author: Matthews, J.

text:
    Hickey, a Taxpayer, Appellant, v. Burke, Mayor, et al., Appellees.
    (No. 20367
    Decided June 19, 1946.)

      Mr. George J. McMonagle and Mr. Richard E. Mc-Monagle, for appellant.

      Mr. Lee G. Howley and Mr. Robert J. Selser, for appellees.
   Matthews, J.

This is an appeal on questions of law only from a judgment denying the prayer of the plaintiff, a taxpayer, for an injunction restraining the city of Cleveland and its mayor from entering into a certain relation with the state of Ohio, involving the title, maintenance and operation of Hoover Pavilion as a receiving hospital for mentally ill, which hospital had been constructed and was owned and operated with funds derived by taxation by the city of Cleveland primarily as a psychopathic unit of its municipal hospital, but a minor part of which at the time was being used as a hospital for tubercular patients. A part of the bonds issued to secure funds for the construction of Hoover Pavilion have not matured and constitute a general obligation of the city of Cleveland, to.pay which it must exercise its taxing power.

By Section 1890-16, General Code (119 Ohio Laws, 616, 620; amended, 121 Ohio Laws -, effective October 11, 1945), it was enacted:

“Under .the direction and with the authority of the director, the division of mental hygiene shall develop, extend and complete a statewide system of receiving hospital service, by contracting for the use of services for the care and treatment of patients, or by establishing receiving hospitals or by leasing, or contracting for the use of privately or publicly owned facilities to be designated as receiving hospitals as defined and provided for herein, either separate from or in connection with existing or future state hospitals, which receiving hospitals shall be used for the observation, care and treatment of the mentally ill, and especially for those whose condition is incipient, mild, or of possible short duration. Such receiving hospital shall perform any of the work or duties authorized to or required of the division of mental hygiene.”

As a part of the implementation of the policy expressed in Section 1890-16 et seq., General Code, the General Assembly provided for the expenditure of $726,000 for a receiving hospital for the mentally ill of Cuyahoga county, in which the city of Cleveland is situate.

On February 25, 1946, the council of the city of Cleveland, by unanimous vote, passed an ordinance which was duly signed by the mayor on February 28, 1946, in the preamble of which was recited the appropriation of $726,000 by the General Assembly, the fact that the city of Cleveland owned and operated Hoover Pavilion as a receiving hospital for the mentally ill, and that it was the desire of the city of Cleveland to make available at once to the state of Ohio the facilities of Hoover Pavilion as a receiving hospital for the mentally ill and in addition to provide facilities for its necessary and desirable expansion as a receiving hospital. It recited also the city’s conclusion that it had the legal power to make the transfer without complying with Sections 3631, 3698 and 3699, General Code. Then reciting that it was acting pursuant to the authority of the case of Green v. Thomas, 37 Ohio App., 489, 175 N. E., 226, it was determined that, by reason of the urgency and need of care for the mentally ill and the benefit flowing to the city of Cleveland by reason of the establishment, maintenance and operation of a receiving hospital for the mentally ill by the state of Ohio in and upon the premises of the city of Cleveland upon which are located the city hospital facilities, it is in the public interest to transfer the title to the site upon which the Hoover Pavilion is located, together with such additional land owned by the city as is necessary properly to operate a receiving hospital for the reception, treatment and care of the mentally ill. It was determined also that Sections 236 and 237 of the Municipal Code of Cleveland of 1924 and Sections 3698 and 3699, General Code of Ohio (prescribing the method to be pursued by municipal corporations in making sales of municipal property), were not applicable and were waived and this was followed by an authorization of and direction to the mayor to enter into an agreement with the state of Ohio for the transfer to the state of the real estate, personal property and facilities of Hoover Pavilion upon the following considerations:

“1. The sum of one dollar ($1).

, “2. The designation of such Hoover Pavilion by the state of Ohio as a receiving hospital for the reception, treatment and care of the mentally ill. .

‘ ‘ 3. The maintenance, operation and development of said Hoover Pavilion as a receiving hospital for the reception, care and treatment of the mentally ill.

“4. The expenditure by the state of Ohio of the sum of $726,000 appropriated by the 96th General Assembly of Ohio for capital expenditures for a receiving hospital in Cuyahoga county in the improvement of said Hoover Pavilion and its facilities, including the ultimate purchase of approximately ten sublots on Aiken avenue in order to provide adequate space for entrance to said pavilion from said Aiken ave.

“Said agreement shall be prepared by the director of law and shall provide for the furnishing of heat and such other services as the state may require in the operation of said Hoover Pavilion and in addition shall provide for such facilities and services as may be required by the state until such time as the state may operate said receiving hospital as an independent unit, and in addition such other matters pertinent to said transfer.”

Further it was determined that the deed of conveyance should contain a reverter clause to the effect that if the state should fail to maintain and operate the property conveyed as a reception hospital for the mentally ill, the premises together with all the improvements made or erected thereon should revert to, vest in, and become the absolute property of the grantor.

It was at this juncture that this action for an injunction to restrain action under the ordinance was instituted.

The validity of what is proposed by this ordinance is assailed on the ground that property of the value of $2,274,000 will be transferred to the state of Ohio for the nominal consideration of $1, without advertising for bids, or opportunity for competitive bidding, without any finding that the property was no longer needed for any municipal purpose, without statutory authority, and in direct violation of the city charter and the statutes of the state already referred to.

In preparing to consider the problem presented, certain general principles should be kept in mind:

(1) The state — that is, the people acting as a political entity — is the sovereign and has complete governmental power limited only by the Constitution of the United States.

(2) The people, through the state Constitution, have conferred upon the General Assembly the legislative power of the state which embraces, inter alia, the power to legislate for the public health and, therefore, it has the power to make provision by legislation for the mentally ill.

(3) Municipal corporations are mere political subdivisions Or agencies of the state. The state is the principal and they are the agents, and, while they derive their power of local self-government directly from the people through the Constitution (Section 3, Article XVIII), such power is subordinate to the legislative power granted by the people to the General Assembly to safeguard the public health, safety and morals of the people by general laws applicable throughout the state. Leis v. Cleveland Ry. Co., 101 Ohio St., 162, 128 N. E., 73; State, ex rel. Village of Cuyahoga Heights, v. Zangerle, 103 Ohio St., 566, 134 N. E., 686. Therefore, the General Assembly may leave to the municipalities the task of conserving the health, morals or safety in a particular field, but as the policy making body for the whole state may conclude that the situation requires the enactment of general laws. When such laws are enacted all conflicting municipal regulations become inoperative. The existence of such municipal regulations in no way limits the power of the General Assembly to enact such general laws. In City of Cincinnati v. Gamble, 138 Ohio St., 220, 34 N. E. (2d), 226, it was held as stated in the third paragraph of the syllabus that:

“3. In matters of state-wide concern the state is supreme over its municipalities and may in the exercise of its sovereignty impose duties and responsibilities upon them as arms or agencies of the state.”

Or after it has imposed duties upon a municipality, it may relieve the municipality of the duties and withdraw the power. If property has been acquired, it may shift the title and control to other agencies or take title and control itself. In 37 American Jurisprudence, 701, 702, it is said:

“The legislature may take the control of such property from the officers of the corporation and turn it over to other officérs under the more direct supervision and control of the state. The state may, at its pleasure, modify or withdraw the power to hold and manage property, or take such property without compensation, hold it itself or vest it in other agencies, conditionally or unconditionally, with or without the consent of the citizens, or against their protest; it may require the municipality to expend its funds for the acquisition and maintenance of such property ; or it may provide whatever regulations for the use and management thereof it may deem to be for the public interest. The legislative power over municipal property, when it exists, does not, however, extend so far as to enable the legislature to require a transfer without compensation, to a private person of private corporation. The control which the legislature may exercise is limited; it must act by public agencies and for public uses exclusively. If the municipality has purchased property for purposes which are strictly and purely public, as a mere instrumentality of the state, such property is so far subject to the control of the legislature that other instrumentalities of the state may be substituted for its management and care; * *

(4) The state itself is not embraced within the general terms of a statute. If the state is to become bound the language must be clear that the General Assembly so intended. In a case involving the question of whether the state was bound to pay interest for delay in payment of money the court said in State, ex rel. Parrott, v. Board of Public Works, 36 Ohio St., 409, at pages 414 and 415:

“It is also insisted by the defendants, that the claim of relators, being one against the state, interest thereon cannot be allowed.

