author: Matthews, J.

text:
    In re Keagy.

      (No. 6497
    Decided April 2, 1945.)

      Mr. Leonard H. Freiberg and Mr.'Frank X. Brearton, for appellant.

      Mr. Carson Hoy and Mr. Thomas Stueve, for the State of Ohio.
   Matthews, J.

The appellant, being held as a prisoner by the sheriff of Hamilton county, filed a petition for a writ of habeas corpus in the Court of Common Pleas of that county, in which petition he alleged that he was restrained of his liberty without lawful authority. Upon the trial, the court found against the appellant and remanded him to the custody of the sheriff. It is from that judgment that this appeal was taken.

The record shows that on December 6, 1943, the appellant was arraigned in the Court of Common Pleas, Division of Domestic Eelations, and thereupon changed his plea of not guilty to that of guilty. The court then sentenced him to imprisonment in the jail of Hamilton county and to be kept at hard labor “for a term of one year and execution is hereby awarded therefor. The defendant to stand committed until said sentence is served or he be otherwise legally discharged.” We do not find in the record any statement of the crime of which he pleaded guilty. We are advised by counsel that it was the crime of contributing to the delinquency of a minor, defined in Section 1639-45, General Code.

On January 10,1944, on application of the appellant, the court in the case in which the sentence was imposed entered an order upon its journal that: “The sentence heretofore imposed * * * is hereby suspended and the defendant * * * is placed on' probation to the adult probation department * # * for a period of one year.

One of the terms of probation was that the appellant submit himself to the supervision of the staff and officials of High Oaks Sanitorium of Lexington, Kentucky, for a period of one year, and in the event of his release by them during such year, that he immediately surrender himself to the adult probation department aforesaid.

On October 4, 1944, the court in the same case made an order in which it was recited that appellant had been returned as a probation violator and on consideration of the evidence it was found that on September 23, 1944, he violated the terms of his probation and thereupon ordered that he be “remanded to the Hamilton county jail and kept at hard labor for the balance of the time remaining on the sentence * * * and execution is hereby awarded therefor, the defendant to stand committed until he be otherwise legally discharged. ’ ’

The only question presented is whether these orders and the commitment in accordance therewith constitute lawful authority to the sheriff to hold the appellant and deprive him of his liberty. It is urged that they are so vague as to the duration of the imprisonment that it is impossible for the appellant or the sheriff to determine when the sentence has been served, and for that reason they are void and furnish no authority for the appellant’s detention.

The court by its judgment of December 6, 1943, found appellant guilty and sentenced him to jail for “a term of one year” and committed him at once. As he was in court at the time, and was to be confined in the county jail, his imprisonment started at once. There' was no occasion for delay as there would be where the sentence was imprisonment at a distant point necessitating the transfer from one place and authority to another, as in the case of a sentence to a state penitentiary in which the law gives the sheriff five days to make delivery. Section 13455-1, General Code. Petticrew v. Webster, Supt., 63 Ohio App., 456, 27 N. E. (2d), 151. There is no uncertainty as to the time when credit upon his sentence began to accrue, there is no uncertainty as to the extent of the punishment imposed — one year being a phrase whose meaning is not doubtful — and there could be no doubt in the mind of anyone when it would be completed, whether fulfilled by continuous hard labor in prison for one year, or otherwise. And there is no requirement of the law that the judgment should in express terms fix the date of the beginning and ending of the imprisonment. 15 American Jurisprudence, 108 et seq.

The service of this sentence was interrupted on the application of the appellant and he was placed on probation. The authority for such interruption after commitment is found in Section 1639-49, General Code, by which it is enacted that: “In every case of conviction and where imprisonment is imposed as part of the punishment, such judge may suspend sentence, before or during commitment, upon such condition as he imposes.”

This section is found in Chapter 8 by which Juvenile Courts are created and their jurisdiction defined, and the section confers such power to suspend only upon courts exercising jurisdiction of Juvenile Courts. The general provisions of the Code of Criminal Procedure — Section 13452-1 et seq., General Code — applicable to probation, do not limit, control or modify in any way this special provision applicable to Juvenile Courts only. The provision of those sections limiting the power to grant probation to the time after conviction before sentence and withholding power to grant probation after sentence have no application here.

