author: Matthews, J.

text:
    Cohen, Appellant, v. Cohen et al., Appellees.

      (No. 7448
    Decided June 18, 1951.)
    Mr. Benjamin S. Schwartz, for appellant.

      Messrs. Gorman, Silverstein do Davis, for appellees.
   Matthews, J.

On June 14, 1925, Joseph Cohen and Lena Wolfson, each previously married and each having five living children, entered into an antenuptial agreement and shortly thereafter were married. In accordance with the terms of such agreement, Joseph Cohen purchased a residence property on Carplin Place in the city of Cincinnati and transferred an undivided one-half interest therein to his wife, Lena Wolfson Cohen. Joseph and Lena Wolfson Cohen moved into the residence in 1926 and continued to occupy it as their home until the death of Joseph on August 7, 1941. On the same day that the antenuptial agreement was entered into, Joseph Cohen executed a will in which he named his children as beneficiaries of his estate, share and share alike.

After Joseph Cohen’s death, a dispute arose between Lena Wolfson Cohen and the children of Joseph Cohen as to the validity of the antenuptial agreement and, if valid, its efficacy to. exclude Lena Wolfson Cohen from receiving that portion of the decedent’s estate, which, under Section 10509-54, General Code, is not deemed assets of the estate in favor of the surviving spouse. Litigation resulted. The validity of the antenuptial agreement was sustained, and in Cohen et al., Exrs., v. Cohen, 82 Ohio App., 260, 80 N. E. (2d), 813, decided on December 15, 1947, it was held that it was a bar to the widow’s claim of assets under Section 10509-54, General Code.

In the meantime, an action ,to partition the residence premises was dismissed.

After Joseph Cohen’s death, his widow continued to reside in the Carplin Place home in the same manner as she and her husband had during his lifetime. No part of the premises was rented and there is no evidence of the receipt of any income or profit from the premises, except four dollars per month as rent for a garage for an undetermined period. It is admitted that none of Joseph Cohen’s children ever occupied any part of the premises after his death. It is also admitted that no demand was ever made upon the widow to allow the children to occupy the premises or any part thereof. The widow at no time denied them access to the premises. However, it is clear that joint occupancy would not have been congenial.

There was no dispute as to defendants’ title to an undivided one-half. The result of the litigation involving the antenuptial agreement might have affected the plaintiff’s title, but that furnished no reason for the defendants not asserting their rights to the other undivided one-half of the Carplin Place property.

On February 10, 1948, the defendants notified the plaintiff that they intended to hold her liable for her share of taxes, rent, waste, and insurance.

During all these years one of Joseph Cohen’s sons had paid the taxes and the premiums on the insurance on the premises.

This action for partition was filed by Lena Cohen. A consent decree for partition was entered and the plaintiff became the purchaser at a public sale.

The defendants, the children of Joseph Cohen, by amended cross-petition alleged their ownership of an undivided one-tenth each; that the plaintiff had occupied the premises since her husband’s death to the exclusion of the defendants and had refused to vacate; that defendants had notified her that rent would be charged; that the reasonable rental value was $60 per month; that they had paid the taxes and insurance premiums; and that waste had been committed. They prayed for judgment for $5,426.39.

At the trial, the Common Pleas Court found in favor of the defendants as to the taxes and, insurance in the sum of $556.93, and on their claim of one-half of the rental value from August 7, 1942, to January 12, 1950, of $50 per month, totaling $2,225. The court found against the defendants on their claim of waste. Judgment was entered in favor of the defendants for $2,781.93.

This appeal is from that judgment. The notice of appeal recited that it was on questions of law and fact, but as the chancery element of the ease was disposed of by the conclusion of the partition proceedings, and the judgment appealed from being for ■money only on a cross-petition that prayed for no other relief, the appeal must be limited to a review on questions of law only. Gantz v. Village of Louisville, 155 Ohio St., 425. The appeal will be so limited. .However, as the action was presented on the record made in the trial court, we shall consider the case as though here on questions of law only, and give leave to have the bill of exceptions approved and filed within thirty days after this decision.

The foregoing recital sets forth the record made in the Common Pleas Court and it is on that record, by the agreement of the parties, that the case is presented to this court.

No contention is made that the defendants are not entitled to recover one-half of the taxes and insurance premiums paid by them. The only issue presented is whether, under the circumstances, they are entitied to recover anything from the plaintiff because she chose to exercise her right of occupancy as a cotenant and they did not. The defendants’ claim is based entirely upon compensation for that sort of possession to which any tenant in common has a right, and which is not adverse to the equal rights of the other cotenants and would never bar their title, no matter how long continued.

The defendants assert that they are entitled to relief under the provisions of Section 12046, General Code, which provides as follows:

“One tenant in common, or coparcener, may recover from another his share of rents and profits received by such tenant in common or coparcener from the estate, according to the, justice and equity of the case. ’ ’

The plain meaning of this section is that it refers to the receipt of rents and profits from the joint estate in which others are entitled to share. It would seem that if a cotenant has received nothing to which he is not entitled, then he is under no obligation to his co-tenant. It seems clear that the word, “profits,” in Section 12046, General Code, was not intended to refer to any enhancement in the value of the common property. It necessarily refers to something other than the corpus or capital. It must refer 'to income, because there can be no profits unless there is income, and profits means the excess of receipts over expenditures, that is, net income.

. In the case of Eisner, Collector of Internal Revenue, v. Macomber, 252 U. S., 189, 64 L. Ed., 521, 40 S. Ct., 189, 9 A. L. R., 1570, the Supreme Court was called upon to construe the 16th Amendment to the United States Constitution, which authorized Congress to levy, without apportionment, taxes upon “incomes from whatever source derived,” and at page 207 said on this subject:

“Brief as it is, it indicates the characteristic and distinguishing attribute of income essential for a correct solution of the present controversy. The government, although basing its argument upon the definition as quoted, placed chief emphasis upon the word ‘gain,’ which was extended to include a variety of meanings; while the significance of the next three words was either overlooked or misconceived, ‘Derived — from—capital ’; —‘ the gain — derived—from— capital, ’ etc. Here we have the essential matter:. not a gain accruing to capital, not a growth or increment of value in the investment; but a gain, a profit, something of exchangeable value proceeding from the property, severed from the capital however invested or employed, and coming in, being ‘derived,’ that is, received or drawn by the recipiént (the taxpayer) for his separate use, benefit and disposal; — that is income derived from property. Nothing else answers the description.

“The same fundamental conception is clearly set forth in the 16th Amendment — ‘incomes, from whatever source derived,’ — the essential thought being expressed with a conciseness and • lucidity entirely in harmony with the form and style of the Constitution.”

Did the plaintiff by the mere fact of remaining in possession of these premises and by holding them as a cotenant receive something to which she was not entitled? Did she deprive the defendants of something by that holding? The answers depend on the rights of cotenants in the common property. What are these rights?

As to these rights, it is said in 14 American Jurisprudence, 93, Section 23:

“It is a rule of general application that any co-owner of real property has a right to enter upon the common estate and take possession of the whole thereof, subject only to the equal right of his companions in interest with whose possession he may not interfere.” And, on the following page, we find that “it is a universal principle that the possession of one co-tenant is the possession of all.”

At common law the cotenant in possession was not obliged to account to the cotenants out of possession “unless his acts amounted to an ouster, or unless he had agreed to become a bailiff for them.” 14 American Jurisprudence, 99, Section 31. It was to correct that rule that the Act of 4 Anne. Ch., 16, was enacted. While this statute, as construed by the English courts, required the tenant in possession to account for money received from third persons for the use of the common property, it did not require him to account for profits ■from operations thereon, or for the value of its use .and occupation. 14 American Jurisprudence, 100, Section 33. It is said that a decided majority of the .American courts concur in this construction of the Act of Anne and American statutes patterned after it, but that a substantial minority hold' that the construction is too narrow, and that the occupying tenant is required to account to the nonoccupying tenant not only for rent collected, but also for profits derived from his operations on the common property. This ■dissent from the minority relates in most cases only to the holding that the occupying tenant is not bound -to account to his cotenant for profits derived from operations conducted by him on the common property. In most cases wherein this view was expressed, more than mere occupancy was proven against the tenant iu possession. And in some such cases the statute under construction was couched in different language.

In the case of Hayden, Admr., v. Merrill, 44 Vt., 336, 8 Am. Rep., 372, which was approved by our Supreme Court in West v. Weyer, 46 Ohio St., 66, 18 N. E., 537, the facts were that the plaintiff and defendant bought one hundred acres of land adjoining a hotel owned and operated by the defendant, and at the time of the purchase it was understood that the defendant would appropriate a part as a racecourse for horses — for training, driving, and trotting horses — thereby increasing the patronage of his hotel. From the finding of the auditor it was implied that the plaintiff was to participate in the profits derived from the use of the land of which she was co-owner. The defendant laid out the racecourse and derived great profit from entrance fees as well as hotel patronage. However, defendant kept no record of the resulting income and the auditor found that he had no means of determining what that profit was, but that had the defendant not appropriated the land for a racecourse it would have produced a net income of 6 per cent on the investment. Judgment was rendered for the plaintiff on that basis. It can be seen from this statement that the defendant’s liability was not the result of occupancy alone. Profit was derived from third persons. The income which could have been derived from the premises had not the defendant appropriated it was resorted to as the measure of damage only because the defendant had kept no accounts, and for that reason the auditor was unable, through defendant’s fault, to state an account. It was not awarded for use and occupation, but as a measure of the profits that the defendant had made by his operation of the racecourse.