“On the other hand, it is claimed that the relators are within the terms and meaning of the statute which provides ‘That all creditors shall be entitled to receive interest on all money after the same shall become due, either on bond, bill, promissory note, or other instrument of writing, or contract for money or property.’ That the words of this statute are broad énough to embrace the claim of relators is not disputed; but it is contended that the state is not embraced within the general words of a statute, and can be held to be within the purview of a statute only when so declared expressly or by necessary implication.

“The doctrine seems to be, that a sovereign state, which can make and unmake laws, in prescribing general laws intends thereby to regulate the conduct of subjects only, and not its own conduct.

“ It is a familiar doctrine; that a state is not affected by the statute of limitations, however general its terms may be. Greene Township v. Campbell, 16 Ohio St. 11; Josselyn v. Stone, 28 Miss., 753. Upon the same principle, it has been held, that a statute providing that ‘costs shall follow the event of every action or petition,’ does not apply to a party prevailing against the state even in a civil cause. State v. Kinne, 41 N. H., 238. Indeed, the doctrine of the common law expressed in the maxim, ‘The king is not bound by any statute, if he be not expressly named to be so bound’ (Broom Leg. Max. 51), applies to states in this country as well. Moreover, upon the same principle rests the well-settled doctrine that a state is not liable to be sued at the instance of a citizen.”

(5) "When specific property is needed by the state, it is not required to enter the competitive field and take its chance of being the highest bidder in the market place or at a public auction conducted as prescribed by statute. It has a right of pre-emption by agreement with the owner or a value fixed hy a jury in an action to appropriate the property in the exercise of its right of eminent domain.

It was with these attributes of sovereignty that the General Assembly determined to assume through state officials more direct control over the operation (and, if need be, the ownership) of the hospital for the mentally ill. It expressed its policy and the method of effectuating it in Section 1890-16, General Code, effective October 11, 1945, already quoted. By this statute, it authorized the Director of Public Welfare to develop a state-wide system of receiving hospital service by contracting for the use of “publicly owned facilities.” It thereby expressly authorized the Director of Public Welfare to contract with cities for the use of municipally owned hospitals — and no distinction was made between such hospitals as were obtained through expenditure of tax money and such as might be obtained in some other way.

To carry out its policy, the state decided that it needed Hoover Pavilion. Prom that decision there could be no appeal. If it had been owned by a private person, it could have taken it against his will under its power of eminent domain. It happens, however, that Hoover Pavilion is owned and operated by an instrumentality of the state, through which it had performed its duty to care for the mentally ill before it decided to establish a state-wide system. In acquiring this facility for its state-wide system, the provisions for competitive bidding are entirely irrelevant, whether eminent domain is invoked or the power to contract is resorted to under Section 1890-16, General Code. And it is not devoting Hoover Pavilion to a purpose different from the original purpose.

Viewing the relation between the state government and the city of Columbus and the agreement entered into, the court in Green v. Thomas, supra, concluded that the transaction was not a sale or a gift of municipal property and that, therefore, the statutory and constitutional 'provisions applicable to sales or gifts of municipal property were inapplicable. We think the features of this transaction, whereby the state assumes the maintenance and operation of Hoover Pavilion as a receiving hospital for the mentally ill, more strikingly disclose the inapplicability of such provisions. It is a co-operative arrangment for the performance of a duty resting upon all the people.

Counsel urge that by Section 1, Article VII of the Constitution of Ohio, the obligation is imposed upon the state to provide for the insane, which is true, but the Constitution does not prescribe the instrumentalities by which the duty should be performed. It does not prohibit the state government from authorizing or requiring municipalities and political subdivisions to perform the duty, by providing for the mentally ill within their respective borders. Whether the duty is performed by state officials or by local officials, it is performance of .this constitutional duty. The change in policy as evidenced by the recent legislation is that the state government has concluded to exercise a greater supervision and defray a greater share of the expense. And speaking of property acquired for governmental purposes, it is said in 1 McQuillin on Municipal Corporations (2 Ed.), 681, that:

“It may be transferred to some other agency of government charged with the same duties, or it may be devoted to other public purposes. As to public property in the sense of its being governmental, the limit of legislative control is that such property cannot be devoted to private uses by legislative action alone, either directly or indirectly, after its dedication to public uses.”

We think it appropriate to notice certain cases relied on by the plaintiff.

Wasson v. Commissioners of Wayne County, 49 Ohio St., 622, 32 N. E., 472, 17 L. R. A., 795, decided that a county could not levy a tax to raise money that was to be paid to the state for use of the state in establishing an agricultural experiment station within the county, wholly owned and controlled by the state. It was held that it violated Section 2 of Article XII of the Constitution, requiring taxation to be according to a uniform rule according to value. In the case at bar, there is no such question. It does not involve the levy of á tax. True, Hoover Pavilion was acquired, as is most public property, by the use of the taxing power, but the taxing transaction does not continue until the proceeds of the tax can no longer be traced. The proceeds of a tax levy lose their identity when expended. Section 2 of Article XII of the Constitution relates only to the levy and collection of taxes and imposes the rule of uniformity when the levy is according to value. The authority of municipalities and other political subdivisions over public-property and the ultimate control of the state are foreign to the subject matter and are governed- by other constitutional and statutory provisions.

The only difference between Wasson v. Commrs., supra, and Hubbard v. Fitzsimmons, 57 Ohio St., 436, 49 N. E., 477, is that the legal title to the property was to be lodged in the county. The statute was applicable only to Cuyahoga county, and, therefore, apparently violated Section 26 of Article II of the Ohio Constitution, requiring all laws of a general nature to have a uniform operation throughout the state. It assumed to authorize Cuyahoga county to levy a tax for the specific purpose of furnishing an armory for the use of the state militia. The defect inhered in the legislation authorizing the tax as it did in Wasson v. Commrs., supra.

"We do not regard the case of State, ex rel. Clemmer & Johnson Co., v. Turner, 93 Ohio St., 379, 113 N. E., 327, as of any great aid. However, the co-operative arrangement between Akron and the state was sustained, and.the court, at pages 388 and 389, did point out that there was consideration accruing to Akron. No one suggested any duty to submit the transfer of the title to competitive bidding as a prerequisite.

In City of Cleveland v. Public Library Board, 94 Ohio St., 311, 114 N. E., 247, the court, while approving the specific transfer, laid down the proposition that a municipal corporation has no authority to donate real estate to the trustees of a public library of a school district. Of course, legislative authority to make such a transfer would be necessary, and there was none. As we view it, it is one thing for one political subdivision to transfer to another subdivision and an entirely different thing for the sovereign state, acting under the authority of its legislative branch, to accept a transfer from one of its arms or instrumentalities as political subdivisions are. Furthermore, that case involved a donation, which is not the case at bar.

When the city of Cleveland established Hoover Pavilion for the care of the mentally ill, it must be taken to have known that it was engaging in an exercise of that kind of police power that was of state-wide concern, and, that, therefore, was subject to the regulatory power of the state, exercised through general laws; that the mode and manner of its exercise by the city of Cleveland could be determined by the state or the function taken over entirely and exclusively by the state. The power of the state was not limited by the fact that the municipality had clearly entered the field. It had full power over the subject unhampered by any prior municipal or state legislation and limited only by constitutional provisions.

Our conclusion is that under Section 1890-16 et seq., General Code, the department of public welfare of the state had full power to bargain with the city of Cleveland for the use and operation of -Hoover Pavilion, that the contract contemplated will be a cooperative arrangement, based upon valuable considerations flowing to the city of Cleveland, as well as to the state of Ohio, fully, authorized by Section 1890-16, General Code.

For these reasons, the judgment is affirmed.

Judgment affirmed.

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

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


source: Caselaw Access Project

author: Washburn, P. J.

license: Public Domain

text:
    Stepanchev, Appellee, v. Kotney, Appellant.
    (No. 3757
    Decided March 6, 1946.)

      Mr. Paul G. Laybourne, for appellee.

      Mr. D. M. Sifting and Mr. A. S. Greenbaum, for appellant.
   Washburn, P. J.

Mike Stepanchev (appellee in this court) sued Mathew Kotney (appellant in this court) on a promissory note, and recovered a judgment upon the verdict of a jury.

The petition was in the short form under the statute, and the answer denied the allegations of the petition, and especially denied “that there was any consideration of any kind for the note attached to plaintiff’s petition. ’ ’

No reply to the answer was filed, and, after the jury had been impaneled, the appellant made a motion for judgment on the pleadings, because there was no reply to' the answer.