Some doubt has been expressed as to the meaning of Section 1639-49, General Code. The words are: “Such judge may suspend sentence” before or during commitment. It is suggested that this may mean that when the judge exercises this power he disturbs the sentence or judgment which he had imposed and not merely the execution of the sentence. We think it clear from the context that the Legislature intended by this language that the court could suspend the execution of the sentence only.

In State, ex rel. Gehrmann, v. Osborne, 79 N. J. Eq., 430, 82 A., 424, the court held as stated in the syllabus that:

“The term ‘suspended sentence,’ as used in criminal law, refers to the suspension of the execution of a sentence already imposed, and not correctly to the suspending of sentence.”

See, also, Moore v. State, 125 Neb., 565, 251 N. W., 117; and State v. Anderson, 43 S. D., 630, 181 N. W., 839.

We, perhaps, should say here that no issue has been raised as to the constitutionality of Section 1639-49, General Code, and, as the appellant requested the suspension, he, in any event, is in no position to raise the issue. Furthermore, if he were in a position to raise the issue it could not benefit him as the invalidity of the section would affect the suspension and not the original sentence. Municipal Court v. State, ex rel. Platter, 126 Ohio St., 103, 184 N. E., 1.

Finally, it is urged that the language of the order of October 4, 1944, recommitting the appellant to jail, is indefinite as to the duration of the commitment. The language of the order is: “For the balance of the time remaining on the sentence imposed by the court on December 6,1943.”

Referring to the order of- December 6, 1943, we find that the sentence was to the jail for one year, at hard labor. He served from that date to January 10, 1944, when he was placed on probation. He was not returned to the jail under the sentence until October 4, 1944. From this statement and the use of arithmetic, no doubt arises as to the duration of his imprisonment or the unserved portion of it. Mere lapse of time after sentence was not sufficient to constitute a performance of the penalty. The penalty imposed was one year of hard labor in the jail. In determining whether the penalty has been satisfied in whole or in part only, the duration of the imprisonment at hard labor designated by the sheriff can be considered. The time the convict was on probation cannot be considered as a credit upon the penalty imposed upon him. It is clear that the term has not expired and that the sheriff is in lawful custody of the appellant.

For these reasons, the judgment is affirmed.

Judgment affirmed.

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


source: Caselaw Access Project

author: Sherick, J.

license: Public Domain

text:
    Perry, Appellee, v. The Darlington Fireproofing Co., Appellant.
    (No. 2177
    Decided February 2, 1945.)

      Mr. F. E. Hunter, for appellee.

      Mr. Sidney L. Geiger, for appellant.
   Sherick, J.

Plaintiff’s third amended petition recites that he is the owner and bearer of three first mortgage gold bonds, executed on July 15, 1927, and made payable to bearer. Each calls for the payment of $500 with 7% interest. It is stated that part of the interest coupons have been paid, but that no part of the principal has been paid; that demand has been made for payment of the principal and interest from January 15,1932; and that payment has been refused.

It is further averred that these bonds were issued, and were accepted by him subject to all the terms, provisions and conditions contained in the mortgage, referred to in the bonds, relating to the foreclosure of the mortgage; and that he does not seek foreclosure of the mortgage, but asks that the principal sum and interest due thereon be paid.

Plaintiff further says that the mortgage referred to in the bonds in no way limits his right to sue for the sums due and payable; and that such mortgage provides that “the various rights, powers and remedies provided for by this indenture, shall be construed as cumulative and none of them as exclusive of the others or of any rights or remedies allowed by law.” A personal judgment is prayed for. The three bonds and the mortgage are attached to and made a part of the pleading.

The answer of defendant admits practically all of the petition’s averments, but avers the fact to be that the trust mortgage limits plaintiff’s right to sue. Its second defense avers that plaintiff has. failed to perform the prerequisites required by the bond and mortgage. There next follow long excerpts taken from these two instruments, of which we shall have more to say hereinafter. Defendant asks that plaintiff’s petition be dismissed.

A jury having been waived, the cause was submitted to the court upon an agreed statement of facts, which adds little to the issues made by the pleadings. It is agreed, however, that the sum due on the bonds amounts to $2,834.37 as of October 4, 1944; that when the action was commenced, $320,000 of bonds were issued and outstanding; that the City Savings Bank & Trust Company of Alliance, Ohio, was trustee for bondholders ; that plaintiff made no demand upon it to commence foreclosure or any proceedings; and that 25% of the bondholders had never made any such demand or request.