This substituted measure of damage was also resorted to in Cain v. Cain, 53 S. C., 350 (another case placed in the minority group), and on this subject, at page 352, the court said:

“The evidence as to the rental value of the premises occupied and cultivated, was admitted and considered merely as tending to establish the value of the rents and profits received, in the absence of any definite showing by the administratrix as to the actual receipts. Under such circumstances, the evidence was admissible. If the occupying tenant wishes to limit his accountability to rents and profits actually received, it is his privilege to show what he has received; but if he is unwilling or unable to make such showing, it is competent to show by speculative testimony what he has probably received. Under ordinary conditions, it is probable that a fair rental value of premises will closely approximate the value of rents received in' case of a lease to third persons, or the value of the net profits received in case the occupying tenant cultivates the land himself and takes and appropriates the products thereof.”

It is true that in Hayden, Admr., v. Merrill, 44 Vt., 336, 80 Am. Rep., 322, the court analyzed many cases and reached the conclusion that the liability of the occupying tenant was not limited to rent actually received from third persons, but it is also true that the court gave many illustrations of instances in which the occupant would not be liable to the out-tenant and at page 348 said :

“The fact that in some eases it would not be just to hold the tenant occupying without contract to account to his cotenant, is no reason why he should not be liable in any case. There is no danger of injustice from such liability where the statute makes the tenant liable only ‘for receiving more than his just proportion, ’ which is to be determined by the facts in each particular case.”

There are many cases involving this question. It would serve no purpose to consider every case which to a certain extent sheds light on the subject. The particular circumstances governed in most, if not all, the cases.

Appellees’ counsel rely on West v. Weyer, supra, Hodapp v. Hodapp, 34 Ohio Law Abs., 305, 37 N. E. (2d), 101, and Warner v. Matthews, 79 Ohio App., 111, 69 N. E. (2d), 59, to support the construction of Section 12046, General Code, given-by the trial court. Let us examine those cases.

In West v. Weyer, the plaintiff and defendant were tenants in common of a farm containing 146 acres. The defendant owned 400 acres adjoining this farm on three sides. No fence separated these farms. The defendant pastured and fed about 100 head of cattle on the 146 acres of which he was a tenant in common. The action was for partition and for an accounting of the rents and profits. The trial court made findings of fact and conclusions of law. The court .found that the fair rental value was $150 per year, and judgment was rendered for the plaintiff on that- basis. There was no attempt by the defendant to render an accounting and, of course, no attempt to show that his profit from pasturing was less than the fair rental value of the land. Certainly, the burden rested upon him to do this' and upon his failure the court was justified in taking the fair rental value of the land as the measure of his profit.

The facts in West v. Weyer exclude the idea that the Supreme Court intended to decide that mere occupancy of the common property by one^ cotenant renders Mm liable to tbe out-tenant for use and occupation. The tenant in possession in that case actually received a profit. Both in the syllabus and in the opinion that fact is set forth.

The case of Hayden v. Merrill, supra, upon wMch the court relied was not a case of mere occupancy by one tenant. The tenant in possession in that case carried on a substantial business on the common property. Both West v. Weyer and Hayden v. Merrill were decided on the particular facts of the respective eases in accordance with justice and equity, and not upon any undeviating rule of liability of an occupying tenant. The court in West v. Weyer, supra, said at page 71: “ Then we are not at liberty to conclude or say that the words, ‘ according to the justice and equity of the case,’ were added without a purpose.” And, at page 73, “His [defendant’s] possession of the common estate was rightful.” That being so, how can we conclude that the court meant to say that rightful possession alone would create a liability?

In Hodapp v. Hodapp, 34 Ohio Law Abs., 305, the court found for the defendant, who was the occupying tenant. There were many reasons for so doing. The most that can be said about the Hodapp case in favor of the out-tenant is that the court said it “would be disposed to hold with the contention of the plaintiffs upon the authority of West v. Weyer, 46 Ohio St., 66, and Section 12046, G. C.” (Emphasis added.)

While Warner v. Matthews, supra, was an action by out-tenants against a cotenant in • possession to recover under the provisions of Section 12046, General Code, the only issue discussed was whether the Municipal Court, exercising the jurisdiction of a justice of the peace, had jurisdiction of such cause-of action under the circumstances. There was no bill of exceptions and, therefore, the court was called upon to decide whether the plaintiff had stated a cause of action within the jurisdiction of the court. The court cited and quoted from Conrad v. Conrad, 38 Ohio St., 467: West v. Weyer, supra; and Black, Recr., v. Boyd, 50 Ohio St., 46, 33 N. E., 207, in reaching a conclusion as to the nature of the cause of action under Section 12046, General Code, which requires the award to be “according to the justice and equity of the case.”' The court reached the conclusion that Section 12046, General Code, did not restrict the action to one in equity, and that the Municipal Court had jurisdiction of the cause of action stated in the pleadings. Later decisions make it abundantly clear that the court was right in so holding. 1 Ohio Jurisprudence, 201 et seq.; La Bounty v. Brumback, 126 Ohio St., 96, 184 N. E., 5.

Warner v. Matthews, supra, clearly sheds no light on the issue presented in this case.

A review of all the authorities leads us to the conclusion that mere proof of occupancy, without more, is insufficient to create a liability on the part of the tenant in possession in favor of a cotenant out of possession. If any liability arises, it is the result of attendant circumstances, and the burden of proving the existence,of such circumstances rests upon the tenant seeking to fasten liability upon his eotenant.

In the case at bar, the plaintiff was sharing possession of these premises as a cotenant with her husband at the time the defendants acquired their title upon her husband's death. She continued to occupy the premises after his death without any attempt by defendants to share such possession with her, without any refusal on her part to let them do so, and without any notice to her that they expected her to pay rent from August 7, 1941, to February 10, 1948, on which latter date they notified her that they expected her to pay rent from August 7, 1941. There is no evidence that the plaintiff required the entire premises for her personal use or that she actually occupied the entire premises. During her husband’s lifetime and at his death, the plaintiff’s son was living with them as a member of the family and after the husband’s death the son continued to live at the home for about two years. Another son visited his mother and on one occasion stayed for two days. The only suggestion that she received any rent or profit was her own testimony that a garage on the premises had been rented part of the time at four dollars per month. Those are the circumstances attending the plaintiff’s continuance in occupation of these premises after her husband’s death.

Do these circumstances show that the plaintiff has received either rents or profits which, according to justice and equity, she should share with the defendants? If so, to what extent?

It seems clear to us that the plaintiff’s possession from August 7, 1941, to February 10, 1948, was no more than the possession to which any cotenant is entitled by virtue of his or her title, and that this possession was unaccompanied by any circumstances creating a liability in favor of the other cotenants. It would not be just or equitable to impose upon her a charge for use and occupation based on occupation only.

Did the demand made on February 10, 1948, change this situation? It will be noted that this demand was not that the defendants be permitted to share the possession with the plaintiff. The demand was, in effect, that the plaintiff pay them for the exercise of the possessory right inherent in her title as a co-owner.

We are of the opinion that one co-owner cannot charge the other co-owners for the exercise of that right.

We come now to the question of the rent of the garage. The evidence is vague, but the plaintiff testified that she did rent the garage part of the time and that she received four dollars per month from the tenant while it was rented. The burden of accounting for rent received was on the plaintiff and she failed to do so. Section 12046, General Code, imposed upon her the duty to account for all rents received in accordance with justice and equity. It seems to us that justice and equity require that upon her failure to sustain ' the burden of accounting for rent received she be charged the reasonable rental value of the garage for the entire period. She has fixed the reasonable rental value at four dollars per month, to which the defendants are entitled to one-half.

We, therefore, charge the plaintiff with rent received from the garage at the rate of four dollars per month, beginning six years prior to the commencement of this action and ending on the date of sale of the premises, of which defendants will receive two dollars per month.

We understand that the alleged error relating to the insurance premiums paid by defendants and charged against the plaintiff has been waived.

For these reasons, after an appeal on questions of law only and the bill of exceptions is duly allowed and filed, the judgment of the Common Pleas Court will be modified by reducing the item for rent in accordance with this opinion and, as modified, will be affirmed.

Judgment accordingly,

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


source: Caselaw Access Project

author: Carpenter, J.

license: Public Domain

text:
    Skapura et al., Appellees, v. The Cleveland Electric Illuminating Co., Appellant.
    (No. 22137
    Decided April 2, 1951.)