The appellee promptly asked the court for leave to file a general denial to the answer, stating that the matter of a reply had been overlooked.

The appellant objected to the granting-of such leave, and, after argument, the trial judge announced that, as the granting of the motion was in the discretion of the court, he would grant the leave to file a reply, which should be simply a denial of the claim of appellant that there was no consideration for the note; and thereupon the attorney for appellee asked the court the following question: “Then may we treat it as filed, or be adjourned to go downstairs and dictate it?” and the court ruled that they would go forward as if the reply had been filed. An exception was taken to the ruling of the court, the claim being that the court’s action constituted an abuse of discretion and was therefore erroneous.

We have read the record, and are of the opinion that there was no abuse of discretion on the part of the court, and that, under the circumstances presented by the record, it would have been an abuse of discretion to have refused the request.

Thereafter, when appellee rested, the motion for judgment on the pleadings was renewed, and counsel for the appellee stated to the court that the reply had been filed, and that statement was not questioned or denied; and the motion for judgment on the pleadings» was again overruled.

Thereafter, at the close of all of the evidence, the appellant again renewed his motion for judgment on the pleadings, which motion was again overruled.

It is now claimed and argued by the attorneys for the appellant, one of whom did not represent bim at the trial, that, regardless of the question of abuse of discretion, it was error to render judgment upon the verdict, because the record in the clerk’s office does not disclose that a reply was actually filed.

In determining that question, we consider not only the certificate of the clerk as to docket and journal entries, but also the record as disclosed by the bill of exceptions, and it is clear from the entire record that the only issue in the ease was that as to whether there was any consideration for the note, and that both parties introduced all of their evidence on that issue, upon the ruling of the court that the reply should be considered as filed; that the appellant admitted the signing and delivery of the note; and that, under the charge of the court, the finding of the jury that the appellee established by a preponderance of all of the evidence that the note was given for a valuable consideration, is not manifestly against the weight of thé evidence.

The only objection made was as to the granting of leave to file a reply, which we hold was properly granted; no objection was made as to the trial of the case without a reply being actually filed or to considering the reply as filed.

We find that, under such facts as are disclosed by the record in this case, the mere fact that the certificate of docket and journal entries does not disclose that a reply was filed, does not warrant the conclusion that there was prejudicial error in the trial of the case.

If no reply is filed to an answer of new matter constituting a defense, and the court, over objection, properly grants leave to file such reply, and, without objection thereto, proceeds to try the cause as though such reply had been filed, it is not prejudicial error to render a judgment on the verdict, although the clerk’s records do not show that such reply was actually filed.

Judgment affirmed.

Doyle and Stevens, JJ., concur.


author: Miller, J. Hornbeck, P. J.,

text:
    Gorey, Appellee, v. Gregg, Exr., Appellant.
    (No. 155
    Decided October 31, 1945.)

      Mr. C. C. Crabbe and Mr. Justin L. Sillman, for appellee.

      Mr. D. H. Jackman, for appellant.
   Miller, J.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Madison county, Ohio. The action was one wherein the plaintiff sought to recover from the executor of the estate of H. Alice Calhoun, deceased, the reasonable value of services rendered by the plaintiff to the decedent during a period extending over seven and one-half years up to the decedent’s death.

The petition was one based upon an express contract for the reasonable value of the services performed.

The first defense admitted all formal allegations and denied generally the contract, the services and the value. A second defense alleged the kinship of plaintiff and decedent as niece and aunt, respectively; that their mode of living constituted plaintiff a member of decedent’s family; and that any services rendered by plaintiff in the household were gratuitous and for the mutual benefit of both parties.

A general denial was filed in reply.

Near the close of the plaintiff’s case in chief, she moved for leave to amend at bar so as to declare upon an implied contract instéad of an express contract. Leave was granted over defendant’s objection.

A will executed by decedent in 1929, making some provision for plaintiff, but without any statement as to such provision being compensation for services rendered, was admitted in plaintiff’s behalf over defendant’s objection. A second will of decedent executed in 1941, making some different provision for plaintiff, but also without any explanation as to its being compensation for her or an acknowledgment of services rendered, was received in plaintiff’s behalf over the defendant’s objection. Plaintiff also offered a deed, executed in 1943 by decedent, conveying a farm to James and Ruby Timmons, who were also beneficiaries under the will, and reciting a consideration of “one dollar” and “other consideration.” That deed made no mention of plaintiff and did not mention compensation or services. It.was admitted, over defendant’s objection.'

Defendant moved for a directed verdict at the close of the plaintiff’s evidence and the motion was overruled. Evidence was then offered by the defendant and, there being no rebuttal, defendant renewed his motion for a directed verdict at the close of all the evidence. That motion was overruled and the matter was submitted to the jury which returned a verdict for the plaintiff. Motion for new trial was overruled and judgment was entered on the verdict.

The record discloses that the decedent was an old and feeble woman, being^ 85 years of age at the time of her death. Her husband died before her and left her some real estate, including farms as well as other property. She was all alone and had no close relatives, although she had several nephews and nieces. She had no one to take care of her but was greatly in need of assistance. Shortly after her husband’s death, she tried to get her niece, the plaintiff, to come and live with her in the country and look after her, for which she offered to give the plaintiff the sum of $1,000. That offer was not accepted by the plaintiff. Thereafter, from time to time leading up to the middle of November 1936, the decedent tried to get the plaintiff to come and look after her and on several occasions the decedent exhibited a will and discussed its provisions with the plaintiff under which the decedent left her, upon the death of testatrix’s husband, a half interest in all her real estate and farms during her life and to her heirs, as well as a cash bequest of $1,500. That will was executed on the 18th day of October 1929. Later, the decedent acquired a house in West Jefferson and the plaintiff and her husband moved in with her. The husband moved out of the house by the end of the year of 1936, but the plaintiff stayed on looking after the decedent up to the time of her death on January 5, 1944.

In the fall of 1937, when the plaintiff threatened to leave, the decedent said, “You are going to stay here with me. I need you and you stay here and take care of me and I will see that .you always have a home and are taken care of.” At another time the decedent said, ‘ ‘ She could do more for her than Mr. Gorey [her husband] could, and she intended.to.”

The decedent depended upon the plaintiff’s aid and care to such an extent that she would not evén let her go to look after a relative’s wife during a temporary illness, the decedent saying that there would he no one to take care of her if the plaintiff went away. The record discloses that the character of the services which the plaintiff had to perform for the deceased was burdensome and loathsome, and that everything conceivable was done to make the last seven and one-half years of the decedent’s life as pleasant and comfortable as possible. The plaintiff took care of the house and did all the washings which were quite voluminous, as the decedent suffered from some kidney ailment as a result of which she unfortunately lost her control. No beneficences, which are usually exhibited between members of a family, ever flowed from the decedent to the plaintiff. Once when the plaintiff required the services of a physician the decedent notified him that she was not responsible and would not pay the bill. The record also discloses that on one occasion when the decedent had a guest for dinner, the plaintiff was not allowed the same food as was consumed by the decedent and her guest.

The first error assigned was the permitting of plaintiff to amend her petition at bar so as to change her cause of action from express contract to an implied contract. The original petition álleged in part, “H. Alice Calhoun agreed with plaintiff that if the plaintiff would move into the home of the said H. Alice Calhoun, look after the household duties and care for the decedent during her lifetime she would pay plaintiff what said services were reasonably worth * * *.’’’

During the progress of the trial, counsel for the defendant questioned whether the plaintiff was proceeding on the theory of quantum meruit or recovery under an express contract. In order to clarify that proposition the plaintiff was granted leave to amend at bar, the amendment alleging in part, “at the instance and request of the said H. Alice Calhonn the plaintiff moved into the house of the said H. Alice Calhoun and at her instance and request looked after the household duties and cared for the decedent during her lifetime; and at her instance and request, the plaintiff became the household servant and took care of the house * * etc.

It is urged by the defendant that such amendment had the effect of substantially changing the plaintiff’s claim for services rendered and therefore was not permitted under the liberal provisions of Section 11363, General Code. It is also claimed that it necessarily follows that the plaintiff’s claim for her services rendered as asserted by the amendment was never “presented to the executor for allowance,” since the claim for services rendered, which the executor admits was presented to and rejected by him, must be presumed to be a claim for services rendered under an express agreement.