The court rendered judgment in plaintiff’s favor after a motion for a new trial had been overruled. From that judgment defendant appeals on questions of law and fact, but treats the same as an appeal on questions of law, which of course it properly is. We shall so consider it.

It ought first be said that these three bonds contain an unconditional promise to pay a certain fixed sum on demand, at a fixed time, to bearer, or if they be registered, upon order. The same is true of all interest coupons unpaid and undetached from the bonds. It is recited upon the face of the bonds that “this bond shall pass by delivery unless registered.” They have not been registered. It is further stated that “the coupons on this bond shall be negotiable by delivery.” The sixth and eighth paragraphs of these bonds are pertinent to the issue. We quote them in full:

“If the company default in the payment of interest which shall mature on any of said bonds secured by said mortgage or in the performance of any of the provisions of said mortgage, the principal sum of this bond may be made due and payable in the manner provided in said mortgage.”
“This bond is issued and is accepted and held subject to all the terms,_ provisions and conditions contained in said mortgage.”

The principal sum of one of these three bonds was due and payable on July 15,1932. The second and third were due and payable on July 15, 1933. The last due coupon on bond one, due July 15, 1932, is undetached and is unpaid. The last three coupons on bonds two and three are undetached and unpaid. We note these facts in order that it may appear that the principal and interest of these bonds are long past due, as a preface to the comment, that the sixth paragraph’s purpose clearly is an acceleration of principal due date if interest coupons are not paid when due, and the procedure to he followed. This clause can therefore have no application to these long overdue bonds.

We reach the conclusion, as did the court in Enoch v. Brandon, 249 N. Y., 263, 164 N. E., 45, that these bonds are negotiable. They exhibit all the requirements of negotiability. The fact that the eighth paragraph contained within these bonds refers to another instrument, the mortgage indenture, cannot impair their negotiability, unless it clearly appears in explicit language therein, or from unescapable implication therefrom, that they were not to be negotiable, even though the face of the bond states the contrary.

It may be stated as a general rule, as is done in the note appearing in 108 A. L. R., 88, 90, that:

“Reasonable restrictions on the right of action of an individual holder of one or more of a series of corporate bonds or other obligations, either in respect of the obligation or the security or of both, have generally been held to be valid and enforceable.”

Further on it is said, on page 94 thereof, that:

“The construction and application of express restrictions on the right of action of an individual holder of one or more of a series of corporate bonds or other obligations depend largely upon the exact language of the particular restrictive provisions. * * # It has generally been said that restrictions on the right of action of an individual bondholder are to be strictly construed,” for the apparent reason that they are restrictive of rights recognized at common law. They are effective only when clear and free from doubt, and are not to be extended by implication, unless such a conclusion is inescapable. The same general rules, supported by a number of authorities, áre found stated in 19 Corpus Juris Secundum, 758, Section 1163; and 13 American Jurisprudence, 851, Section 863.

Defendant first directs our attention to the sixth paragraph of the bond, as is hereinbefore quoted, and then to article 10 of the mortgage, which reads:

“Default shall be made in the payment of the principal of any of the bonds, when and as the same shall have become payable, whether at maturity or by declaration of the trustee or otherwise.”

This paragraph is followed by other provisions declaring other acts, like failure to pay taxes, to be a default. These default provisions are preceded by these words, “in case one or more of the following events shall happen, that is to say, if,” and are followed by this language, “then and in each and every such case of default, and during the continuance thereof, the trustee * * * may enter on the mortgaged premises,” and operate the same, and distribute moneys arising therefrom. Clearly this article has to do with corporate displacement and the trustee’s entry in case of any default..

But defendant says that articles 11, 12 and 15 must be read in conjunction with article 10 in support of its contention that the mortgage provision takes from plaintiff his common-law right to sue for a personal judgment.

Article 11 provides that in case of default, as defined in article 10, the trustee may, upon request of 25% in amount of the bonds then outstanding declare all outstanding bonds to be due and payable. This is the acceleration clause. It provides what may come to pass, when a default occurs and the trustee has taken- possession of the mortgaged premises for the benefit of bondholders.

Article 12 further concerns the happening of an event of default as defined in article 10 and proceeds further to declare that in every such case the trustee may, with or without entry, and upon request of 25% in amount of the bondholders proceed to foreclose the mortgage and effect a sale and apply the proceeds in the manner directed. Other provisions follow as to what shall and shall not be done in case of sale.

