruff, deceased, by leaving for each of them at their usual place of residence a true and certified copy thereof, with all the endorsements thereon. ’ ’ Signed, “Orla A. Cooper, sheriff, by Richard J. Waldron.”

On January 28, 1950, summons was returned and filed, endorsed: “Received this writ January 24,1950, at 3 o’clock p. m., and on January 26, 1950, I served the within named Bernice Cotner Willeke by personally handing to each of them a true and certified copy thereof, with all the endorsements thereon.” Signed, “Clarence F. Brown, Sheriff.”

On January 31, 1950, the plaintiffs filed their motion for leave to amend their petition.

On February 4, 1950, a praecipe was filed on behalf of the plaintiffs- for summons for Bernard J. Cotner as executor of the estate of Eva Blanche Woodruff, deceased.

On February 9, 1950, summons was returned, endorsed as follows: “Received this writ February 8, 1950, at 4 o’clock p. m., and on February 9, 1950, I served the herein named Bernard J. Cotner, individually, and Bernard J. Cotner, executor of the estate of Blanche Woodruff, by personally handing to him a true and certified copy thereof, with all endorsements thereon.”

On March 1, 1950, an amended motion for leave to amend the petition was filed on behalf of the plaintiffs.

On September 9, 1950, the motion of Bernard J. Cotner and Bernice Cotner Willeke for the dismissal of the plaintiffs’ petition and the cross-petitions of the defendants, was heard, and the court, upon said hearing, sustained the motion, dismissing plaintiffs’ petition and defendants ’ cross-petitions.

The judgment of the court sustaining the motion and dismissing plaintiffs’ petition and defendants’ cross-petitions is the judgment from which this appeal is taken by the defendants Maude Norviel, Cliff Woodruff, Arden Searson, guardian of Cora Searson, and by all the plaintiffs in the action.

The appellants assign error in a number of particulars which may be summarized as follows:

First. The judgment of the court sustaining the motion of the defendants Bernard J. Cotner and Bernice Cotner Willeke to dismiss, and dismissing the plaintiffs’ petition and the cross-petitions of the defendants Cliff Woodruff, Arden Searson, as guardian of Cora Searson, and Maude Norvill is contrary to law.

Second. That the court’s finding and judgment are against the weight of the evidence.

Third. The court erred in overruling plaintiffs’ motion to amend their petition by insertion of the words, “Executor of the Estate of Eva Blanche Wood-ruff, Deceased,” in the caption of the petition.

Fourth. Other errors apparent upon the face of the record.

These assigned errors will be considered in the order mentioned.

In the assignment that the judgment is contrary to law, the appellants make two contentions:

(a) That although Bernard J. Cotner was referred to in his individual capacity in the caption of the petition, and the praecipe for summons upon the petition and the summons for him and the return thereof referred to him in his individual capacity, the petition did not make him a party defendant in his individual capacity as a legatee-devisee of Blanche Woodruff, deceased, but only in his capacity as sole executor of her estate, and that such service of summons upon him constituted service of summons upon him in his fiduciary capacity as executor of said estate.

(b) That the defendant, Laena Maude Norvill, having within six months of the date of the probate of the last will and testament filed her answer and cross-petition making Bernard- J. Cotner, as sole executor of said estate, a party defendant thereto, and also having filed therein her praecipe for service of summons upon him in such capacity, the requirements of Sections 12087, 12080, 11230, General Code, as to the service of summons upon said executor in his fiduciary capacity, were fully complied with notwithstanding he was not served with summons in his fiduciary capacity until long after the expiration of six months from, the date of the probate of the last will and testament of Eva Blanche Woodruff.

The above contentions are to be considered in the light of the pertinent provisions of the following sections of the General Code of Ohio, to wit:

Section 12087. “An action to contest a will or codicil shall be brought within six months after it has been admitted to probate, but persons under any legal disability may bring such action within six months after such disability is removed * *

Section 12080. “All the devisees, legatees, and heirs of the testator, and other interested persons, including the executor or administrator, must be made parties to the action. ”

Section 10504-32. “If within six months' after a will is admitted to probate, no person interested files an action to contest the validity of the will, the probate shall be forever binding * * *.”

Section 11279. “A civil action must be commenced by filing in the office of the clerk of the proper court a petition, and causing a summons to be issued thereon.”