Under the provisions of Section 11363, General Code, the trial court may, in its discretion, allow amendment before .or after judgment in furtherance of justice when the amendment does not substantially change the claim. The plaintiff’s claim was for a named sum as compensation for services rendered to decedent in the nature of household work and nursing care over a stated period of time. The evidence offered in support of that claim proved an implied agreement to pay. The claim was identical whether the evidence had established an implied or express agreement to pay for the services rendered. The amount was the same. The parties involved were identical. The services rendered were the same and they were rendered for and on behalf of and at the request of the same person.

In the case of Bolsinger v. Halliday, 4 Ohio App., 311, the court, in the first paragraph of the syllabus, said:

‘ ‘ The substitution, by apt allegations in an amended petition, of an express agreement for an implied agreement to do the same thing, is not a departure from the cause of action in the first instance, but merely provides a different method of proving the action already in court.”

In the discussion of the subject of express and implied contracts in 9 Ohio Jurisprudence, 240, Section 8, the following statement is made:

“A contract can be made either expressly or by implication. The form of the contract, whether implied or express, has been said to be only the mode of proving the cause. It is evidence that the cause of action exists, but it is not itself the cause of action. A written instrument is not the contract; it is merely evidence thereof * * *. An express contract and a contract implied in fact differ only in the mode of proof.”

It is our conclusion that the amendment allowed by llie court during the course of the trial did not change the cause of action and the amendment was proper. Therefore, the. claim that was presented to the executor under Section 10509-112, General Code, was the same claim which is the basis of this action and the same was properly submitted.

The second, third and fourth assignments of error are that the trial court erred in admitting the wills and deed in evidence.

We are of the opinion that those exhibits were properly admitted. They were offered as reflecting on the question of whether the plaintiff went to the decedent’s home merely as a matter of “family relationship” and rendered service as an incident thereto without any expectation of compensation, or whether the plaintiff was induced to come to look after the decedent not as a matter of rendering gratuitous services but with the intention on her part to receive and on the decedent’s part to compensate her for those services. If they reflected at all on that issue all were to be considered together, and all were to be considered in the light of the other expressions of intention by the decedent to compensate the plaintiff for the services rendered. A party may not successfully complain of error unless his interests are prejudiced thereby. The trial court carefully charged the jury on the subject of those exhibits, in the following language:

“Certain exhibits have been introduced in evidence in this case. I refer to the wills and deed. I charge you that those documents are not in issue in this case as to their merit or failure as such, but they are admitted and may be considered for one purpose, and that only, and that is, that they may be considered insofar only as they reflect, if they reflect at all, on the issue in this case ns to whether or not the services of the plaintiff were rendered gratuitously.”

It is, therefore, our conclusion that those exhibits were properly admitted in evidence. Moreover, their admission was not prejudicial to the defendant. They showed substantial bequests to plaintiff, and, by the latter will which was probated, she received $1,000 and a residuary share. Defendant could well argue that she had been compensated.

The fifth and last assignment of error was the overruling of defendant’s motion for a directed verdict at the close of plaintiff ’s evidence and again at the close of all the evidence.

Counsel for the defendant contends that a verdict should have been directed on the theory of “family relationship” or failure to prove “a meeting of the minds” on an implied contract. Those were both factual questions properly submitted to the jury and which the court covered fully in its charge. The charge was fair and complete. The jury’s verdict was supported by the evidence. We find no prejudicial error, and the judgment of the trial court is affirmed.

Judgment affirmed.

Montgomery, J., concurs.

Montgomery, J., of the Fifth Appellate District, sitting by designation in the Second Appellate District.

Hornbeck, P. J.,

dissenting. It is violating no confidence to say that in reaching a decision in this case the members of this court have had difficulty and no one of us has that certitude of opinion which ordinarily attends in disposing of appeals.

The errors assigned upon which I differ from the conclusions of my associates are those relating to the admission of the two wills of testatrix, her deed to James Timmons and Buby Timmons and the charge of the court as to the purpose for which they were admitted. Plaintiff’s action as eventually submitted to the jury was upon an implied contract on quantum meruit.

The action, being on quantum meruit, was for the reasonable value of services rendered under the contract pleaded which, manifestly, was the full value of such services. Plaintiff prayed for a judgment of $5,575.70 with interest and the verdict and judgment in her behalf are in that sum in its entirety.

The instruments under consideration are plaintiff’s exhibits A, B and C. The first is the will and testament of H. Alice Calhoun, executed on October 18, 1929. By the third item thereof a life estate in all real estate of testatrix was given to her husband, Alvah Calhoun, and at his death a remainder in such estate “to James Timmons and Hannah Corey [plaintiff herein] in joint ownership during their natural lifetime, then at their death to their legal heirs.” By the fourth item, Hannah Corey was bequeathed, subject to the life estate of the husband, the sum of $1,500. On or about November 15, 1936, plaintiff went to live with H. Alice Calhoun. The latter’s husband had died, probably in March 1936, and the first conversation between plaintiff and testatrix, during which the will was displayed, occurred about a month after his death but the will had been executed almost seven years prior to this conversation.

The second will was dated June 6, 1941, a little less than five years after plaintiff had gone to live with testatrix. By the terms of this will, under the third item thereof, Hannah Timmons Corey was bequeathed $1,000 and the twelfth item provided that testatrix’s farms and her house in West Jefferson should be sold and the proceeds from these properties divided, share and share alike, among nine named beneficiaries, one of whom was Hannah Timmons Corey. The deed from H. Alice Calhoun to James Timmons and Ruby Timmons was dated July 28,1943, and transferred two farms in Jefferson township, Madison county, Ohio, one of 90.40 acres, the other of 92.35 acres.

There is no claim that the plaintiff had any knowledge during the lifetime of H. Alice Calhoun of the execution of the second will or the deed.

The second will has been probated and the estate is being administered by defendant executor.

The nature and extent of testatrix’s estate do not appear nor did the jury have any means by which it could determine the relative value of the bequest and devise to plaintiff in the first will as compared to the bequest and devise in the second will and the jury was specifically charged that the “documents are not in issue * * * as to their merit or validity as such, * * *.” Testatrix died on January 5, 1944.

Independent of the wills and the deed, there is substantial controversy in the record upon every issue made by the pleadings. The nature and extent of the services rendered, the state of health of H. Alice Calhoun, whether she*did-her own work, and the extent to which she was incapacitated by her sickness are at variance upon the record. Whether plaintiff was a member of the family and maintained her separate establishment, in part at least, or was in the service of H. Alice Calhoun is at issue. So that, upon the whole record, the effect which the jury gave to the wills and the deed may well have been the deciding factor in the verdict. If they were improperly admitted, it was prejudicial to the defendant.

In Richards v. Cleveland Jewish Orphan Home, 22 Ohio App., 475, it was held that error is prejudicial unless there is some fact in the record which affirmatively shows that it is not prejudicial. The case of Ridenour v. Biddle, 10 C. C. (N. S.), 438, 20 C. D., 237, holds, “where error is shown — prejudice is presumed.” See, also, Lake Shore & Michigan Southern Ry. Co. v. Litz, 18 C. C., 646, 6 C. D., 285; Gentile v. Cincinnati St. Ry. Co., 4 N. P., 9, 6 O. D. (N. P.), 111; Baldwin v. Bank of Massillon, 1 Ohio St., 141; Lowe v. Lehman, 15 Ohio St., 179; Taylor v. Boggs, 20 Ohio St., 516; Board of Education v. Mills, 38 Ohio St., 383.

At the time that the first will was exhibited to the plaintiff by H. Alice Calhoun, it had been a completed and executed instrument for seven years. Any purpose which actuated H. Alice Calhoun in making the plaintiff her beneficiary had operated and had been effective long before the conversations during which the will was displayed. The jury was given the right to draw an inference that from the exhibit of this will to plaintiff under the circumstances she was to be paid for the services to be rendered. What inference may be drawn from these facts? To indulge any other than that there was created a friendly atmosphere between the parties because of the beneficence of H. Alice Calhoun already indicated, as appeared in her will, is but speculation. It is not urged that H. Alice Calhoun said, nor may it be implied, that if. plaintiff would come to live with her she would retain the provisions of her will as they then were and would leave it unchanged at her death, or that if plaintiff would not come to live with her she would revoke the will. To permit the jury in this situation to consider the wills “as they reflect, if they reflect at all, on the issue * * * whether or not the services of the plaintiff were rendered gratuitously” was prejudicial to the defendant for the reason that the jury was permitted to draw an inference which could not logically be drawn. I might conclude at this point because if the first will was inadmissible, the second will and deed could not be, although the converse of this proposition is not true.