At this point it is well to point out that article 14 contains the provision, quoted by plaintiff in the last clause of his pleading, concerning cumulative remedies.

The first portion of article 15 simply provides that taking of possession of the premises in case of default is not obligatory on the trustee, unless he is indemnified by the bondholders; but that he may act without indemnity if he elected to do so. Defendant lays its greatest stress on the second portion of article 15. It provides that:

“No holder of any bond or coupon hereby secured shall have the right to institute any suit, action, or proceeding at law or in equity for the foreclosure of this indenture, or otherwise upon or in respect to this indenture,” without having given notice to the trustee, nor unless 25% in amount of the bondholders have made request upon the trustee to proceed as hereinbefore provided; and that every such notification and request shall be a condition precedent “to any action or right of action for foreclosure, * * * or for any remedy hereunder, it being.understood and intended that no one or more holders of bonds or coupons shall have any right in any manner whatever to affect, disturb or prejudice the lien of this indenture by his or their action or to enforce any right hereunder, except in the manner herein provided, and that all proceedings hereunder shall be instituted, had and maintained in the manner herein provided and for the equal benefit of all holders of such outstanding bonds and coupons.”

The restrictive provisions of the mortgage, commented upon, are all the so-called “no-action clauses” contained therein. It ought to be clear that they are concerned with the matter of foreclosure or any action by a bondholder which would impair the lien of the. mortgage and which might work a preference to one bondholder and be to the disadvantage of all other holders of outstanding bonds. Their purpose and intent are to protect the lien equitably and ratably for the benefit of all bondholders. Nowhere within the bond or mortgage is it unequivocally stated that a bondholder shall not institute an action for personal judgment upon his matured and unpaid bond. If the purpose had been to deny a bondholder this recognized common-law right, it could have been done in very simple language. The language of both instruments is to the contrary. The borrower several times therein states that its bonds and coupons shall be negotiable by delivery.

The recent case of Scott v. Platt, 171 Ore., 379, 135 P. (2d), 769, which reviews many earlier authorities, deals with precisely the same question. Article 15 of this mortgage is in almost identical language with that considered by the Oregon court. It was held therein to be ambiguous and ineffectual, and not sufficient to deny the bondholder his unsurrendered right to seek personal judgment. Ohio courts have long recognized that a mortgagee, out of possession, after default has three remedies. One of these is that he may disregard his security and seek personal judgment. The reason is that the mortgage is only security for the obligation. See Spence v. Insurance Co., 40 Ohio St., 517, and Simon v. Union Trust Co., 126 Ohio St., 346, 185 N. E., 425.

The following statement, found in Dunham v. Omaha & Council Bluffs St. Ry. Co., 106 P. (2d), 1, 2, and quoted in Scott v. Platt, supra, is, we believe, sound in reason and principle:

“That normal right of an owner of a bond in default is not subject to destruction by implication but continues to exist as a legal incident of the promise unless there is definite language to the contrary in the bond, or which is incorporated in the bond by reference to another instrument in so plain a way that the restriction is a part of the bond itself.”

If any such restriction is uncertain, obscure or ambiguous, then any such doubt or uncertainty will be resolved against the maker of the bond and in favor of the bearer thereof.

The judgment must be affirmed.

Judgment affirmed.

Montgomery, P.' J., and Putnam, J., concur.


author: Miller, J.

text:
    The State, ex rel. Crabtree, v. Eichelberger, City Mgr. and Director of Public Safety.
    (No. 1839
    Decided February 23, 1945.)

      Mr. Irvin G. Delscamp, for relator.

      Mr. Herbert 8. Beane, city attorney, and Mr. Maurice J. Gilbert, for respondent.
   Miller, J.

This is an original action in mandamus brought by the state of Ohio on the relation of Frank Crabtree against F. 0. Eichelberger, who is city manager and director of public safety of the city of Dayton, Ohio.

The question of law involved in this action is presented by a demurrer to the answer. The facts essential to the consideration of the legal question presented may be very briefly stated.

On August 20, 1943, the relator, Prank Crabtree, was selected by the respondent from an eligible civil service list and appointed to the position of captain in the department of safety, division of fire of the city of Dayton, Ohio, at a salary of $225 per month, next six months.