      Messrs. Sindell & Sindell and Messrs. Hyre $ Stevens, for appellees.

      Messrs. Squire, Sanders & Dempsey and Mr. L. L. Towell, for appellant.
   Carpenter, J.

In this action the plaintiff Jane Skapura and her insurer recovered a judgment in the Municipal Court of Clevelarfd against the defendant, The Cleveland Electric Illuminating Company, for damages to her automobile sustained when an automobile owned by the defendant and driven by one of its employees collided with plaintiff’s car while it was stopped at an intersection and waiting for a green light.

From that judgment, the defendant took this appeal on questions of law.'

At the close of all the evidence, the defendant moved for a directed verdict and judgment. That motion was overruled, as wás one for judgment notwithstanding the verdict. The overrulings of these motions are assigned as errors.

The material facts are undisputed, and as was said in Bauman v. Sincavich, 137 Ohio St., 21, 27 N. E. (2d), 772, “the principle of law here involved is well settled and is not disputed by counsel.”

The question there was the same as here and is stated:

‘ ‘ Specifically, is there evidence tending to prove that at the time of the collision the driver of the defendant’s delivery truck [here automobile] was acting within the scope of his employment?”

That was the only fact question on liability submitted to the jury. The answer to that question will have to be foimd in an extended set of facts as shown by the evidence.

The defendant is a public utility which generates and distributes electricity in the metropolitan area of Cleveland. The meters of its customers, of which there are approximately 372,000 in that area, are read every month. To do this, it employs 63 meter readers. The area is divided into 1,047 separately numbered areas or reading routes for each of which there is a book. Included in each book is .a street map of the area and the addresses of all the meters in it.

At the company office each day there is prepared a schedule covering the work for the next meter-reading day, of which there are 21 in a month. That schedule is posted and indicates the number of the reading route assigned to each reader for that day. For the outlying areas and those where meters are so far apart that it is not feasible for the reader to walk, five auto-, mobiles (coupes) are maintained by the company.

The defendant has definite rules and a plan of procedure for its readers to follow. Pursuant to these rules, each morning when meters are to be read, the readers assemble at the office and the posted schedule tells each one the area assigned to him. He then gets his book for that area and, unless it is a remote area to which an automobile has been assigned or one nearby a remote one, the reader of which is assigned to ride with the one assigned to drive an automobile, they proceed at once by the most direct public transportation to their respective areas. (For the expense of transportation, they are reimbursed by the company.)

The five assigned to drive automobiles and the five to ride with them are taken to the company garage, where each driver gets the automobile assigned to hint, and they proceed by the most direct route to their respective areas.

On the morning of the collision, .April 28,1949, reader Arthur Schieman was assigned to an area in the village of Eastlake, east of Cleveland, in Lake county, and to which an automobile was assigned. Another' reader, Erdman, was assigned to ride with him. The Eastlake area was just off from Lake Shore boulevard, a direct- highway from near the garage to the area.

Instead of following that direct route, Schieman digressed from it to East 12th street and Euclid avenue, where he picked up two other readers, and then out the Lake Shore boulevard to a restaurant at East 185th street, where they stopped for breakfast and picked np a fifth reader and went south on 185th to Euclid avenue, over two miles, to the area of one of the five, then east on Euclid avenue to East 222nd street, the area of another, and north on that street to St. Clair avenue where the third man was left, then on north to Tracy avenue where the collision occurred, which was some distance south of Lake Shore boulevard, his direct route to his assigned area and that of the reader who was assigned to ride with him.

That the collision and resulting damage were' caused by the negligence of Schieman is not disputed. lie testified that he knew the company rules and that he was supposed to travel by the boulevard and not to carry any one other than the reader assigned to ride with him. A few days later, for this violation of rules, he was discharged from company service.

In 1913, when the automobile was a new vehicle on our highways, the Supreme Court, in the first paragraph of the syllabus of White Oak Coal Co. v. Rivoux, Admr., 88 Ohio St., 18, 102 N. E., 302, 46 L. R. A. (N. S.), 1091, laid down the general principle that has-ruled cases like this, as follows:

“The owner of an automobile is not liable in an action for damages for injuries to or death of a third person -caused by the negligence of an employee in the operation of the automobile, unless it is proven that the employee, at the time, was engaged upon his employer’s business, and acting within the scope of his employment. ’ ’

In Bauman v. Sincavich, supra, an employee on a delivery route for the employer digressed to accommodate friends without the consent of the employer. As-in this case, the trial court submitted the employment-question, and a- verdict for plaintiff was returned. That judgment was reversed and final judgment was entered for defendant. In that case it was urged that some remote benefit resulted to the employer by the digression to accommodate the friends of the employee.

So in the case at bar, it is now contended that.it was not a digression in that Schieman’s area could be reached by going out Euclid avenue. Whether it could or not is immaterial; he did not stay on that street. When the accident happened he was returning to the prescribed route, the boulevard.

The main contention of plaintiff is that the digression was in furtherance of the defendant’s business in transporting three of its readers to their reading routes. The evidence does not show how it benefited the employer, either by saving time for its employees or money for their transportation. The inference seems obvious that it was for the accommodation of the friends of Schieman, and perhaps for some social pleasures that were theirs in having breakfast together and the ride.

It is not contended that the conduct of Schieman was not in violation of company rules. With a business as large and intricate as that of the defendant, even in the process of the reading of meters by 63 readers, it is obvious that reasonable rules are necessary.

Employee Schieman, at the time and place of the collision, was not “operating the automobile on the defendant’s business, and was not acting within the scope of his employment. ’ ’

For these reasons, the motion for a directed verdict made at the close of the evidence should have been granted; and, that not having been done, the motion for judgment notwithstanding the verdict should have been sustained. For these errors, the judgment is reversed and final judgment entered for the defendant.

Judgment reversed.

Fess and Conn, JJ., concur.

Conn, Carpenter and Fess, JJ., of the Sixth Appellate District, sitting by designation in the Eighth Appellate District.


author: Fess, J.

text:
    The State, ex rel. Cleveland Concession Co., Appellee, v. City of Clevland et al., Appellants.
    (No. 22026
    Decided August 29, 1951.)

      Mr. Morton M. Stotter and Messrs. Spieth, Spring & Bell, for appellee. . .

      Mr. Lee C. Tiowley, director of law, Mr. Joseph F. Smith and Mr. Parker Fulton, for appellants.
   Fess, J.

Upon separate appeals on questions of law by respondents and relator, the judgment of the Court of Common Pleas was affirmed in part and reversed in part and final judgment awarded respondents. Incident to settling the journal entry, relator filed objections to the entry submitted by respondents upon the ground, among others, that the proposed entry fails to state the grounds of reversal as required by Section 12223-39, General Code. Relator also requests the court to specify in writing the grounds of reversal under Section 12223-39, General Code.

Section 12223-21, General Code, provides in part that all errors assigned shall be passed upon by the court, and in every case where a judgment or order is reversed and remanded for a new trial or hearing, in the mandate to the court below the reviewing court shall state the error or errors found in the record upon which the judgment of reversal is founded.

In the instant case final judgment was entered for the respondents and the cause was not remanded to the court below for a new trial. Upon a strict construction of the section, this court is not bound to state the grounds for reversal.

Section 12223-38, General Code, provides that when a judgment or final order is reversed, in whole or in part, the reviewing court shall render such judgment as the court below should have rendered, or remand the cause to that court for such judgment.

Section 12223-39, General Code, provides that the Court of Appeals or Common Pleas Court so reversing a judgment, upon the request of either party, shall specify in writing the ground or grounds of reversal, which shall be filed and kept with the papers in the case.

Construing these sections together, it appears that when a judgment is reyersed and remanded for a new-trial, the grounds for reversal must be stated, but when final judgment is entered, the grounds of reversal must be specified upon request of a party.

It has been held that the filing of an opinion is sufficient compliance with Section 12223-39, General Code. That decision, as well as Section 12223-39, General Code, ignores the principle that a court speaks only from its journal entry. State, ex rel. Foxall, v. Cossairt, 146 Ohio St., 328, 332, 65 N. E. (2d), 870. Query Elio, v. Akron Transportation Co., 147 Ohio St., 363, 365, 71 N. E. (2d), 707 . It is therefore concluded that a reviewing court, entering final judgment, upon request is required to specify the grounds of reversal in writing and, in conformity with the doctrine that a court speaks only from its journal entry, the grounds should likewise be incorporated in the journal entry.

Relator objects also to the proposed entry because it does not recite that no other errors appear on the record, and thereby fails to comply with Section 12223-21, General Code. Prom the specification of the errors upon which the reversal is founded, it is presumed that in passing upon all errors assigned the. court found the remaining errors nonprejudicial and overruled the same. Weaver v. Columbus, Shawnee é Hocking Ry. Co., 76 Ohio St., 164, 81 N. E., 180.