The existence of the second will and of the deed was never known to the plaintiff. The second will, if it had any probative effect at all, which on the cause of action as pleaded it did not, permits the inference that the original contract incident to the first will, if made, had been disregarded by testatrix and that she had modified this agreement to the extent that she changed her bequest and devise to the plaintiff in the second will. The deed did not reflect at all upon the question whether the services rendered by the plaintiff to H. Alice Calhoun were gratuitous or otherwise. Its only effect was to show that testatrix had thereby decreased the value of her estate and of the devise in item 12 of the second will.

If I am mistaken in concluding that the wills should not have been admitted and it be assumed that the first will has some value upon any material element in this case and that it tends to establish that the benefits thereof were to be assured to the plaintiff if she came to live with II. Alice Calhoun, then the plaintiff may not be heard to say, if testatrix performed her part of this agreement, that her estate • should not have the benefit to the extent of that performance*.

Let us assume that an express oral agreement was established whereby, for the services to be rendered by plaintiff, H. Alice Calhoun was to make a will containing the identical provisions found in her first will. Let us further assume that such a will had been executed by decedent, and upon her death was probated ¡and her estate was administered according to her will. Could plaintiff maintain a recovery for the full value of services rendered to decedent without regard to the benefits which she received under the will made pursuant to the contract? I'believe the answer is obvious.

In Reynolds v. Robinson, 64 N. Y., 589, 593, 594, it was held that where services are rendered in consideration of the promise to compensate therefor by bequest to the person rendering them, and a bequest is in fact made, an action may nevertheless be maintained to recover for the value of the services rendered, and in such action the main question to be determined is whether the provision in the will was sufficient to pay for the services. If it is, the plaintiff must be defeated in the action. If not, then plaintiff is entitled to recover the balance after deducting the legacy.

This case is not in the class of those of Walters, Admr., v. Heidy, 1 Ohio App., 66; Ortman, Exr., v. Ortman, 17 Ohio Law Abs., 525; Miner v. Grove, Admr., 30 Ohio Law Abs., 93, and Henderson v. Stroup, Exr., 32 Ohio Law Abs., 605, for the reason that the cause of action upon which plaintiff here elected to proceed is not based upon a promise to will property for services to be rendered. In each of those cases there was a promise to pay for services rendered by the making of wills and a failure on the part of the promisor to perform. In the instant case, if the second will means anything, it shows a performance by the promisor pro tanto of the agreement to make a will, a theory which must be given consideration if the wills and deed are to be brought into evidence.

There cannot logically be a separation between the contract to make a will, if any, implied from the transaction respecting the first will and one element of that contract, namely, a purpose on the part of the testatrix to pay for the services by making the will. This is true even though a suit in specific performance or an action for damages may, not be maintained on the contract to make a will.” Herein is found further prejudicial effect in admitting the first will as it may reflect upon the question whether the services were rendered gratuitously. A juror could-not have made such distinction. In fact, it may not be made.

When this first will was admitted, followed by the introduction of the second will and the deed, it was prejudicial to the defendant because in all probability the' jury reasoned that under the first will, if not revoked, plaintiff would have received a much greater proportion of decedent’s estate than she received by the second will which became effective, and that the deed removing two farms from the decedent’s estate further reduced that which plaintiff would have received had the contract been carried,out. Of course, there is nothing in the record upon which the jury could properly have made a determination as to the comparative value of the first devise as related to the devise to plaintiff in the second will, because neither the legal effect thereof nor the value of the respective devises was known to the jury.

The case of Fell, Admr., v. Carter, 16 C. C. (N. S.), 241, 26 C. D., 511, is cited and discussed by counsel. In that case the'action was to recover compensation for personal services rendered a deceased person, but there was no claim that there had been any promise to compensate by will. The defense sought to show payment for the services by introducing the will of decedent wherein the sum of $400 was given to the plaintiff. Manifestly, the will was not admissible. The analogy to be drawn between the cited case and the instant cause is that here the cause of action apparently proceeds upon the theory of an implied contract to pay for services rendered without respect to the wills. If the case was restricted to that theory, then the defendant could not offer provisions for plaintiff in the second will in partial or total satisfaction of plaintiff’s claim. However, plaintiff’s bringing of the wills into the case requires that, if properly presented to the jury, the full effect of the second will and the provisions thereof under all the circumstances be adjudicated under a proper charge. The jury had not sufficient evidence or sufficient information as to the law controlling its determination of the issues brought into the case by the admission of the wills.

The judgment should be reversed and the cause remanded with opportunity to the parties to try the case upon the proper theory, so that the court might have opportunity to fully acquaint the jury with the law controlling its deliberations.


author: By the Court.

text:
    Miller, Appellant, v. Miller, Appellee.
    (No. 646
    Decided April 9, 1946.)

      Mr. George W. Porter, for appellant.

      Mr. T. A. Billingsley and Mr. Jesse K. Brumbaugh, for appellee.
   By the Court.

TMs is an appeal on questions of law from a judgment of the Court of Common Pleas of Darke county, Ohio. The action was one for divorce, alimony and settlement of property rights. The court granted a divorce to the plaintiff on the grounds of gross neglect of duty and extreme cruelty. This cause is appealed for the reason that the court erred in refusing to allow alimony to the plaintiff and in giving the property of the plaintiff to the defendant contrary to the facts and the statute. No issue is raised in this court as to the divorce decree granted by the court below.

The record discloses that the parties herein were married on December 20, 1939; that at the time of her marriage the plaintiff was the owner of certain household goods and some other chattels as well as cash on deposit in the bank; that the defendant was the owner of a five-acre tract of land and a small amount of chattel property; that some of the plaintiff’s money was used in the construction of a house on the five-acre tract of land; that in order to secure the plaintiff’s investment in the property the defendant in 1940 made and delivered to the plaintiff a deed for the undivided half -of the five-acre tract; and that the undivided half interest is still in the possession of the plaintiff subject to an order of sale by the court below.

The record further discloses that during the years 1943, 1944 and 1945 both of the parties herein worked in a factory in Dayton, Ohio, each earning approximately $5,000 per year. Prior'to the marriage it was agreed that the plaintiff was to be the custodian of all the moneys earned by these parties and this was accordingly done.

The récord discloses further that at the time the court below granted the divorce all the property owned by the parties herein amounted to approximately $9,500, the real estate being appraised at $6,000 and the remainder being cash on hand, bonds and other personal property. The court in making distribution of the property deducted.the first $1,000 from the sale of the real estate and gave this to the defendant. The balance of the sale price of the real estate was to be distributed equally between the plaintiff and the defendant. This divesting of the plaintiff of part of her interest in the real estate is claimed to be error.

The record discloses further that the total award to the defendant amounted to approximately $5,300 and that to the plaintiff amounted to approximately $4,200. The decree of divorce makes no mention of alimony and the fact that the defendant was granted approximately $1,100 more than the plaintiff from jointly held properties would indicate to us that no alimony was granted to this plaintiff. Section 11990, General Code, provides:

“When a divorce is granted because of the husband’s aggression, the court shall * * * allow such alimony out of her husband’s property as it deems reasonable * * *.”

It is our conclusion that this express admonition and requirement of the statute was not observed. The court could well have made the property division which is carried in the entry if the decree had been granted to the husband for the wife’s aggression, because it is nothing more or less than an attempted equitable division of their property. Alimony begins when the court requires the payment to be made to a party from the aggressor’s property, money or earnings. This court adopted that theory only recently in the case of Fisher v. Fisher, ante, 125, 64 N. E. (2d), 328.

We are of the further opinion that the trial court had no power, in the absence of agreement between the parties, to divest the plaintiff of title to her real estate by giving the defendant the first $1,000 of the proceeds received therefrom.

The judgment of the trial court is reversed and the court is ordered to redistribute the property by making an award of alimony which is reasonable and in conformity with the statute.

Judgment reversed.

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


text:
    Bartlett, Appellee, v. Snouffer, Appellant.
    (No. 3873
    Decided December 17, 1945.)

      Mr. William Harvey Jones, for appellee.

      Mr. J. Paul McNamara and Mr. Paul R. Oingher, for appellant.
   By the Court.

This cause is submitted on motion of the plaintiff, appellee herein, to dismiss the appeal for the reason that the defendant has not perfected his appeal in the manner provided by the Appellate Procedure Act, Section 12223-1 et seq., General Code, in that he has failed to file notice of appeal with the trial court and with the court to which the original appeal was made, to wit, the Common Pleas Court of Franklin county, Ohio.