On or about the 18th day of February 1944, the relator was reduced from the rank of captain to that of lieutenant, which position he had held prior to this, promotion. The letter of reduction is as follows:

“Captain Prank Crabtree:
“I regret to inform you that your services in the capacity of captain in the division of fire during your probationary period have not measured up to the standard required for that position and you are therefore reduced to your former rank of lieutenant, division of fire, effective February 19, 1944.
“(Signed) P. 0. Eichelberger,
“City Manager.”

This matter was presented to the civil service board and the reduction was approved on the same- date.

It is claimed by the relator that these charges are not definite and certain and, therefore, do not come within the requirements of the General Code or of the charter of the city of Dayton. We agree that these charges are general only and do not inform the relator of any definite reason for his reduction in rank. The respondent contends that under the provisions of Section 99 of the charter of the city of Dayton no specific charges are required. This section reads as follows :

“An appointment or promotion shall not be deemed complete until a period of probation not to exceed six months has elapsed, and a probationer may be discharged or reduced at any time within the said period of six months, upon the recommendation of the head of the department in which said probationer is employed, with the approval of the majority of the board.”

-. Section 486-13, General Code, differs from Section 99 of the Dayton charter in that the probationary period shall not exceed three months. It provides in part:

: “All original and promotional appointments shall be for a probationary period of not to exceed three months to be fixed by the rules of the commission.”

Respondent relies upon the case of State, ex rel. Jackson, v. Dayton City Commission, 30 Ohio Law Abs., 378, which holds that specific provisions in a city’s home rule charter fixing the manner and method of promotions under the civil service law take precedence over state law, as long- as such local provisions do not conflict with the Constitution. The court in arriving at this conclusion was of the opinion that regulations of the police and-fire departments are of purely local concern, and that, under Section 3, Article XVIII of the Constitution of Ohio, this power is granted to the cities.

• But the Supreme Court of Ohio has placed a different interpretation upon the nature of the work performed by the police and fire departments of the cities. In State, ex rel. Daly, v. City of Toledo, 142 Ohio St., 123, 50 N. E. (2d), 338, the court said, at page 128:

“The next step in the solution of our problem is whether fire protection is a matter of purely local concern. This is no longer an open question in Ohio. Two pronouncements of this court will suffice to demonstrate the established law of this state upon that subject.
“In State, ex rel. Strain, Dir., v. Houston, Chief, 138 Ohio St., 203, 34 N. E. (2d), 219, this court held:
“ ‘Fire protection is a matter of concern to the people of the state generally, * * V
“In City of Cincinnati v. Gamble et al., Trustees, 138 Ohio St., 220, 34 N. E. (2d), 226, paragraph four of the syllabus reads as follows:
“ ‘In general, matters relating to- police and fire protection are of state-wide concern and under the control of state sovereignty.’ ”

Therefore, since the nature of the work of the relator is of state-wide concern and there is a conflict between Section 99 of the Dayton charter and Section 486-13, General Code, we hold that the state law must prevail. The demotion was illegal in that over three months had elapsed since the appointment and no specific charges were preferred as required by Section 486-17, General Code. This section provides:

“In all such eases of reduction, lay-off or suspension of an employee or subordinate, whether appointed for a definite term or otherwise, the appointing authority shall furnish such employee or subordinate with a copy of the order of lay-off, reduction or suspension and his reasons for the same, and give such employee or subordinate a reasonable time in which to make and file an explanation.”

We do not adopt the theory of the relator that he was entitled to a statement setting forth the reasons for his reduction because of any status assured to him by the provisions of the charter of the city of Dayton, but solely by reason of the conflict of the charter with the state provision as to the time within which an appointee was under probationary appointment.

The demurrer searches the record and, in our opinion, the petition, setting out fully the facts of relator’s appointment and the time during which he served, in' conjunction with his civil service status, states a cause of action.

The demurrer to the answer is sustained and unless respondent desires to plead further the writ will be allowed.

Demurrer sustained.

Hornbeck, P. J., and Geiger, J., concur.


author: By the Court.

text:
    The State of Ohio, Appellee, v. Tucker, Appellant.
    (No. 3781
    Decided January 20, 1945.)

      Mr. Ralph J. Bartlett, prosecuting attorney, and Mr. Forrest F. Smith, for appellee.

      Mr. Frank H. Ward, for appellant.
   By the Court.

Appellant complains of error in the trial court’s refusal at the end of its charge to further instruct the jury that it might find the appellant guilty of the lesser offenses of robbery, i. e., assault and assault and battery.