Section 11230. “An action shall be deemed to be commenced within the meaning of this chapter [Chapter relating to limitation on actions], as to each defendant, at the date of the summons which is served on bim or on a codefendant who is a joint contractor, or otherwise united in interest -with him: * * *”

Section 11231. “Within the meaning of this chapter [Chapter relating to limitation on actions], an attempt to commence an action shall be deemed to be equivalent to its commencement, when the party diligently endeavors to procure a service, if such attempt be followed by service within sixty days.”

In construing the provisions of Section 12087, General Code, the Supreme Court, in McVeigh v. Fetterman, 95 Ohio St., 292, 116 N. E., 518, held that this section, like the wrongful death section, states more than a mere limitation of action. The section provides a condition upon which the cause of action itself ceases to exist after the period mentioned in the statute.

In considering the application of Sections 12080 and 11230, above mentioned, to a will contest, the Supreme Court, in the case of Peters v. Moore, 154 Ohio St., 177, 93 N. E. (2d), 683, held:

“1. In Ohio the right to contest the validity of a will is statutory.

“2. The exercise of that right is subject to the conditions imposed by such statutes. (Paragraph one of the syllabus in the case of McVeigh v. Fetterman, 95 Ohio St., 292, and paragraph two of the syllabus in the case of Case v. Smith, Admx., 142 Ohio St., 95, approved and followed.)

“3. Under the provisions of Section 12080, General Code, all the devisees, legatees, and heirs of the testator, and other interested persons, including the executor or administrator, must be made parties to an action to contest a will.

“4. Under those provisions it is mandatory and jurisdictional that the executor be made a party to such action.

“5. In such an action the court is without jurisdiction unless the executor is made a party and a summons, duly followed by service, is issued within six months after the will has been admitted to probate. (Draher v. Walters, 130 Ohio St., 92, overruled as to that part of the syllabus relating to an executor; and paragraphs two and three of the syllabus in the case of McCord v. McCord, 104 Ohio St., 274, approved and followed.)

“6. It is not a compliance with this requirement when a person occupying the positions of heir, legatee and sole executor is made a party in his individual capacity as heir and legatee but not in his distinctive, official, fiduciary capacity as executor, and another person is sued as executor.”

Weygandt, C. J., who wrote the opinion in the case, in the course thereof, after setting forth the provisions of Section 12080, General Code, distinguished the facts therein from the facts in the case of Draher v. Walters, 130 Ohio St., 92, 196 N. E., 884, in the following language:

“In the Draher case there was a complete compliance with this mandatory jurisdictional provision. When the suit was instituted the executor was named as one of the defendants. To the petition was attached a praecipe requesting issuance and service of summons on all defendants. However, the clerk failed to issue a summons for the executor. This fact was not discovered by the plaintiff until the statutory period had elapsed. She immediately filed another praecipe for a summons, and service was had. ”

Although the facts in the instant case differ from the facts in the Draher casé, supra, in that the praecipe did not request that summons be issued for the executor, appellants’ first contention, above mentioned, is predicated mainly on the proposition that the above language has the effect of excluding the instant case from the operation of the holdings of the Supreme Court, above quoted, as the executor was named in the petition as one of the defendants in the instant action, although the praecipe filed with the petition did not request service upon him in his fiduciary capacity, and service of summons in his fiduciary ca-. pacity was not had upon him upon the petition pursuant to the praecipe filed therewith, but upon a praecipe for summons filed February 4, 1950, such summons being served February 9, 1950.

An examination of the decision in the case of Dra-her v. Walters, supra, discloses that it was based solely upon the theory that within the purview'of Section 12080, General Code, above set forth, service of summons upon one of the legatee-devisee defendants, in an action to contest the validity of a will, is to be deemed commencement of the action as to each of the defendants of that class, and also as to the executor, and wholly without regard to the fact that the executor had been named as party defendant to the petition, although not served with- summons thereon within the period of six months from the date of the probate of the contested will.

The theory upon which the decision in the case of Draher v. Walters, supra, was based, was expressly overruled in the case of Peters v. Moore, supra.

In this situation- we are forced to the conclusion that neither the decision in the case of Draher v. Walters, supra, nor the above quoted language in the opinion in the latter case mentioned constitutes a holding that the mere fact that the executor was named a party defendant in the petition, although not served with summons thereon within six months from the date of the probate of the contested will, would authorize the service of summons upon him in his fiduciary capacity after the expiration of said six-month period.