The action was one in forcible entry and detainer filed with the justice of the peace of Sharon township, Franklin county, Ohio. Judgment was rendered for the plaintiff on the 31st day of August, 1945. The defendant, appellant herein, undertook to appeal on questions of law to the Court of Common Pleas, but filed no notice of appeal with the justice of the peace or in the Common Pleas Court. However, he applied to and obtained from the Common Pleas Court “leave to file” his appeal in that court under the provisions of Section 10459, General Code. It was the contention of the defendant that such leave to file-gave the Court of Common Pleas complete jurisdiction to hear the appeal on its merits and that it was not necessary to file notice of appeal either with the justice of the peace or the Common Pleas Court.

A similar motion to dismiss the appeal in the Common Pleas Court on the same ground as is urged in this motion was sustained.

We are of the opinion that this court has no jurisdiction of this appeal because it has not been perfected in the manner provided for in Sections 12223-4 and 12223-7, General Code. Section 12223-4 provides :

‘ ‘ The appeal shall be deemed perfected when written notice of appeal shall be filed with the lower court, tribunal, officer or commission. Where leave to appeal must be first obtained, notice of appeal shall also be filed in the appellate court. After being duly perfected, no appeal shall be dismissed without notice to the appellant, "and no step required to be taken subse.quent to the perfection of the appeal shall be deemed to be jurisdictional.”

In order to perfect the appeal it was necessary to obtain leave to file the appeal in the Common Pleas Court under provisions of Section 10459, General Code, and also to file the notice of appeal with the justice of the peace as well as in the Court of Common Pleas. Since the latter two notices were not filed, Section 12223-4, General Code, was not complied with and the Court of Common Pleas acquired no jurisdiction. See State, ex rel. Curran, v. Brookes, 142 Ohio St., 107, 50 N. E. (2d), 995; Loos v. W. & L. E. Ry. Co., 134 Ohio St., 321, 16 N. E. (2d), 467; Strevey v. Williams, 33 Ohio Law Abs., 266, 35 N. E. (2d), 469.

_ The case of Homestead Loan & Savings Assn. v. Lowe, 35 Ohio Law Abs., 40, 39 N. E. (2d), 207, decided by this court, was an appeal from a judgment of the Municipal Court in a forcible entry and detainer case. There was no notice of appeal filed in the Municipal Court, but there was a petition in error and notice of appeal filed in the Common Pleas Court. There the court said:

“An examination of the notice of appeal directed to the judgment of the Municipal Court discloses that it was at no time filed with the Municipal Court, but instead, was filed in the Common Pleas Court. The statute, Section 12223-4, General Code, is explicit to effect that ‘the appeal shall be deemed perfected when written notice of appeal shall be filed with the lower court * * V This is a jurisdictional requirement and filing of the notice in any other court will not meet the requisites of the statute.”

The defendant is opposing this motion for the reason that it is not claimed that there is any defect in the proceedings by which he perfected the appeal from the Common Pleas Court to this court, and therefore the motion to dismiss this appeal is without merit. We cannot agree with this view of the defendant, but are of the opinion that the motion is in order. The question of jurisdiction may be raised at any time. By noncompliance with Section 12223-4, General Code, jurisdiction was never conferred upon the Common Pleas Court and likewise it cannot be conferred upon this court.

For the foregoing reasons the motion to dismiss the appeal is sustained.

Motion sustained.

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


author: By the Court. Ross, J.,

text:
    Rotte, Appellant, v. Meierjohan, Appellee.
    (No. 6675
    Decided July 1, 1946.)

      Mr. John C. McCarthy, for appellant.

      Mr. Nathan Colinger, for appellee.
   By the Court.

The plaintiff and defendant were tenant and landlord. The plaintiff sued to recover damages on account of personal injuries received by him, as a direct result of the failure of defendant to perform his duty as a landlord. A verdict for the plaintiff was returned, and, on the defendant’s motion, the court rendered judgment in his favor notwithstanding the verdict. The reasons for the court’s action and the authorities upon which he relied were set forth in the opinion handed down at the time, from which we quote:

“The facts indicate that sometime prior to August 20, 1943, the defendant purchased an apartment building, on Southern avenue in Cincinnati and that at the time of the purchase the plaintiff and the members of his family occupied a third floor front apartment in the building under an oral month-to-month arrangement. No evidence was offered on behalf of the plaintiff to prove that the original owner, or the defendant as the subsequent landlord, retained any control over' the premises rented to the plaintiff or agreed to make repairs on said premises. There was evidence that on a few occasions a caretaker of the defendant, upon request of the plaintiff, made minor plumbing and other repairs which, as stated, were not made under any agreement upon the part of the defendant, to make such repairs.

“The law is clear that in a case in which repairs are voluntarily made by the landlord, such fact is not an admission of liability on his part to make repairs generally and to keep the premises in repair. 36 Corpus Juris, 209.

“We must now consider whether or not under the facts of this case and the law pertaining thereto the metal iron guard described in the petition was part of the premises leased to the plaintiff. If it was part of the leased premises there was no obligation on the part of the defendant to repair it. If it was not part of the leased premises and the defendant retained -possession and control over it then it was his duty to exercise ordinary care to keep the same in a reasonably safe condition.

“The facts show that the building in question was an old fashioned, semi-obsolete type structure in which the front windows began near the ceiling and extended to within about seven inches from the floor. Before the defendant purchased the property a metal iron guard had been placed across the opening outside a window of the front room of the premises occupied by the plaintiff, but the evidence does not show how this guard was attached to the window or building, and the record is silent as to any arrangements made by the defendant to take care of or repair the guard. The record is equally silent as to any arrangement of the parties to have the guard included as a part of the leased premises.

“The evidence and exhibits do, however, show that there is no porch or other part of the building outside the front windows of the plaintiff’s apartment which are used by the defendant or other tenants of the building, and it is reasonable to infer that the only purpose in constructing the iron guard was to prevent persons or articles within the plaintiff’s apartment from falling through the window and to protect those in the yard below from articles which might fall through the window in connection with the use of the apartment by the plaintiff and other tenants of that particular apartment.

“The iron guard, therefore, was an integral part of the apartment leased to the plaintiff.

“The authorities clearly support this conclusion. The rule is stated in 36 Corpus Juris, 30, Section 632-2, as follows:

“ ‘As a general rule everything which belongs to the demised premises or is used with, and appurtenant to, them and which is'reasonably essential to their enjoyment passes as an incident to them, unless specially reserved.’

“If the metal guard was part of the premises leased, to the plaintiff the defendant, under the facts of this case, was not obligated to repair the same. In the absence of fraud or concealment by the lessor of the condition of the property at the date of the lease, there is no implied warranty that the premises are tenantable or even reasonably suitable for occupation, and the rule of caveat emptor applied. 36 Corpus Juris, 43, Section 659-5; 24 Ohio Jurisprudence, 918.”

For the reasons and upon the authorities set forth in the quotation, we affirm the judgment.

Judgment affirmed.

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

Ross, J.,

dissenting. This is an appeal on questions of law from a judgment of the Court of Common Pleas of Hamilton county in favor of the defendant. The plaintiff filed a petition in the action on June 5, 1944, alleging that the defendant was the owner of certain premises which plaintiff rented, that a grating or grill across a window in such premises was defective, that his son leaned against such grill, which gave way, and plaintiff, in attempting to save his son, lost, his balance and was precipitated to the ground suffering severe injuries for which he seeks compensation.

In his answer the defendant admits the tenancy of the plaintiff and, although the petition contained no allegation of covenant to repair, the defendant alleges that no such covenant existed.

Defendant alleged further a mere conclusion of law to the effect that such guard rail was under the sole custody and control of plaintiff as a part of such premises rented by plaintiff.

The defendant also made that wholly irrelevant and immaterial claim of sole negligence.

Stripped of its conclusions and immaterial and irrelevant allegations, the answer consists merely of a denial of negligence on the part of the defendant.

The plaintiff filed no reply to the answer of defendant. ■

Trial was had to a jury, resulting in a verdict in favor of the plaintiff.

Upon motion non obstante veredicto, the court rendered judgment for the defendant.

Even if the question of covenant to repair was made an issue in the case, which is not found by this court, tfioro was no evidence of such a covenant.

In addition to the issue of contributory negligence of plaintiff, the only question presented, therefore, is whether the grill or guard was a part of the premises rented by plaintiff or, on the contrary, was under the sole control and custody of the defendant as owner of such premises.