Appellant further asserts that he offered proof in his own behalf that he was not armed at the time of the commission of the offense charged; and that he was then engaged in the collection of a debt due him by the prosecuting witness. He testified that he did have a piece of cardboard in his inside right coat pocket, which he at the time shifted to his right side pants pocket. Three witnesses testified that it was a revolver, not cardboard. No matter which it was, it is evident from their testimony and that of the appellant that the prosecuting witness was put in fear of his life. The appellant states that he deliberately left the prosecuting witness in that state of mind. It is, therefore, certain that the appellant was at least guilty of an assault. There was no evidence of a battery of any kind; hence, a charge on that offense would have been improper. It is also clear that had the jury concluded that he did not have a gun, and that he was not just merely collecting a debt, but through threat and fear was taking from the prosecuting witness the sum demanded, it might then have properly found the appellant guilty of robbery. The evidence of the state would have proved either one of three offenses, that is, armed robbery, robbery or assault.

Appellant urges that the court’s refusal to charge upon a lesser offense deprived him of his right to have the jury find him guilty of these lesser offenses, in that it either had to find him guilty of the crime charged or acquit him. The evidence clearly established that appellant was guilty of the offense charged or some degree thereof, and it might well have been that the jury went the full extent and found him guilty as charged, rather than acquit him.

The rule of Bandy v. State, 102 Ohio St., 384, 131 N. E., 499, 21 A. L. R., 594, and kindred cases, is that lesser offenses are only to be charged upon, where there is evidence before the jury from which it may properly find the accused guilty of a lesser offense. When there is no such evidence, the lesser offense ought not to be charged.

But when such evidence appears, the lesser offense must be charged and the jury given an opportunity to determine the degree of an accused’s offense. When it is denied this right of choice by a court’s refusal to charge, then the court has usurped the jury’s prerogative, not only to determine the degree of the offense, but to pass upon the credibility of witnesses which lays within its exclusive province.

It follows that the judgment entered on the jury’s verdict must be reversed and the cause remanded for a new trial.

Judgment reversed.

Hornbeck, P. J., Geiger and Sherick, JJ., concur.

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


author: Sheriok, J.

text:
    Collins, a Minor, Appellant, v. The Pennsylvania Rd. Co., Appellee.
    (No. 1948
    Decided October 31, 1944.)

      Messrs. Fiizgibbon & Fiizgibbon and Mr. Charles B. lloltsberry, for appellant.

      Messrs. Pomerene <& Burns, for appellee.
   Sheriok, J.

The principal law question presented in this appeal has to do with the propriety of the trial court’s direction of a verdict, at the end of plaintiff’s case, in favor of the defendant and entering final judgment thereon.

The action is for damages for personal injury which resulted from defendant’s train colliding with an automobile, in which plaintiff, a minor of the age of 16 years, was riding as a guest passenger, at a street crossing in the city of Newark.

It was averred and established by plaintiff’s evidence that defendant was negligent in two respects: First, the crossing was a dangerous one and in bad repairsecond, the train was moving in excess of the speed allowed by municipal ordinance. Injury and damage were also pleaded and proved.

Defendant in its answer denied its negligence, admitted the injury, but denied the extent thereof, and averred that plaintiff’s injury and damage were caused by the negligence of the driver of the car. The reply denies such new matter as the answer sets forth.

. In accordance with the settled rule of this state that, on a motion for a directed verdict, the evidence shall be weighed in the aspect most favorable to him against whom the motion is directed, the facts established are as follows:

Plaintiff was a rather backward farm girl of 15 years and some months of age. She entered her brother-in-law’s coupe along with two other children. A girl occupied the right side of the driver’s seat. A slight ten-year old boy sat upon her lap. The plaintiff sat between the driver and the boy and girl. The right door window had been broken out and replaced with cardboard in which were three slots filled in with isinglass. Defendant’s train hit the car in its rear on the right side.

Plaintiff had three or four times previously ridden in this car in the condition described. She lived in proximity to Main street which led into the city’s public square, where she was going. She lived also near the Arch street crossing where the accident happened. She had never been over the Arch street crossing'and had no knowledge of it. She had expected her brother-in-law to drive up Main street, which was the usual course. This was a good crossing protected by gates and blinker lights.