Pursuant to the request, the grounds for reversal are specified in writing and will be filed with the papers in the case, and also such grounds are recited in the journal-entry.

Judgment accordingly.

Conn, J., concurs,

Fess and Conn, JJ., of the Sixth Appellate District, sitting by designation in the Eighth Appellate District.


author: Stevens, P. J.

text:
    Donoughe, Appellee, v. The East Ohio Gas Co., Appellant, et al.
    (No. 4086
    Decided November 29, 1950.)

      Mr. Frank E. Steel and Mr. Ray J. McGowan, for appellee.

      Messrs. Buckingham, Doolittle & Burroughs, for appellant.
   Stevens, P. J.

The amended petition of the plaintiff, filed in the trial court, alleged:

That the defendant The East Ohio Gas Company is a corporation duly organized by virtue of law, and was at all times mentioned engaged as a public utility in furnishing gas for fuel and illuminating purposes to individuals, firms and corporations in Akron, Ohio.

That prior to January 24, 1942, the owner of the premises at 1752 West Market street in the city of Akron had caused to be installed, in the building known as “A-2” on said premises, a gas conversion heating unit; that said heating unit consisted of a Pacific coal boiler with conversion gas burners and various complicated electronic controls attached and connected therewith and thereto.

That said heating unit so installed was inherently defective, dangerous and unsafe, in that the type of boiler and the design and type of the gas burners and the. attachments thereto did not provide enough air for the complete combustion of gas which flowed into said heating unit, and, as a result thereof, the unburned gas accumulated in said boiler and in said state was imminently dangerous and liable to explode.

That said heating unit and the controls attached thereto did not operate properly and were not adjusted properly and were defective in various respects.

That said inherently dangerous, defective and unsafe conditions of said heating unit continued to exist by, from and after the original installation of the same, and on down to and inclusive of the 24th day of January, 1947.

That the defendant gas company was notified on various dates of the defects of said heating unit and of the failure of said heating unit to operate in a proper manner, the exact dates of said notices to the defendant being unknown to plaintiff, but fully known to defendant.

That in pursuance of said notices, said defendant undertook to and did inspect said heating unit and discovered the condition thereof, and negligently continued to furnish and supply gas to be used therein, and to permit and allow said heating unit, and the appliances connected therewith, to be used without remedying the defects, after having full knowledge of said defects.

That on January 24, 1947, at 3 p. m., plaintiff was employed by Westwood Manor, Inc., as a maintenance man in said premises; that he was directed to check said heating unit, and, being in ignorance of the danger then existing in and about said heating unit, he opened one of the doors thereof, with the result that there was a terrific explosion of the gas which had accumulated in said unit, and which was supplied by said defendant, as a consequence whereof plaintiff was seriously burned and injured.

That “the defendant was negligent in that it supplied gas to be used in the heating unit in question, at the time of the occurrence herein complained of on January 24, when it knew, or from its inspection should have known, that said heating unit was defective and unsafe. ’ ’

That plaintiff’s injuries were the direct and proximate result of the negligence of defendant above set forth, to his damage of $250,000.

For its answer, the defendant gas company admitted its corporate existence; that it was engaged in the sale and distribution of natural gas as a public utility; that it supplied gas to be used at the premises described in the petition; and that plaintiff sustained some physical injuries, the extent and character of whieh were unknown to defendant.

Defendant then denied generally the allegations of the petition not admitted, and prayed for the recovery of its costs.

Trial to a jury resulted in the return of a verdict for plaintiff in the amount of $75,000 against the defendant gas company, the defendant Olmstead having been dismissed from the case at the end of plaintiff’s testimony. Judgment accordingly was entered.

This appeal on questions of law followed, wherein appellant assigns the following errors:

1. In overruling the motion of appellant for a directed verdict and refusing to direct the jury to return a verdict in favor of defendant.

2. Error in the general charge of the court.

3. Error in refusing to charge the jury as requested by appellant.

4. Error in the admission of evidence objected to by appellant, and in excluding evidence offered by appellant.

5. The judgment is against the weight of the evidence and contrary to law.

6. Error in overruling defendant’s motion for a new trial.

This being an action by plaintiff to recover for injuries alleged to have been sustained by him because of the claimed negligence, of the defendant, it becomes necessary to ascertain what negligence was alleged, and what the proof thereof shows.

There is but one specification of negligence contained in plaintiff’s amended petition, which is as set forth in full above.

The evidence as contained in the record discloses that, as one of sevéral such installations, there was installed in the building designated as “A-2” in the Westgate property, a Pacific coal boiler. During the progress of construction of the Westgate project, gas was made available by the United States Government for use as fuel.

The owners of the project thereupon determined to use gas for heating purposes, and, in pursuance of that determination, corresponded with defendant company. That correspondence appears as plaintiff’s exhibits 1 to 24, attached to ,the record. It is the claim' of both parties that those exhibits spell out the contractual obligation of defendant to the property owner, and the plaintiff’s claim is that, from the contract thus created, and defendant’s failure to perform said contract, arise the alleged acts of commission and omission which furnish the predicate for plaintiff’s claim of defendant’s negligence.

From these exhibits it appears that defendant advised the property owner (plaintiff’s exhibit 8) that “the East Ohio Gas Co. will extend all gas mains in the streets to reach these apartment buildings. These extensions will be run at our own expense. You will be required to pay for a service line from the curb into each building.”

On August 31, 1945, defendant wrote to the owners in part as follows (plaintiff’s exhibit 14):

‘ ‘ The flue from the boiler to the chimney can be cut down from the size required for coal.'

“Building A-2 * * * 16”

l i * »

“A draft tee with center baffle should be installed on each boiler flue.

“We, at the gas company, will furnish supervision on installing the burners, controls and flue, and the proper baffling.

“We will light and adjust the burners and check the automatic controls to be sure they are operating properly. We will set the drafts, run an Or sat test to determine the correct setting of the boiler burners for maximum efficiency. We will answer emergency complaints any time of the day or night. There is no charge for any of this service. In order to eliminate any chance of a misunderstanding, we will not replace parts, or clean the boilers or flues. ”

Thereafter, the owner decided to use, and purchased and had installed, John Zink upshot conversion burners, and Minneapolis-Honeywell dampers automatically controlled.

In due course, after the installation of the conversion burners and automatic controls, the burners were lighted and the installation placed in operation.

From the outset there was difficulty experienced, because of lack of sufficient air for efficient combustion, and numerous suggestions were made to overcome the difficulties.

On March 27, 1946, an inspection of the gas burners in the Westgate project was made by Mr. Wishart, of John Zink Company, Mr. Burke and Mr. Burkett, of The East' Ohio Gas Company, Mr. Leon Psaty, one of the owners, and Samuel Jacobs, of the Jacobs Engineering Corporation, combustion engineers. As the result of that inspection, a report was made to Psaty & Fuhrman, Inc., the owner, in part as follows (plaintiff’s exhibit 19-B):

Report on Boiler Room, A-2: On inspection we found that the automatic controls were in operation (gas controls and electronic). The boiler tubes showed deposits of carbon. The burners under operation showed a pressure in the fire box. At that time the gas rate was approximately 2200 C. F. H. The draft diverter was open and the air inlet to the fire box was wide open. On increasing the gas to 2400 C. F. H. a much greater pressure in the fire box resulted. After closing, the diverter leaving but- a small opening and closing down somewhat on the air supply, we found the following results: a negative pressure in the fire box, 8% CO2 was found in the stack gases at a temperature of 375° indicated a combustion efficiency of approximately 77%. On shutting off the gas, no flash back was observed in the burners.

u * * *

‘1 Recommendations:

“No. 1: Draft adjusters should be installed on all breechings at once.

“No. 2. * * *

“No. 3. All burners and tubes that are carbonized or sooted should be cleaned. If any burners are damaged they should be replaced.

“No. 4. Adjustments for air and draft should be made on each boiler using CO2 indicators, flue gas thermometers and draft gauges. Since the installation of the draft adjusters at this time is extremely important * * * we strongly feel that draft adjusters of any type that are obtainable at once, should be installed. * * * Consequently we have ordered for immediate expressage to the job, six such adjusters.

i ( * # #

“Jacobs Engineering Corp. By Samuel Jacobs.”

Further correspondence ensued, which culminated in the letter of defendant to Mr. Nuovo, of Fsaty & Fuhrman, on April 18, 1946 (plaintiff’s exhibit 22), as follows:

“I visited Westgate Manor yesterday and met Mr. Jacobs who was working on the boiler in A-2 building. The Draft-O-Stat was installed, the air inlet door in front was connected to the lever arm on the automatic valve and, after adjusting both, the results showed a 375 degree stack with 7% CO2. The burner operated and performed better than ever before, and there were no flashbacks on automatic control.

“We agree with Mr. Jacobs that all of the boilers should be connected up in a similar manner. We are burning 2400 cubic feet of gas'per hour in the boiler. This is the first time it has been safe to use the correct input on this boiler.