It appears from the evidence, including photographs of the building, that the premises rented by plaintiff were located on the third or top floor of the building and were the center of three front apartments, and that a metal grill extended across one of the two windows of plaintiff’s apartment. This grill was fastened to the brick wall, constituting the front or face of the building. The sides of the grill were fastened to the sides of a recess provided for the window. The grill was outside the window and some few inches from it. There were in fact two offsets or recesses, the outside recess being entirely of brick and the inside recess being occupied by the frame work of the window jams. The grill was fastened in the outside recess.

It is apparent, therefore, that the grill work was as much a part of the outside wall as if the brickwork instead of the metal grill had bridged the opening in front of the window. There was no defect in the grill. The fastenings in the wall were insecure.

In Friedl v. Lackman, 136 Ohio St., 110, 23 N. E. (2d), 950, it is stated that “the sash cord and all parts of the windows, other than the glass itself, are to be considered as the outside of the building.” The limitations of that case are fully recognized, in that it involved the construction of a contract and injury to a pedestrian upon the sidewalk. However, the reasoning and conclusion of the court seem pertinent to tb.fi instant question. The defectively fastened grill, therefore, was a part of the outside of the building, and under the control of the owner, who was responsible for the defective condition thereof, of which he had knowledge.

It must be admitted the authorities are not in accord upon the question of whether in the absence of specific agreement the outside walls of a building are . to be considered as part of premises rented .to a tenant thereof. The situation is not here presented of the renting or leasing of an entire building. Consideration of the law applicable to such .situation is not here involved..

Here is presented a building consisting of three stories or floors each of which is divided into a number of apartments. If the- contention of the defendant is correct, then this structure is divided into as many sections as there are tenants. These sections consist of compartments, cut out of the whole. The rented premises having outside walls, the sides of the building' are divided into as many and as large areas as the rented apartments occupy on such sides.

In other words, under the conditions here presented, the faces of the building would consist of a number of individually leased areas, over which the defendant claims he had released control by renting the particular apartment to a tenant.

It seems clear that such position may not be sustained. Each several section of the face of the building is dependent upon the other, either for support or protection. The whole wall or face of the building is in common use by all of the several tenants whose apartments have outside exposures. No one section of the face of the building, because confining any particular apartment, can be said to be' isolated from or independent of the remaining portion of the face of the building. It must be obvious, therefore, that there being a common use of the face of the building it remains, in the absence of agreement, under the control of the owner who is responsible for negligence in failing to keep the same in repair.

The evidence clearly shows that the owner, through his agent, had had knowledge of such defective grill ■which was insecurely fastened for some considerable time.

It does not appear in the record upon what basis the court set aside the verdict and rendered judgment for the defendant. It is stated in briefs of the defendant that the trial court wrote a ten-page opinion in deciding the motion non obstante. Such opinion does not appear among the papers and is not set out in the briefs.

If it was upon the basis of control by the tenant, the evidence did not sustain such conclusion. If it was upon the basis of contributory negligence, the evidence did not sustain that conclusion.

Upon the latter point, it appears that the plaintiff was aware of the defective condition of the grill and when the days became warmer raised the lower sash of the window in front of the grill; that the lower side of the window was only a few inches from the floor; that his son, a young child, being attracted by someone on the street, leaned against the grill; that it gave way; and that plaintiff, in trying to save his son from falling, lost his balance and fell with his son to the ground below.

Whether the plaintiff was guilty of contributory negligence in leaving the window open, knowing of the defective grill, is, under all the circumstances of the case, a question for the jury. Certainly, this court cannot say as a matter of law that such conduct of plaintiff amounted to contributory negligence. The trial court overruled the motion of defendant for a new trial. In such action, it is my opinion that there was no error.

It appears that the action of the plaintiff in reaching for his child was a mere reflexive movement and was performed without the slightest opportunity for reflection. Woodward v. Gray, 46 Ohio App., 177, 185, 188 N. E., 304; Pennsylvania Co. v. Langendorf, 48 Ohio St., 316, 28 N. E., 172, 29 Am. St. Rep., 553, 13 L. R. A., 190; Pittsburgh, C., C. & St. L. Ry. Co. v. Lynch, 69 Ohio St., 123, 68 N. E., 703, 100 Am. St. Rep., 658, 63 L. R. A., 504.

The judgment in my opinion should be reversed and judgment should he entered for the plaintiff upon the verdict.


author:
Hornbeck, P. J.
      By the Court.

text:
    Hanes et al., Appellees, v. Block et al., Appellants.
    (No. 3832
    Decided October 15, 1945.)

      Mr. Davicl T. Keating, for appellees.

      Mr. Barry Kohn and Mr. William Wasserstrom, for appellants.
   Hornbeck, P. J.

This is an appeal on questions of law from a judgment of the Municipal Court of Columbus in favor of plaintiffs and against defendants, in the sum of $1,000 and costs. The cause was submitted to a judge and jury upon the issues drawn by petition and answer and cross-petition.

The petition alleges an express oral contract between the parties whereby the plaintiffs were to operate and conduct a restaurant in the west half, and adjoining a cafe in the east half, of 1184 and 1186 West Broad street, operated by defendants under the name of Bruce Grill and Lunch; that plaintiffs were to own and receive the net profits of the operation of the restaurant; and that the defendants were to own'and receive the net profits from the operation of a juke box, weighing scales and cigarette machine.

It is specifically alleged that defendants agreed to, and orally reaffirmed, this agreement with plaintiffs,, that in the event defendants, at any time, should desire to sell, lease or dispose of the restaurant business at 1186 West Broad street, they would pay to plaintiffs $500 in cash and give the plaintiffs reasonable notice and reasonable time to leave and re-establish themselves in the restaurant business elsewhere, without loss.

It is averred further. that in the operation of'the restaurant plaintiffs showed a profit which increased monthly until it amounted to approximately $450 for the month of May 1944; that on or about the 15th of .June 1944, without any warning and without any notice to plaintiffs, defendants made a sale, lease or disposition of the restaurant to a third party and locked the door on plaintiffs on or about the 16th day of June 1944.

It is averred further that, although the plaintiffs have sought to re-establish themselves in the restaurant business at a proper location, they were not able to do so until the 16th day of July 1944, and they thereby lost in that period of time the sum of $600; and that when plaintiffs were locked out and barred from their restaurant by defendants and when the new party entered therein, stocks, merchandise and supplies of various kinds belonging to plaintiffs were taken over and converted to the use of the defendants and the new party, in the reasonable value of $360.

The prayer is for judgment for $1,400 damages.

The answer'admits that plaintiffs were in the employ of the defendants and, as compensation for their work and labor, plaintiffs received their food and the net amount of cash remaining after payment of costs. Defendants plead full performance of all their obligations under their contract and generally deny every allegation of the petition not expressly admitted.

. There.is also a cross-petition which it is not necessary to set forth because there is no cross-appeal.

When the cause- came on for trial, defendants moved to strike from the files the demand for jury trial filed by plaintiffs on February 26, 1945, for the reason that the same was filed untimely and in violation of the rules of the court, numbers 21 and 17.

The court overruled, that motion and granted the demand of plaintiffs for jury trial. This action of the trial judge is the first error assigned.

The record discloses that counsel for defendants, appellants herein, did not observe that portion of rule 21 of the Municipal Court which provides that a demand for jury trial shall be filed not later than seven days after the date for filing the answer as fixed by Rule 17.

It is urged that the rule was promulgated under authority of Section 1558-64, General Code, authorizing the Municipal Court of Columbus to formulate a rule providing how long before the trial a demand for a jury should be made. We are cited to Goldberg Co. v. Emerman, 125 Ohio St., 238, 181 N. E., 19, which supports a rule providing how long before the trial a demand for a jury should be made and requiring such demand to be in writing as constitutionally valid. That does not reach our immediate question, namely, were defendants prejudiced by the action of the court in waiving the strict provisions of the rule. The enforcement of rules of court, whether made by reason of the courts’ inherent power or under statutory authorization, is uniformly held to be within the sound discretion of the courts.

It would be difficult to hold that the defendants were prejudiced by the action of the court in permitting the plaintiffs to have their cause submitted to a jury. Sargent v. Corbley, 7 C. C. (N. S.), 226, 18 C. D., 125.

We are satisfied that there was no abuse of discretion on the part of the trial judge in overruling the motion of defendants, and that they were not prejudiced by such action.