It is evidenced that the driver approached the crossing, stopped his car, looked and listened and then drove upon the crossing at about three miles per hour. There were three or four sets of tracks. A house stood close to the crossing, on the car’s right. It is evidenced that the house and certain trees obstructed the view to the right. The tracks at this crossing were elevated on the outside indicating a curve. One could see to the right when on the tracks, some six telephone pole lengths, or 400 to 500 feet. There was a railroad-crossing post at this crossing, but no gates, bells’ or flasher lights. The driver testified that he did not see the. train approaching when he drove upon the tracks, and that he could see and did look when he started across. The train was moving at 40 to 45 miles per hour. The municipal ordinance required a speed of not greater than 25 miles per hour.

Plaintiff said she did not know they were crossing the tracks, and that she had no remembrance of anything that happened between the time of entering the car and the time of recovery of consciousness in the hospital.

This being the state of the facts most favorable to plaintiff, can it be said that it discloses negligence upon her part, precluding, as a matter of law, her recovery? We are told in brief and in oral argument that the trial court’s judgment was predicated on the facts that plaintiff had entered this car as a guest knowing that the cardboard cut off her view to the right; that such substance in a car door window was contrary to Section 6307-98(a), General Code, which requires that a door window be of transparent material and forbids a driver from operating a car unless it is so equipped; and that plaintiff made no proof that she looked or attempted to look or exercised any care for her own safety. It is apparent that the trial court must have acted as it did with these matters in mind. It found therefrom not only that plaintiff, was guilty of contributory negligence as a matter of law, but that such negligence was the direct and proximate cause of her injury and damage, and also found, in accordance with Hamden Lodge v. Ohio Fuel Gas Co., 127 Ohio St., 469, 189 N. E., 246, that reasonable minds conld reach no other conclusion from all the plaintiff’s evidence.

It is settled in this state that a guest passenger must exercise due care for his or her own safety, that is, such care as a reasonable and prudent person in like circumstance would employ; and this rule applies as well to guests who are minors, relaxed of course to that degree of care which children of like age and capacity would exercise in their behalf in like circumstances. The difficulty is found in establishing a rule as to just how far a guest should go in attempting to exercise due care. Ohio cases support the view that guests are required to look and listen at railroad crossings and of course warn the driver of approaching trains at crossings known to and perceivable by them, and that is as it should be.

Ohio courts entertain two further rules; that of refusing to impute the negligence of the driver to his passenger; and that of joint enterprise; both of which are discussed in the well known case of Bloom v. Leech, Admr., 120 Ohio St., 239, 166 N. E., 137. Our Supreme Court has said in Hocking Valley Ry. Co. v. Wykle, Jr., a Minor, 122 Ohio St., 391, 171 N. E., 860, in stating the rule that a guest must exercise due care for his own safety, that “a guest in an automobile does not assume the responsibilities of the driver.” This clause it will be noted prefaces the statement of the rule of due care as to guests.

In view of the boundaries established, i. e., joint enterprise and denial of imputed negligence, there exists that field of due care in which our courts have been hesitant to say just how far a guest passenger should go in directing the operation of a motor vehicle which the Supreme Court of the United States has held to be a dangerous instrumentality. Just as too many cooks may spoil the broth, so too many drivers may cause disaster.

We think it may be soundly reasoned as a corollary that, if a guest “does not assume the responsibilities of the driver,” then the guest is entitled to rely upon the driver’s looking, providing the latter exercises due care.

We can readily conceive of situations wherein a guest might fail to exercise due care, examples of which might be in accepting a ride when it is evident that the driver is intoxicated, or it is known to the guest that the car is without brakes or its steering apparatus is defective. But is this such a case? Plaintiff said that she had ridden with her brother-in-law before in this car; that she thought he would go over the Main street crossing; that she knew nothing about the Arch street crossing; and that she did not know they were crossing the railroad when the collision occurred. She was a school girl and a rather backward child, and, for all we know, she had never driven a car. Her driver said he stopped and looked and that he saw no train approaching, and this testimony-must be taken as true.

Is this isinglass-slotted cardboard in the right door like a known drunken driver, a lack of brakes or defective steering-apparatus ? We think not. We seriously doubt that this young girl appreciated the danger of riding in a car with a cardboard substituted for glass in a door window. If she did not appreciate the danger or did not know she was being carried over a railroad crossing there was little or nothing she could do for her own safety.