“For the first time, I think we are getting good combustion, and will get good results on the boilers with this type of installation. I am Still of the opinion that there is too much heat in the. boiler box for these burners to stand up for a long period of time. The burners will not burn out as often or as soon as they have in' the past, but they will eventually burn out. Only time will tell us how long they will .last.

“I think Mr. Jacobs will recommend, and we agree, that all the boilers should be cleaned of carbon, all burners cleaned and brick on top of burners replaced, if necessary, during the summer months. ’ ’

From the date of this letter to the date of plaintiff’s injury (January 24, 1947), there is no showing of other than a normal, uneventful operation of the heating appartus and the controls thereof.

On January 23,1947, plaintiff, who was employed as a maintenance man at Westgate, was called to the office, and told that because the wife of Thomas Walsh had to go to the hospital on January 24, 1947, plaintiff would take Walsh’s place in caring for the heating equipment on January 24, and that Walsh would show him how to care for it.

According to Donoughe, Walsh stated: “I don’t know much about * * * [the furnaces] myself, but I will show you as much as I can.”

- Plaintiff stated that all Walsh told him was that if there was complaint about heat, to look at the aqua.stat (one of the automatic controls) to see that it was properly set, and to adjust the setting thereof, if necessary. Walsh also showed plaintiff , how to turn the gas on by using the manual control button.

On January 24, plaintiff entered upon the discharge of his duties in charge of the heating apparatus at Westgate.

During the afternoon of that date, a tenant in one Of the apartments heated by the boiler in building A-2, complained that she had no heat. Donoughe investigated, and found the radiator in her apartment to be cold. He then went to the boiler room in building A-2, looked at the aquastat, which he found to be properly set, looked in the door of the boiler and observed that the pilot light was burning, but that the burners were not lighted.

He says he then took hold of the manual control button, turned the valve on, waited a moment, and when the burners did not light, turned the valve off. He then repeated the procedure.

When the burners did not light, plaintiff took hold of the chain which activated the secondary air damper, and started to pull it open, when there was a delayed combustion, or, as described by plaintiff, an “explosion”; which occurrence will hereinafter be designated as an “explosion.” Plaintiff.was thrown against the wall, and thereby sustained serious and disabling injuries. As a further result of the explosion, the flue pipe between the heating unit and the chimney was blown down, and the door on the automatic air. damper was bulged outward so that it could not be closed. ■

A short time after the explosion, defendant’s employees were called, went to the premises, tested for leaks in the gas lines, and found none, replaced the flue pipe, checked the automatic controls, lighted the burners, and the unit and controls worked in the conventional manner- and without incident. However, the door of the automatic air damper, which was bulged outward as above stated, was blocked open, with a brick or bricks.

Under the allegation of negligence contained in the petition, it was incumbent upon plaintiff to show by a preponderance of the evidence that defendant was negligent in supplying gas to be used in the heating unit in question on January 24,1947, when it knew, or from its inspection should have known, that said heating unit and the controls thereof were defective and unsafe.

The furnishing of the gas by defendant to the heating unit in question at the time of the explosion is conceded, so we must address ourselves to the question of what the evidence shows the gas company knew, or, from any inspection which the evidence shows it to have made, should have known, of the alleged defective and unsafe condition of the heating unit and the controls thereof, at and before the time of the explosion.

The evidence is uncontroverted that, from April 18, 1946, to the moment of the explosion, the unit in question and the controls thereon operated normally and satisfactorily. No complaints to the defendant were made which would have furnished notice to defendant of a dangerous or defective condition of the unit or controls, nor is there a showing of facts from which such notice might be inferred.

“It is plain that the gas company was not an insurer against any and all damage which might result to a customer” (or its employee) “from the use of gas on the customer’s premises. The bare fact of explosion * * * would not suffice to establish a dereliction of duty on the part of the gas company. Facts and circumstances must be shown which indicate a want of ordinary care on the part of the gas company, proximately causing the injury, or evidence of facts from which such want of due care might be inferred.” Northwestern Ohio Natural Gas Co. v. First Congregational Church of Toledo, 126 Ohio St., 140, 153, 184 N. E., 512.

Plaintiff’s witness Race testified that in his opinion as an expert in heating, the installation in building A-2 was not a proper installation because “no furnace should be run with an automatic secondary air door on it without having other adequate air in case the door doesn’t open — for a safety feature.”

It must be remembered that the defendant did -not select or install the heating equipment or controls in question. The selection was made by the owners, and the installation by its contractor. Defendant had no authority to dictate the kind, size or type of equipment to be used, and under its agreement could only check the same during and after installation, for proper operation, and make such suggestions for improvement of operation as it deemed necessary. These owners needed not, and, as subsequent events proved, in some cases did not, follow defendant’s suggestions and recommendations in that connection.

The testimony of the witness Race could not impose on the defendant any obligation other than those covered by the agreement of defendant with the property owner, because, in the absence of a contract to do more, the responsibility of the defendant terminated when it safely delivered its gas to the curb at the property in question, unless it actually knew, or from any inspection made by it or information brought to its notice should have known, of the existence of a dangerous or defective condition of the heating equipment or the controls thereof.

At the close of all the evidence, the court should have determined, as a matter of law, the question of the legal duty of the defendant in this case; instead of doing so, the court charged:

“While there is no duty on the defendant to inspect heating units, yet if the defendant company, through its employee or employees, had knowledge, or, after inspection, in the exercise of reasonable diligence, should have had knowledge, that the heating unit, into which the defendant company permitted gas to flow, was defective and unsafe at the time of the occurrence herein complained of on J anuary 24,1947, in that some of the gas did not burn but accumulated in the heating unit due to improper facilities for combustion, and it is such information that would suggest to persons of ordinary care and prudence under the circumstances that the heating unit was unsafe, then the defendant company was under a duty to shut off the gas until the unsafe and defective condition could have been corrected.” (Italics ours.)

This charge permitted the jury to find negligence as against the defendant if information in defendant’s possession, or of which it should have had knowledge after inspection, even suggested “that the heating unit was unsafe.”

Mere suggestion of negligence is not the degree of proof required to establish actionable négligence against defendant, but evidence establishing the greater probability of the truth of some act of commission or omission, with which defendant is charged, which proximately caused the injury and damage to complainant.

The portion of the charge above set forth was erroneous, and prejudicially so, because it permitted an improper quantum of proof to establish defendant’s negligence.

‘ But entirely aside from the foregoing, under the terms of the agreement of the defendant with the owner, as set out in plaintiff’s exhibit 14, we are unanimously of the opinion that plaintiff’s evidence completely failed to show (1) the existence of a dangerous and defective condition of the heating equipment and the controls thereof, and (2) knowledge of the defendant of the existence of such alleged dangerous and defective condition, even assuming such condition did exist.

In the light of those conclusions, we are further of the opinion that the trial court erred to the prejudice of defendant when it overruled appellant’s motion foi a directed verdict, made at the conclusion of all the evidence.

As to the other errors assigned, we do not deem a discussion thereof necessary, but will merely state our conclusions thereon.

There was prejudicial error in the charge ol the court on the subject of the duty of the defendant to inspect the equipment in question, when the court charged: “If you do not find knowledge such as is gained actually, or that should have been gained by reasonable diligence through inspection, * * * your verdict will be for defendant * *

The law did not impose, and the contract of defendant with the owner did not provide for, the assumption by defendant of a duty to inspect the equipment and the controls thereof.

What the court should have said, was that, if defendant be found to have inspected the heating unit and the controls thereof, then defendant was bound to take notice of the conditions reasonably disclosed by that inspection, and to take such action as would have been taken by a reasonably prudent public gas utility company under the same or similar circumstances.

There was prejudicial error in the refusal of the trial court to give defendant’s special request to charge before argument No. 4, as follows:

“Defendant The East Ohio Gas Co. has no right to dictate to its consumers the type or character of gas-consuming equipment they shall use or how they shall install it or by whom it shall be operated, or how it shall be operated.”

The subject matter of that charge was proper, pertinent and important, and not cumulative of defendant’s request No. 2, as asserted by appellee.

We think it was error to admit evidence of the condition of the equipment and controls in question at a time almost nine months before plaintiff’s injury. The only possible basis for plaintiff’s recovery was upon a showing of a defective and dangerous condition of said equipment and controls at and immediately before the time of plaintiff’s injury, of which condition defendant had actual or constructive notice, and which proximately caused plaintiff’s injury.

We are further of the opinion that the evidence contained in this record shows that plaintiff’s injuries were caused solely by his own conduct, in twice injecting gas into the boiler, and then opening the automatic air damper, and that no negligence of the defendant contributed thereto.

From the foregoing, we conclude that there was no issue properly submissible to the jury, and that the trial court should have entered judgment for defendant at the conclusion of all the evidence; and, having failed to so do, it is the duty of this court to reverse the judgment, and to enter final judgment for appellant, with exceptions to appellee.