It is also obvious that in such a situation the service of summons upon an individual in his individual capacity, such individual happening- to be the executor of the estate, does not constitute service' upon him in his fiduciary capacity, and does not in any manner affect or bind the estate of which he happens to be the executor.

From the allegations of the petition it appears that it was the intention of the plaintiffs to make said Cot-ner a party defendant in his individual capacity as legatee-devisee, and also in his fiduciary capacity as executor.

Under the Code provisions and the decisions mentioned, it is clear that as summons was not issued for the executor upon the petition within six months of the date of the probate of the will, the action upon the petition was not commenced within the time limited by statute, and the first contention of appellants is without merit.

We will now consider the second contention in the first assignment.

That the provision of the Code as to when an action shall be deemed commenced applies to proceedings in error has been settled by repeated decisions, as well as that the summons which is served on a defendant in error must be issued before the expiration of the time fixed by the statute of limitation governing the cause of action. Robinson v. Orr, 16 Ohio St., 284; Baltimore & Ohio Rd. Co. v. Ambach, 55 Ohio St., 553, 45 N. E., 719; McLarren v. Myers, Admr., 87 Ohio St., 88 at 97, 100 N. E., 121.

In the latter case, in conformity with the above rule, it was held:

1. “The saving provision of Section 11231, General Code, relates to the service of a summons, and before the diligent endeavor therein. referred to can avail to avoid the bar of a statute of limitations, there must have been a summons issued prior to the expiration of the period fixed by the statute.

2. “The burden of causing a summons in error to be issued in an error proceeding is imposed by law on the plaintiff in error, and Section 12270, General Code, being a statute of limitations to be enforced as other similar statutes, the praecipe of plaintiff in error and his request to the clerk to issue summons will not stop the running of the statute or avoid the bar thereof if summons which is served on defendant in error is not issued prior to the expiration of the time fixed, unless facts are shown which bring the case within some saving provision of the law.”

In that case, the failure to have summons issued within the statutory period was attempted to be excused by the petitioner upon the ground that the clerk of courts had promised to issue summons within the statutory period but had failed to do so, a fact not appearing of record in the instant case, but the court held that the burden of causing the summons to be issued within the statutory period was upon the petitioner, and the failure to do so was not excused by petitioner’s reliance upon the promise of the clerk.

This decision has been followed in many cases, including the case of Zakrzewski v. Lenczycki, 129 Ohio St., 462, 195 N. E., 867.

In the case of Coughlin v. Passionist Monastery of the Holy Cross, 59 Ohio App., 433, 18 N. E. (2d), 496, an action to contest a will, such as the instant case, the court, basing its decision on the McLarren case, supra, held:

“An action to contest a will must, under Section 12087, General Code, be commenced within six months after probate of the will, and it is not sufficient that a petition to contest and praecipe for summons be filed within the time prescribed, but summons must also be issued within that time.”

From the above decisions it is clear that a summons upon the cross-petition of the defendant Norviel was not issued until after the expiration of six months from the date of the probate of the will. The action upon the cross-petition was not commenced within the time limited by statute.

Consequently, the second contention, above mentioned, is without merit, and both contentions being without merit, the judgment is not contrary to law.

The finding and judgment of' the court is fuily sustained by the record for review, the facts shown by the record not being controverted.

The record fails to show any ruling by the court upon plaintiffs’ motion to amend their petition, but if the court had overruled said motion its action in so doing would not have been erroneous as the motion was not made until long after the time in which an action against the executor could be commenced.

No error appears of record prejudicial to the appellants.

Finding no error in any of the particulars assigned and specified and argued in appellants’ brief, the judgment of the Common Pleas Court' is affirmed, at costs of appellants, and the cause is remanded for execution.

Judgment affirmed.

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


text:
    Mowery, Appellee, v. Ealey et al., Appellants.
    (No. 552
    Decided May 26, 1948.)

      Messrs. Miller, Searl S Fitch and Mr. Ormond S. Adams, for appellee.

      Messrs. Kimble, Kimble & Schápiro, for appellants.
   Metcalf, J.

This appeal, designated as an appeal on questions of law and fact, was presented and is retained in this court as an appeal on questions of law.