The second error assigned is misdirection to the jury by the court in the general charge, and particularly this language:

‘ ‘ There is in law what is called an implied contract; that is a situation in which parties, by their conduct, give each other to understand that they will do certain things without actually expressing them. If the jury should find that an implied contract resulted from the conduct of the parties, the court charges you that would be binding upon them. ’ ’

There may be no serious objection to that charge in the abstract, but it was entirely inadequate to inform the jury of the law as to the issues of fact which it was required to determine.

' Our Supreme Court as early as Railroad Co. v. Lockwood, 72 Ohio St., 586, 74 N. E., 1071, and later in Telinde v. Ohio Traction Co., 109 Ohio St., 125, 141 N. E., 673, has held that it is reversible error for the court to fail to separate and define the various issues of fact in the pleadings.

The bases of plaintiffs’ claim and the damages flowing therefrom clearly appear in the petition, and the issues of fact thereon were raised by the answer. In view of the testimony, it became vital to the rights of the parties that the issues be separated and the controlling law respecting each stated to the jury.

It is probable from this record in its entirety that the plaintiffs were entitled to a verdict in some amount, especially is this true in view of the fact that neither defendant took the stand to clarify the issues.

The damages were grounded upon the claims, first, that there was an express oral contract between the parties that the plaintiffs were to own and receive net profits from the operation of the restaurant, and, second, that should defendants desire to sell, lease or dispose of the restaurant, they would pay plaintiffs $500 in cash and give them reasonable notice and reasonable time to establish themselves in the restaurant business elsewhere, without loss. The first claim was admitted by the answer. The second was denied. The second claim was reasserted in the statement of plaintiffs’ counsel to the jury and again in his brief and on oral argument, but the record affords no proof whatever of this claim. There is testimony respecting two or three proposals and discussions of the parties, but not one of them supports the averment of the contract alleged. It is obvious from the verdict and judgment that the jury awarded to plaintiffs some part of the $500 in cash which it is averred defendants agreed to pay if they decided to sell and dispose of the restaurant business. The jury could not, under the pleadings, consider any of the testimony respecting the loss of profits of plaintiffs because the basis therefor,, namely, the express contract, was not established.

If defendants locked plaintiffs out of the restaurant,, which fact seems to be established, and if defendants converted to their own use merchandise and foodstuffs belonging to plaintiffs, the latter were entitled to payment in the reasonable value thereof. The evidence of the amount of property converted and its value was not as complete or specific as desirable, but it probably was sufficient to carry the case to the jury.

It was no help to the jury in fixing value for a witness to say that he had a lot of this and a lot of that in the restaurant.

When and if this case is retried, the issues on the pleadings should be carefully determined by the trial judge and the plaintiffs should be required to conform their proof to the case which they make on their pleadings.

No good purpose would be served in further discussing the variance between the proof and the case made on the pleadings.

Defendants’ claim that the court erred in overruling their motion for judgment non obstante veredicto will be denied.

The judgment is reversed for error in the charge of the court and because the amount of the verdict is contrary to and manifestly against the weight of the evidence.

Judgment reversed.

Miller and Montgomery, JJ., concur.

(Decided November 8, 1945.)

On Application for rehearing.

By the Court.

The cause is submitted on application of plaintiffs, appellees herein, for rehearing.

Two grounds are assigned, first, “the court * * * erred grievously when it made this statement, ‘it is obvious from the verdict and judgment that the jury awarded to plaintiffs some part of the $500 in cash which it is averred defendants agreed to pay them if they decided to sell and dispose of the restaurant business.’ ” The statement which is challenged is manifestly correct. The total damages prayed for in the petition were $1,400. The verdict and judgment were for $1,000. There was no supplemental petition. Obviously, some part of the $500 damages claimed was awarded. Even though the verdict was in such an amount that it would appear that it was $500 or more less than prayed for, even so, this court could not determine whether the verdict included some part, or all, of the $500 damages claimed.

The second ground is that the court erred in its observation respecting the charge on implied contract. It is not necessary for us to restate our view respecting the charge of the court. It was fully and carefully considered in our original opinion.

Nothing is suggested in the application which was not passed upon in our former opinion. The application is denied.

Application denied.

ITornbeck, P. J., Miller and Montgomery, JJ., concur.

Montgomery, J., of the Fifth Appellate District, sitting by designation in the Second Appellate District.


text:
    Roodman, a Taxpayer, Appellee, v. City of Cleveland et al., Appellants.
    (No. 20080
    Decided June 26, 1946.)

      Messrs. Harrison & Marshman, for appellee.

      Mr. Lee C. Ilowley and Mr. Charles W. White, for appellants.
   By the Court.

The defendants appeal on questions of law and fact from a decree of the Court of Common Pleas of Cuyahoga county, Ohio, finding against them on the issues presented by the pleadings and the evidence submitted and rendering judgment against them in the sum of $337,725.63, plus interest in the amount of $102,706.32, a total of $440,431.95.

The allegations in the pleadings are lengthy and a statement of all the pertinent facts would require considerable space.

The pivotal question is presented, however, in the placing of the burden of proof. Only a brief statement of the facts is necessary to present this question.

The city of Cleveland, like other municipalities in this state, is required to contribute to the state industrial insurance fund for workmen’s compensation coverage for the employees of the city. At regular periods this contribution is assessed against the municipality in a lump sum, which is paid out of the city’s general fund.

The city of Cleveland, after payment of such contribution, has adopted a policy of charging the several departments of the city upon the basis of a pro rata amount according to the number of employees in each such department.

In certain later years, specially'designated by plaintiff, it appears that the defendants have seen fit to charge certain non-tax supported utilities, particularly those supplying water, heat and light, at a larger per capita rate than the per capita rate for the city as a whole. That is, the rate charged the utilities is greater than the rate secured by dividing the lump sum paid by the city to the insurance fund by the total number of employees in the city.

Now the plaintiff claims the burden of proof rests upon the city to show that such‘discrepancy against the utilities is justified.

The defendants claim this burden of proof rests upon the plaintiff to show that the rate charged the utilities is unfair, unreasonable, and not justified by the higher risk to employees in the utilities departments.

The evidence fails to show anything except the discrepancy in the basic and utility rate. There is some evidence of conferences between heads of the departments affected, resulting in agreement as to the rate charged the utilities.

The plaintiff, a taxpayer, is applying to a court of equity, seeking relief for the utilities involved.

The claim of plaintiff is based upon the assertion that the provisions of Section 3959, General Code, and the city charter of Cleveland have been violated, in that the revenue of the utilities has been used for general city purposes, contrary to the inhibition of the enactments mentioned.

There can be no question that such diversion, if it is shown to exist, is a violation of law.

City of Cincinnati v. Roettinger, a Taxpayer, 105 Ohio St., 145, 137 N. E., 6; Hartwig Realty Co. v. City of Cleveland, 128 Ohio St., 583, 192 N. E., 880; City of Lakewood v. Rees, 132 Ohio St., 399, 8 N. E. (2d), 250; City of Niles v. Union Ice Corp., 133 Ohio St., 169, 12 N. E. (2d), 483.

Certainly, the bare assertion that a diversion exists cannot take the place of evidence showing such diversion.

This court can take judicial notice that the risk to employees in the several departments of a city is not uniform.

It is obvious that the risk of accident and injury to an employee of the waterworks department engaged in manual labor and a clerk in the office of the auditor would vary greatly.

In the absence of evidence, how may the court, therefore, arbitrarily say that the rate charged the utilities is unreasonable, arbitrary and unjust, and constitutes an unlawful diversion? This must be the sustained charge of the plaintiff if she would prevail. She is seeking affirmative relief against the defendants.

No principle of law is apparent by which the burden of proof may be caused to shift to the defendants merely upon a showing of the discrepancy in the rates. The mere fact that the defendants could more easily disprove the charge than the plaintiff could prove it may not be advanced as a reason for a court of equity to modify the burden normally resting upon one who asserts a grievance against a defendant.

In her petition, the plaintiff asserts “that rates for the service and products of the divisions of the department of public utilities herein mentioned are in excess of what said rates ought to be, that said rates are fixed on the assumption that the charges for the state insurance fund are correct, whereas, they are excessive as herein stated.” This is the charge of the plaintiff, but there is no evidence supporting such charge.

Since the burden of proof rests upon plaintiff to sustain her claims of discrimination, overcharge and unlawful diversion of funds from the utilities, and the evidence fails to sustain such claims, the'decree must be for the defendants, and it is so ordered.

Decree for defendants.

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

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