Reversed and final judgment for appellant.

Hunsicker and Doyle, JJ., concur.


text:
    Witkorowski, Appellee, v. Witkorowski, Appellant.

      (No. 4515
    Decided March 12, 1951.)

      Mr. A. C. Cselusta, for appellee.

      Mr. Stephen L. Markowski, for appellant.
   Fess, J.

This is an appeal on questions of law from a judgment of the Court of Common Pleas of Lucas County, Division of Domestic Relations, dismissing plaintiff’s petition for alimony, awarding her houser hold goods and assets in her possession, the custody of three minor children and $25 per week for their support, payable by the defendant, and dismissing defendant’s cross-petition for divorce. Defendant also appeals from another order finding him guilty of contempt “of a former order of the court” in failing to pay plaintiff the aforesaid $25 per week. The notice of appeal designates each of the foregoing orders entered on the same day, February 25,1950, and also the final orders overruling motions for new trial filed as to each order. The notice of appeal fails to designate another contempt order entered on August 15, 1950, as of July 27,1950.

The petition for alimony was filed July. 2, 1947. It sought alimony for plaintiff and support for and custody of the minor children, upon the grounds of extreme cruelty and gross neglect of duty.

The answer and cross-petition was filed July 10, 1947.

Alimony, pendente lite in the amount of $25 per week was awarded on July 22, 1947.

On January 28,1949, after trial, the court found the defendant guilty of gross neglect of duty and extreme cruelty, and that plaintiff was entitled to alimony on the ground of gross neglect. The journal entry awarded plaintiff the household goods, money and credits then in her hands and ordered defendant to pay medical expenses amounting to $710. Plaintiff was awarded custody of the children and defendant was ordered to pay her $30 per week for their support The entry recites further that “no further order is made against defendant so that he may expend all of his efforts toward the support of the minor children.”

’ The cause was certified to the Juvenile Court for further proceedings as to the care, custody, and ihe support of the minor children. . '

On March 28, 1949, defendant’s motion for a new trial was granted, the entry reciting that ‘‘said finding heretofore made is accordingly vacated and a new-trial granted. Exceptions.”

At the outset, defendant contends that the court, upon retrial, had no jurisdiction over the custody of the children, since that cause had been certified to the Juvenile Court. Although the entry granting a new-trial is not explicit, it did vacate the finding upon which the former entry was based and necessarily vacated the judgment for the purpose of re-examining the issues after the final order, judgment, or decree by the court. Section 11575, General Code. Cf. Markota v. East Ohio Gas Co., 154 Ohio St., 546, 97 N. E. (2d), 13. There is nothing in the record to support, appellant’s assertion in his brief that the Juvenile Court has since taken jurisdiction of the children and has modified the order from which the appeal is taken..

The finding of the court upon the second trial that the allegations of the plaintiff in her petition and the allegations of the defendant in his cross-petition are not true, and that the petition and cross-petition should be dismissed is not against the weight of the evidence and is not contrary to law. The court, in denying relief, might well have found aggression on the part of each party.

Having found against the plaintiff upon her petition, the court had no jurisdiction to award alimony.

Section 11998, General Code, provides:

“Upon satisfactory proof of any of the charges set forth in the petition, the court shall make such order for the disposition, care and maintenance of the children of such marriage, if any, as is just, and give judgment in favor of the wife for such alimony out of her husband’s property as is equitable * * (Emphasis added.)

Under Section 11998, the court likewise could make no order with respect to the children.

However, under Sections 8032 and 8034, General Code, where a husband and wife are living separate and apart and the question of the care, custody, and control of their offspring is brought before a court of competent jurisdiction, the court may order either or both parents to support such children. Section 1639-16, General Code, confers exclusive original jurisdiction upon the Juvenile Court to determine the custody of any child not a ward of another court. Section 1532, General Code, provides that all the powers provided for in Title IV, Chapter 8, General Code, relating to Juvenile Courts shall be exercised in Lucas county by the judge of the Court of Common Pleas, Division of Domestic Relations. Since no separate and independent Juvenile Court has ever been created in Lucas county, the tribunal authorized to administer the provisions of the Juvenile Court Act is the Court of Common Pleas, Division of Domestic Relations, and not the Juvenile Court. Burke v. Burke, 76 Ohio App., 431, 64 N. E. (2d), 683. Cf. Harlor v. Harlor, 79 Ohio App., 504, 65 N. E. (2d), 512. Therefore, the Court of Common Pleas, Division of Domestic Relations, was a court of competent jurisdiction to determine the question of the care, custody, and control of the minor children of the parties to this action.

With respect to the order of February 25, 1950, finding the defendant in contempt of the former order of the court, it is elementary that a court speaks only through its journal entry. The order requiring defendant to pay $25 per week for the support of the minor children commencing October 18, 1949, was not journalized until February 25, 1950. The defendant could not be legally adjudged in contempt of an order which had not been duly entered until the same day upon which he was adjudged in contempt.

The defendant assigns also as error the failure of the court to comply with his request for separate findings of fact and conclusions of law. This request was not made until the date upon which his motion for new trial was overruled, and no error was committed by the trial court in failing to comply with the request which should have been timely made after the decision was announced.

In conclusion, the judgment of February 25, 1950, finding and adjudging the defendant guilty of contempt is reversed, that portion of the judgment of February 25, 1950, awarding plaintiff possession of the household goods and assets in her possession is modified by deletion of the same from the entry, and the judgment of the court otherwise is affirmed.

Judgment accordingly.

Carpenter and Conn, JJ., concur.


author: Per Curiam.

text:
    Miller, Appellant, v. City of Marion, Appellee. Hardin, Appellant, v. City of Marion, Appellee.

      (Nos. 1015 and 1016
    Decided May 10, 1950.)

      Messrs. Maloney <£ Kelley, for appellant in cause No. 1015.

      Mr. Carter Patton and Mr. William P. Maloney, for appellant in cause No. 1016.

      Mr. John W. Watters and Mr. Frank W. Weidemann, for appellee.
   Per Curiam.

These are appeals on questions of law by the plaintiffs and the persons other than the plaintiffs, on whose behalf each of the actions is brought, and eross-appeals on questions of law by the defendant..

Case No. 1016 is an action by Hardin to recover from defendant city a balance which he claims is due him for services rendered by him in his employment by the city as a member of its police department during the years 1933, 1934, 1935, 1936, and 1937, and for a declaratory judgment, in favor of all -other persons employed by the city as members of its police department during those years, as to the balances due them, respectively, for services rendered during such period of time.

The aggregate amount claimed to be due is $19,-434.57 and interest.

Case No. 1015 is an action by Miller to recover from the defendant city a balance which he claims is due him for services rendered by him in his employment by the city as a member of its fire department during the years 1933, 1934, 1935, 1936, and 1937, and for a declaratory judgment, in favor of all the other persons employed by the city as members of its fire department during those years, as to the balances due them, respectively, for services rendered during such period of time.

The aggregate amount claimed to be due is the sum •of $38,706.91, with interest. . u

The action by Hardin was commenced August 6, 1945, and the action by Miller was commenced October 24, 1946. . " .

The city questioned the rights of the named plaintiffs'to institute class suits but later withdrew the objections, with the understanding that each of the several claimants would file in the cause in which his claim was made an authorization directing counsel for the. plaintiff in such cause to proceed with the prosecution of the action on behalf of the persons signing the authorization.. These authorizations were later filed in the respective actions.

• The city pleaded as defenses to the claims that the -persons on whose behalf the actions were brought had waived, in writing,, their, respective claims for com- : pensation; that such claims, are based upon a liability created by statute, and actions thereon are barred six years from the accrual of the causes thereof, under the provisions of Section 11222, General Code; and that the funds derived from the collection and liquidation of delinquent taxes, which plaintiffs assert are subject to- the payment of their claims, were not subjected to the payment of such claims and were expended by the city for other purposes.

The bills of exceptions disclose the following facts:

Large portions of the taxes levied by the city for municipal purposes during the years 1933, 1934. 1935, 1936, and 1937, and prior thereto, became delinquent .and could not be collected during those years, and by reason thereof the city, during that period of time, except for the year 1935, had insufficient funds to pay its operating expenses including the salaries of the members of the police and fire departments.

In view of this situation, typewritten waivers were signed and given by each of the plaintiffs for the years mentioned, in which waivers each consented to receive certain amounts less than the compensation each was entitled to under the ordinances of the city.

The amounts alleged to be due represent the differences between the amounts actually received by plaintiffs, as compensation for their services, and the amounts the ordinances prescribed they should be paid.

These waivers for members of both departments were identical in form, the signatures of the members of the police department being affixed to one set of waivers, and the signatures of the members of the fire department being affixed to the other.

The amounts of compensation waived vary to the same extent as the rates of pay fixed by the ordinances for the various persons signing the waivers vary.