Plaintiff-appellee, • Charles 0. Mowery, brought an action in the Common Pleas Court of Scioto County praying that an order of adoption theretofore made in the Probate Court of that county whereby his daughter, Joyce Ann, was adopted by the defendant appellants, Cora Mae Ealey and Herschel Ealey, now husband and wife, be set aside and declared null and void.

The pertinent allegation in the petition is as follows :

“On the 23rd day of February, 1943, an entry was made in the Probate Court of Scioto County, Ohio, confirming the adoption of Joyce Ann Mowery by Herschel Ealey and Cora Mae Ealey and changing her name to Joyce Ann Ealey, and that at no time prior to the entry of said order approving said adoption was Charles O. Mowery given any notice of said hearing or given an opportunity to appear in court and object to said adoption, as provided by law.”

The defendants filed an answer setting forth that plaintiff and the defendant Cora Mae Ealey, formerly husband and wife, were divorced August 7, 1942; that the Common Pleas Court in the divorce proceeding placed the custody of the child with defendant Cora Mae Ealey, the mother; and that in the adoption proceeding, on application being made, the Common Pleas Court approved an answer and consent as provided by law. The answer admits that no notice of the hearing on the adoption was given to the plaintiff, the father of the child.

A trial was had on the issue as thus joined, the trial court found that the adoption proceeding was void and, thereupon, vacated and set aside the same.

There are several assignments of error (not separately stated or numbered) found throughout the brief of appellant, such as the insufficiency of the petition and the claimed lack of jurisdiction of the Common Plea's Court. However, there is only one question presented for determination and that is: Was Joyce Ann Mowery legally adopted by Cora Mae Ealey and Herschel Ealey?

Briefly, it was the claim of the plaintiff in the court below, and by argument and brief it is claimed by his counsel here, that since the petition for'adoption failed to set forth plaintiff’s name as the father of the child and his address, which defendants well knew, such omissions, together with his failure to receive notice of such proceeding and his failure to give consent, nullify the adoption. This contention has been definitely answered by the courts of Ohio.

The statute applicable in 1943 was Section 10512-11 (2) (d), General Code (114 Ohio Laws, 472), which provided:

“In any adoption proceedings written consents must be given to such adoption as follows:

<('***

(2) By each of the living parents * * * except as follows:

( 6 # # =*

“(d) By the parent awarded custody of child by divorce decree, provided the court which granted such decree approves of such consent and because of such approval the jurisdiction of such court over such child shall thereupon cease.”

In Martin v. Fisher, 25 Ohio App., 372, 158 N. E., 287, in a situation very similar to that involved in the instant case and under a statute with a provision identical with the one above quoted, it was held, as disclosed by the second paragraph of the syllabus, that “the custody of the minor having been awarded in the divorce proceedings to her mother, the consent of her father to her adoption was not necessary.”

The Supreme Court of Ohio has passed upon this question in the case of State, ex rel. Booth, Judge. v. Robinson (1929), 120 Ohio St., 91, 165 N. E., 574, wherein it was held that notice to and consent of a father in such a' case are not necessary or required. The first paragraph of the syllabus reads:

“1. Where in a proceeding for the adoption of a child of divorced parents the consent of the parent to whom the sole custody of such child had been awarded is duly given and the court which granted such decree approves the same as provided by Section 8025, General Code, the consent of the other parent is not required.”

It is to be noted that the provisions of Section 8025, General Code, were in exactly the same language as quoted in Section 10512-11 above.

A reading of the Robinson case, supra, discloses that the mother of the child adopted was not made a party to the proceeding for adoption or to the proceeding wherein the consent thereto of the Common Pleas Court was obtained, nor was she notified thereof.

While plaintiff insists that the failure to allege he was the father of the child sought to be adopted is a fraud upon the court, no such inference can be drawn from the record. The most that can be said for this omission is that he was not made a party to the proceeding and this the Supreme Court in the Robinson case held was unnecessary. There could be no fraud practiced upon the Probate Court when that court had before it the consent and approval of the Common Pleas Court which had placed the custody of the child with the mother. The Probate Court certainly knew then that the natural father existed.