The waivers were executed at the solicitation of and on a form suggested by the finance committee of the council of the city and were executed pursuant to negotiation's between the finance committee and the grievance committees of the members of the police and fire departments upon the oral understanding that when sufficient funds were derived by the city from the collection of delinquent taxes the members of each of the departments would be paid the waived portions of their salaries.

The waivers, omitting signatures, were, for the years 1933, 1934, 1936, and 1937, in the following forms:

“Year 1933

“To the Council and Auditor of the City of Marion, Ohio:

“We, the undersigned, employees of the city of Marion, Ohio, desiring to assist in reducing operating costs of said city during the year 1933, hereby voluntarily consent and agree that for our services rendered to said city, beginning January 1, 1933, and ending December 31, 1933, in the respective positions held by us as hereinafter designated, we will accept as full compensation from the said city of Marion for our services such sum per month as we hereinafter respectively designate.

‘ ‘ This proposal and agreement shall be authority of the city council to appropriate funds for payment of our respective salaries in accordance with the amounts herein specified; and we further authorize the auditor of the city of Marion to issue checks to us in payment for our services in the amounts per month hereinafter designated which we hereby agree to accept as full compensation for our respective services as such employees of the city of Marion.”

“First Half Year 1934

“To the Council and Auditor of the City of Marion, Ohio:

“We, the undersigned, employees of the city of Marion, Ohio, desiring to assist in reducing operating cost of said city during the first half of 1934, hereby voluntarily consent and agree that for our services rendered to said city, beginning January 1st, 1934, and ending June 30, 1934, we will take a twenty per cent (20%) reduction in our regular salaries in the respective positions held by us as hereinafter designated, and that we will accept as full compensation from the said city of Marion for our services, such sum per month as we hereinafter respectively designate.

“This proposal and agreement shall be authority of the city council to appropriate funds for payment of onr respective salaries in accordance with the amounts herein specified; and we farther authorize the auditor of the city of Marion to issue checks to us in payment for our services in the amounts per month hereinafter designated which we hereby ■ agree to accept as full ■ compensation for our respective services as such employees of the city of Marion, Ohio.

“It is further understood and agreed; that in the event the finances of the city of Marion, become such as to enable the payment of over eighty per cent (80%) of our regular salaries, then in such event, it is hereby agreed, that such payment of k higher per cent shall be paid.

“It is further agreed, that if the finances of the city of Marion become such, as to permit the payment Of back salaries, which have been deducted by reason of ■the signing of this waiver, then, in such event, such i per cent of back salaries will be paid as the finances of the city of Marion shall warrant. ”

“Last Half Year 1934 •

“To the Council and Auditor of the City of Marion, Ohio: '

“We, the undersigned, employees of the City of Marion, Ohio,' desiring to assist in reducing operating cost of said city, during the last half of 1934, hereby voluntarily donate a sum equal to twenty (20%) per cent' of our regular salaries for our 'services 'rendered or to be rendered to said city, beginning July 1, 1934 and ending December 31, 1934.

“This proposal and agreement shall'be authority of the city council to appropriate funds and the city ' auditor to issue cheeks to us in payment of our respective salaries iri accordance with the provisions' of the above paragraph.

“It is further understood and agreed, that in the event the finances of the city of Marion become such that a donation of twenty (20%) per cent of our regular salaries or any part thereof is unnecessary, notification shall be given to us and accordingly, the donations which we hereby agree to make, will terminate.

“It is further agreed, that if the finances of the city of Marion become such as to permit the payment of all or any part of the total amount donated by us during the course of the last half of the year 1934, then in such event action will be taken by the council to restore to us the whole or any part of the amount so donated by us to the city of Marion for services rendered.

“Nothing contained in this agreement is to be construed as a reduction in regular salaries, but merely as a donation to the city of Marion, and as a gesture on our part to assist in reducing operating cost of said city during the last half of the year 1934.”

“Years 1936 and 1937

“To the Council and Auditor of the City of Marion, Ohio:

“We, the undersigned employees of the city of Marion, Ohio, desiring to assist in reducing operating costs of said city during the years of 1936 and 1937 hereby voluntarily consent and agree that for our services rendered to said city beginning January 1, 1936, and ending December 1, 1937, in the respective positions held by us as hereinafter designated, we will accept for our services 15% less than our salaries provided by ordinance of the city of Marion, Ohio.

“This proposal and agreement hereby authorizes the city council to appropriate funds and payment for salary in amounts of 15% less than the salaries set up by ordinance of the city of Marion, Ohio; and we further authorize the auditor to issue checks in said amounts which we agree to accept as full compensation for, our respective • services as employees of the city of Marion, Ohio.”

The city council, following the execution of such waivers, adopted appropriation ordinances during certain of such years for payment to members of the police and fire departments of lesser amounts than those required by the ordinances, such lesser amounts being sufficient only to pay the compensation due after giving effect to the deductions in pay authorized by the waivers. The city paid, and the police and firemen accepted, such reduced pay.

The city council did not adopt any resolution or ordinance prescribing that the amounts of compensation waived by the members of - the police and fire departments during such years should be paid to them out of the proceeds of delinquent, taxes, nor did council authorize its finance committee to negotiate with the grievance committees of the police and fire departments or to enter into any agreement with them as to the subject matter of the waivers.

On November 12, 1935, council adopted an ordinance which was duly amended by ordinance adopted December 16, 1935, providing for the. issuing of bonds of the city of Marion, in the sum of $125,500, for the purpose of liquidating its indebtedness. This ordinance provided that the bonds were to be issued in anticipation of the collection of delinquent taxes, and that the delinquent taxes collected for and to the credit of the city, should be paid to the authority having charge of the sinking fund and placed in a separate fund for the purpose of paying interest on and retiring such bonds.

On December 9, 1937, council passed an ordinance providing for the issuance of bonds in the sum of $70,000 in anticipation of the collection of delinquent taxes. It was provided in these bonds that all funds derived from the collection of delinquent taxes should be placed in a separate and distinct fund which was irrevocably pledged for the payment of interest and principal of the bonds.

In this ordinance it was recited that, the total amount of delinquent taxes due and unpaid to the city at the last semiannual tax settlement was $250,535.39.'

On October 28, 1940, council adopted an ordinance providing for the issuance of notes in anticipation of the issuance of bonds for poor relief, in the sum of $40,000, in which it was prescribed that all the revenues derived from the payment of delinquent taxes are irrevocably pledged to the payment of 'the bonds and the notes issued in anticipation thereof.

On August 10, 1942, council adopted an ordinance for the issuance of bonds in the sum of $12,000 to be used for poor relief.

In this ordinance it was provided that while such notes are outstanding all the revenues derived from the payment of delinquent taxes are irrevocably pledged to the payment of such bonds and the notes issued in anticipation thereof.

All the tax delinquences existing during the years 1934, to 1937, inclusive, were required by statute to be fully liquidated and collected prior to the time these actions were tried in the Common Pleas Court, and it is, therefore, presumed that this had occurred.

By ordinance the city, during the years 1933 to 1945, inclusive, appropriated funds for the payment of members of its police department, which funds were in excess of the amounts paid to such members as compensation for their services during those years, in the following amounts:

Excess
Year Appropriation
1933 ....................$4579.24
1934 .................... none
1935 ............. none
1936 .................... 2.22
1937 .............. 1497.19
1938 ............. 554.51
1939 ............. 2692.88
1940 ................ none
1941 ............... 647.51
1942 ...........■......... 49.56
1943 ..................... 1453.49
1944 .................... 5405.22
1945 .................... 5899.77

By this ordinance the city also appropriated funds for the payment of members of its fire department, which funds were in excess of the amounts paid to such members as compensation for their services during those years, in the following amounts:

Excess
Year ' Appropriation
1933 ...................$10696.00
1934 ............... .41
1935 ................... 1942.74
1936 ................... ■ 207.42
1937 ................... 888.43
1938 ................... 326.56
1939 ................... 2513.42
1940 ................... none
1941 ................... 1206.39
1942 ................... 50.98
1943 ................... 541.88
1944 ........... 5431.85
1945 ................... 5427.00 .

In both cases, the Common Pleas Court, in effect, found and adjudged as follows:

That, notwithstanding the waivers signed by the members of the police and fire departments, such members were entitled to payment by the city of the differences between the amounts received by them and the amounts which the ordinances then in effect provided should be paid them during the years 1933 to 1937, inclusive; that the liability created by the ordinances fixing the compensation of the members of these departments was a liability created by law, and action thereon was, therefore, barred by the provisions of Section 11222, General Code, upon the expiration of six years from the time the cause of action for such compensation accrued;' that the appropriations for the payment of the members of the police department during the years 1933 to 1937, inclusive, exceeded the amounts paid to the members of such department by the sum of $6,079.05; that the appropriations for the payment of the members of the fire department during the years 1933 to 1937, inclusive, exceeded the amounts paid to the members of such department by the sum of $11,792.25; that such excess appropriations constituted trust funds held by the •city for the payment of the members of the police and fire departments in the shares to which such members are entitled, based on the differences between the ¿mounts they would have received under the salary ordinances and the amounts actually received by them during such years, and in the proportion that the aggregate of the trust fund for each department bears to the aggregate amount of differences in each department; that the trust constituted a continuing and subsisting trust; that payments from the trust funds are not barred by any statute- of' limitation, and the agg'regate amounts thereof should be paid by the city to the members of the police and fire departments. in the shares and in the proportion above prescribed; and that no interest should be paid on the amounts found due the members of the fire department.