The Supreme Court in the Robinson case, supra, in •upholding the constitutionality of this provision of the statute authorizing consent to be given by the Common Pleas Court, said, on page 95:

“ * * * While the rights of the natural parents should always have full consideration, and be carefully guarded and protected, the rights and interest of the child are paramount, and, where there is a conflict between the rights of the parent and the interest of the child, the state may act by and through appropriate legislation.”

And, on page 96, the court said: “Practically all the states have statutes providing for the adoption of children, and in many of them the required consent is limited to the parent to whom a court of competent jurisdiction, has in some divorce or other proceeding, awarded the custody of such child. Our statute provides that the consent of the parent to whom custody has been awarded in a divorce proceeding is sufficient, if the court which entered the decree approves the same.”

The Robinson case was followed by the Court, of Appeals for the Fifth Appellate District in Byrd v. Byrd, 78 Ohio App., 73, 69 N. E. (2d), 75, a case in point with the instant case. It was held, as disclosed by the third paragraph of the syllabus:

“In a proceeding to adopt a child of divorced parents, notice to and consent by the father were not required, by virtue of Section 10512-11 (2) (d), General Code (114 Ohio Laws, 472), where the exclusive custody of the child had been awarded to the mother. ’ ’

In the Byrd case the court called attention to the amendment qf the statute. effective January 1, 1944, whereby the provision was eliminated under which, not only the instant case is governed, but the other cases hereinabove cited were controlled.

It is a familiar rule that a presumption of law arises from a decree of adoption that all the provisions of law relating thereto have been legally complied with and that this presumption subsists until overcome by proof to the contrary. See Martin v. Fisher, supra, and 1 Ohio Jurisprudence, 437, Section 7.

There is no dispute in regard to any of the facts in the instant case. The law is clear that neither notice to nor consent of the plaintiff was necessary in the adoption proceedings. Neither was the plaintiff a necessary party in that proceeding and the omission of his name from the petition could not, under the circumstances hereinabove related, have been misleading to or a fraud upon the court. It is, therefore, the conclusion of this court that under the law as it existed at the time of the adoption, the adoption proceeding was valid in all respects.

It follows that the judgment must be reversed and, there being no dispute of facts, the question being one of law only, this court renders the judgment that should have been rendered in the'court below by dis-' missing plaintiff’s petition and granting judgment for the defendants.

Judgment reversed.

Gillen, P. J., and McCurdy, J., concur.


author: Griffith, J.

text:
    The State, ex rel. Saltsman, v. Burton et al., Mahoning County Board of Education.

      (No. 3445
    Decided October 16, 1951.)

      Mr. Clyde W. Osbo'rne, Sr., for relator.

      Mr. William A. Ambrose, prosecuting attorney, and Mr. Harold H. Hull, for respondents.
   Griffith, J.

The relator, Edward Saltsman, holds a teacher’s life certificate. He has been under contract with the Board of Education of Mahoning County as county superintendent of schools since November 1, 1945, by virtue of two separate contracts; one for the period from November 1, 1945, to August 1, 1948, arid the second for a two-year period from August 1, 1948, to August 1, 1950. Prior to this, he had held a permanent certificate entitling him to serve as a county, city or exempted village superintendent of schools or teacher in the schools of Ohio. He had been superintendent of schools for Carroll county from August 1,1938, until he came to Mahoning county.

On March 8, 1950, the board determined to not rehire him. He challenged the board’s action, claiming that he had a continuing contract by virtue of the Teachers’ Tenure Act. (Section 4842 et seq., General Code.) On November 22, 1950, the Supreme Court of Ohio held that the county board had the power to terminate the services of the county superintendent of schools in such position at the completion of his term on August 1, 1950, as hired, despite the existence of a continuing contract. See State, ex rel. Saltsman, v. Burton, 154 Ohio St., 262, 95 N. E. (2d), 377.

The relator now contends that he still retains the right, under his certificate and employment by the county board, to a continuing form of teacher’s contract. By agreement of the parties, it is shown that there was a position described as “Elementary Supervisor” in the county school system; that Dorothy Harding had held this position until 1948, when she resigned; and that the position has been vacant, since that time.

Section 4842-9, General Code, reads, in part, as follows:

<<* * # A teacher employed as superintendent may be transferred to another position by a majority vote of the board of education. In no event shall the salary of any teacher so transferred be fixed at a rate lower than the highest paid in the district for the type of position to other teachers with similar training and experience.”

The terms, “teacher” and “superintendent,” are not interchangeable. The positions of county superintendent of schools and county elementary supervisor are administrative positions. Neither is a teaching position. It was the intent of the Legislature that the term, “teacher,”'should mean classroom teacher.

Teachers are not to be confused with administrative officers, the former being employed by local'boards of education as distinguished from county boards of education, which latter are without authority to employ teachers.

Section 4842, General Code, provides in part:

“Such superintendent shall he the executive officer for the board of education, direct and assign teachers and other employees of the schools under his supervision * * * to the proper schools and grades * *

The authority of county boards of education is limited to the employing of executive or administrative officers, superintendents, assistant superintendents, elementary supervisors, etc., and they may hire such employees even though they do not hold certificates to teach as provided by Section 4857-1, General Code.

The relator is seeking a writ of mandamus to require the county board of education to enter into a continuing contract with him for the position of elementary supervisor in the Mahoning county school system. This requires him to show that he has a clear legal right to that position and squarely raises the question whether, under the .law of Ohio, the county board is compelled to give the. relator a continuing contract as elementary supervisor of county schools.

The respondents, or their predecessors in office, created the position of elementary supervisor which was occupied for a period of time but has been vacant since 1948. Is there a mandatory duty on the part of the respondents to fill this vacancy? May the board permit this position to remain vacant indefinitely?

The relator claims that it is the duty and responsibility of the board to fill the vacancy, and that he is well qualified for and entitled to the position. To hold that a county board of education having once established the position of elementary supervisor must at all times continue to have that position filled, regardless of the needs or circumstances of the case, would be neither sound nor just. This position has been vacant for a period of at least two years under the relator ’s tenure as county superintendent, and the board did not see fit to fill it during that period of time or at any time since.

In the case of the State, ex rel. Frank, v. Meigs County Bd. of Edn., 140 Ohio St., 381, 44 N. E. (2d), 455, the court said:

“To hold that a county board of education, having once established a position in the county public schools, has no power under the law to abolish it. even though there is a sufficient cause, would, in the opinion of the court, seriously challenge the constitutionality of the law itself.”

Permitting a vacancy to continue is an included power of abolishing the office. If the board has power to abolish, it has power to permit the position to remain vacant. The matter of filling that position is a discretionary function of the board. It is not incumbent upon the board to declare the position vacant in order to release the board from the obligation of filling the vacancy. From the fact that the board did create the position of elementary supervisor, it does not follow that the board must keep the position filled.

There is nothing in the Teachers’ Tenure Act that would require the board to fill this vacancy in order to provide a position for the relator. That act is a civil service law to protect teachers who are qualified in the teaching profession. It was not enacted for the protection of executive or administrative officials in the school system.

The relator is seeking a writ of mandamus to require the board of education to enter into a continuing contract with him for a special position in the school system and to this application a demurrer was filed.

“Mandamus is a writ commanding a public board or official to perform an act which the law specially enjoins as a duty resulting from an office, trust or station, and will issue only when it is clearly shown that there is a plain dereliction of such duty. ’ ’ State, ex rel. Van Harlingen, v. Board of Education, 104 Ohio St., 360, 136 N. E., 396.

Can it be said that the respondents are guilty of a dereliction of duty in failing to fill this vacancy? We 'know of no authority, statutory or otherwise, requiring them to fill such vacancy.

The relator, during the years 1948, 1949, and most of 1950, was the superintendent of such system, and for aught the record shows he functioned very well, as did also .the system, with this vacancy existing. The mere fact that the board failed to formally abolish the office is of no concern. The board had full authority to permit such vacancy to continue.. It alone could hire and appoint, and .it did not see fit to fill the vacancy created by the resignation of Dorothy Harding in 1948.

We do not believe it was necessary for the county board to repeal the motion or resolution creating this office of elementary supervisor. It was not necessary for the board formally to abolish such position. Apparently, it did not, in its discretion, desire to do so. It is possible that sometime the board may wish to make use of this office again, but it is not incumbent upon the board to.repeal the action the board had heretofore taken or keep the office filled at all times. '

The relator has failed to state facts showing there is a plain dereliction of duty by the board, or that he has a plain legal right to the position. The demurrer to the petition must therefore be and is sustained, and, the relator not desiring to plead further, the writ is denied.

Writ denied.

Nichols, P. J., and Phillips, J., concur.