Those are the judgments from which the plaintiffs appeal, and from which the defendant cross-appeals.

As the appeals involve the same questions of law and similar questions of fact, the court considers them together.

Plaintiffs contend that the members of the respective departments are entitled to the differences between the amounts received by them during the years 1933 to 1937, inclusive, and the amounts they should have received under the ordinances regulating their employment, and the amounts found due them should bear interest at six per cent; that the city is bound, as upon contract, by the representations of the committees of its council in procuring the written waivers, and, if not bound as by contract, the city, having received and accepted the services of the members of the departments during such years, on the basis of such waivers is estopped from denying that it is bound: that, although portions of the taxes levied for the maintenance of the respective departments became and were delinquent during such years, the levies themselves created a special fund which has since been collected in full and is for the benefit of the members of the respective departments to the extent of the amounts due each of them, such fund constitutes a trust fund out of which they are entitled to the payment of their respective claims, and, consequently, action upon such claims is not barred by the provisions of Section 11222, General Code; and that the Common Pleas Court erred in overruling motions of plaintiffs to amend their petitions to conform to the evidence.

On the other hand, the city contends that the claims of the members of both departments are barred by the provisions of Section 11222, General Code; that the mere levy of taxes for expenses of the police and fire departments, without appropriation for the respective departments, did not create a trust fund for the payment of the members of such departments; that the waivers preclude the members of the departments from making any claim for compensation for the years involved; and that the excess appropriations reverted to the general fund of the city at the expiration of the year in which they were made, subject to reappvopriation, and, consequently, do not constitute a special fund from which the members of such departments may be paid.

We will first consider the legal effect of the various written waivers.

The waivers for the years 1933, 1935, and 1936 purport to have been executed “to assist in reducing operating cost of said city” during those years and are absolute and unconditional.

The contention of the plaintiffs that these waivers were executed with the oral understanding that the city would reimburse the signers for the amounts of the reductions in pay at some future time or out of funds derived from the collection of delinquent taxes is wholly inconsistent with the absolute and unconditional character of the waivers.

As the waivers are in writing, all agreements leading to their execution are conclusively presumed to have been merged in the written instruments, and since they are free from ambiguity' their terms are not subject to alteration by oral evidence. Therefore, these waivers must be construed as having the effect they purport to have, that is, of absolute and unconditional waivers.

The members of both the police and fire departments during the year 1935 received' the full pay prescribed by ordinance and there is nothing due or owing to any of them for services rendered by them during that year. Hence, it is unnecéssary to consider the legal effect of the waivers for that year.

The first two paragraphs of the waivers for the first half of the year 1934, signed by members of both the police department and the fire department, the only waivers not hereinbefore discussed, are in the same general form as the first two paragraphs of the waivers for the year 1933, but there, are two additional paragraphs setting forth certain conditions attending their execution, the pertinent one being contained in the last paragraph, which reads as follows:

“It is further agreed, that if the finances of the city of Marion become such, as to permit the payment of back salaries, which have been deducted by reason of the signing of this waiver, then, in such event, such per cent of back salaries will be paid as the finances of the city of Marion shall warrant.”

In» the waivers signed by the members of both the police and fire departments for the last half of the year 1934, there are three additional paragraphs setting forth certain conditions. The pertinent condition is set forth in the last paragraph, which reads as follows:

“It is further agreed, that if the finances of the city of Marion become such as to permit the payment of all or any part of the total amount donated by us during the course of the last half of the year 1934, then in such event action will be taken by the council to restore to us the whole or any part of the amount so donated by us to the city of Marion for services rendered. ’ ’

The conditions mentioned are inconsistent with the recitals in the first paragraph of the various waivers to the effect that the signers, desiring to assist in re-. ducing the operating expenses of the city, consent and agree to reduction in pay. A reduction in operating expenses would not be accomplished by merely extending the time of payment of a portion of such expenses. However, considering the waivers by the four corners, it is apparent that it was the intention of the signers that, notwithstanding such recital, the waivers were made and given upon the express conditions mentioned.

The waivers for the year 1934, therefore, did not have the effect of releasing or discharging the city from the payment of the differences between the amounts of compensation provided by the ordinances and the amounts actually paid to the members of each of such departments, but operated solely as a proposal to extend the time of payment of such differences.

The aggregate of such differences for the members of the police department for the year 1934 is $4,501.15 and for the members of the fire department for the same year is $10,792.98.

Unless the conditions of the waivers above set forth are binding upon both the plaintiffs and the city, or unless the city by the levy of taxes or by its appropriation ordinances created a special trust fund for the payment of such differences, actions therefor were barred by the provisions of Section 11222, General Code, long prior to the commencement of the instant actions, as the liability of the city is created by statu fce, and the right of action of each claimant for the unpaid portion of his compensation prescribed by ordinance accrued each month, as his salary became due and such portion was not paid. And this is true irrespective of whether funds had been or were appropriated for such payment, as there are statutory provisions requiring the appropriation of funds by cities for the payment of judgments.

The mere levy of taxes for municipal purposes, including maintenance of the police and fire departments, did not of itself constitute the creation of a special fund for the payment of the unpaid portions of the compensation of members of the police and fire departments. It is only when such taxes are collected and by ordinance appropriated that a special fund is created. Furthermore, the statutes of Ohio expressly authorize cities to use the proceeds of delinquent taxes for purposes other than those specified in the original levies, as was done by the city of Marion, thus making inconsistent the contention that the original levy constituted the creation of a special fund.

As hereinbefore stated, the evidence in these cases does not tend to prove that the city agreed with any of the plaintiffs to use the proceeds of delinquent taxes for the purpose of paying the unpaid portions of the salaries.

Following the execution of the waivers, the city had the option of reducing the pay or the personnel of each of the departments, so as to bring the cost of maintenance thereof within the limits of funds it could then appropriate for such purpose, or to accept the waivers in the form they were given by appropriating funds in conformity therewith.

In this situation the city acted by ordinances appropriating sufficient funds to pay only that portion of the compensation the time of payment of which had not been extended by the waivers, which ordinances were necessarily responsive to the waivers. This action on the part of the city constituted an acceptance of the proposals contained in the waivers, and the city thereby became liable to pay the salaries in conformity with the conditions set forth in the waivers.

It will be noted that none of the quoted conditions of the waivers provides for the payment of interest upon the unpaid portions, of the compensation of the members of the police and fire departments.

Although the quoted conditions are worded somewhat differently, it is the clear intent of each of them that the unpaid balances should become due and payable only if and when the finances of the city should permit or warrant their payment.

On the record, we determine, as a matter of law, in the action brought by Hardin on behalf of himself and other members of the police department, that the city owes Hardin and the other members, as balances of their compensation for the year 1934, the aggi egate sum of $4,501.15; and, in the action brought by Miller on behalf of himself and other members of the fire department, that the city owes Miller and the other members, as balances of their compensation for the year 1934, the aggregate sum of $10,792.98.

We determine further, as a matter of law, that such amounts became due to the respective persons within six years prior to October 24, 1946; that actions thereon were not barred by any statute of limitation; and that it is impossible from the record to fix the approximate date when the finances of the city permitted or warranted the payment of the amounts owing by the city and the date when such amounts, under the conditions set forth in the waivers, became due and payable.

We determine further, as a matter of law, that the appropriations made by the city subsequent to the year 1934 and prior to the time the finances of the city were such as to permit or warrant the payments of the amounts owing for compensation for the year 1934 were encumbered by such indebtedness incurred during the year 1934, and the amounts of such appropriations each year in excess of the amounts paid policemen and firemen did not revert to the general fund of the city for reappropriation, but constituted special funds for the payment of such indebtedness incurred during the year 1934, although, in view of our holding that the indebtedness mentioned constituted a general obligation of the city, this determination is not essential to the decisions of these cases.

We determine further that as the indebtedness mentioned is not contractual in character but is a liability created by statute, neither Section 8305 nor any other section of the General Code authorizes the award of interest thereon to the creditors from the time such indebtedness became due.

We determine further that there is no evidence tending to sustain the allegations of the amendments to the petitions which plaintiffs moved the court to al- . low in order to have conformance with the evidence, and, consequently, that the court did not err in overruling the motions to allow such amendments.

. We determine and adjudge further that the judgments of the Common Pleas Court are contrary to law in each and every respect. They do not conform to the foregoing holdings of this court. Accordingly, the judgments hereby are modified so as to conform to our holdings and, as modified, are affirmed.

Judgments accordingly. ■

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