Surely the guest passenger had a right to rely upon her driver operating the automobile properly and carefully. She was assured that her driver might not purposely or wantonly injure her. She knew that a careful driver will ordinarily exercise due care for his own safety and in doing so a guest passenger will at the same time be properly cared for. Her driver said he stopped, looked and listened when the same was effective. If this was true, then the driver exercised due care at the crossing and any negligence of the driver in driving his car with a cardboard window could not be imputed to the plaintiff or be the proximate cause of the collision. Was it the cardboard and the guest’s failure to look that caused the injury? Or was it the unlawful speed of the train or the bad crossing, conceded by the motion to be true, which caused the injury? We think the evidence presented a jury question upon which reasonable minds might arrive at different conclusions, both as to contributory negligence and proximate cause.

It must be conceded that school children riding in school buses may rely on the driver. Passengers for hire on common carriers must and do rely on their drivers, even if such passengers are required to exercise due care for their own safety. Prom these truisms it is certain that passengers’ reliance upon drivers driving carefully is not a new principle.

In the recent case of Garcia v. American Rd. Co. of Porto Rico, 127 P. (2d), 433, it was held in the sixth paragraph of the syllabus:

“In Puerto Rico one riding in a vehicle under the control of another is entitled, in the absence of notice to the contrary, to rely upon the skill and prudence of his driver and is under no affirmative duty either to keep a constant lookout ahead or to warn his driver of every possible danger in their path..”

The point which we are attempting to advance, seems to have been twice under observation in Massachusetts, first in Pigeon v. Mass. Northeastern St. Ry. Co., 230 Mass., 392, 119 N. E., 762. In that case guests testified that they were not relying upon their driver. They were denied recovery upon the theory that their acts clearly indicated contributory negligence on their part. However, the court proceeded to observe, that “the female plaintiffs were guests of Pigeon and therefore entitled somewhat to rely upon him. ’ ’ The same court, in Jones v. N. Y., N. H. & H. Rd. Co., 275 Mass., 139, 175 N. E., 487, wherein a woman who was riding with her sister, the driver, sued to recover damages for injuries sustained in a crossing collision, held that the plaintiff who relied on driver to look out for her was entitled to recover against railroad if the driver exercised due care.

4 Blashfield’s Cyclopedia of Automobile Law & Practice (Perm. Ed.), 273, Section 2476, states the following rule which, as we see it, is applicable here:

“A passenger or guest has the right to place reasonable reliance upon the assumption that the driver will discharge his duty of looking and listening, and stopping for that purpose if necessary, before he proceeds to drive the automobile onto a railroad crossing; and a guest who does so rely upon the driver is entitled to recover against the railroad, if the driver does maintain a proper and sufficient lookout and the accident, in which the guest is injured, occurs despite that fact.”

One further case, Loughrey v. Penn. Rd. Co., 284 Pa., 267, 131 A., 260, is of more than passing interest. Therein a guest sought recovery. In approaching a crossing, the driver acted as if he were going to stop, but instead suddenly shot ahead onto the crossing. The guest in that case was familiar with this cross-over. It was said that if she knew the driver’s actual indention, and made no protest she would have been guilty of contributory negligence. In affirming the judgment in plaintiff’s favor, the court held that “it is an exception to the rule, that the guest cannot be held guilty of negligence as matter of law because he did nothing,” and proceeded to invoke the rule as stated in Blashfield’s Cyclopedia, supra. That court then repeated its prior comment made in Minnich v. Easton Transit Co., 267 Pa., 200, 110 A., 273, 18 A. L. R., 296. It concisely states the view now held by this court. We quote that part which we subscribe to:

‘ ‘ The extent to which one, in the position of a guest, should appreciate an impending peril, and act in relation thereto, depends upon the facts peculiar to each case; unless these are manifest and the inferences to be drawn therefrom clear beyond peradventure, the issues involved must be submitted to the jury for determination. ’ ’

For reasons assigned, the judgment is reversed and the cause remanded for submission to a jury.

Judgment reversed and cause remanded.

Montgomery, P. J., and Putnam, J., concur.


author: Jackson, J.

text:
    In re Estate of Kleinhen: City of Fostoria, Appellant, v. Kleinhen, Appellee.
    (Nos. 463 and 467
    Decided July 19, 1944.)

      Mr. John Bender, city solicitor, for appellant.

      Mr. A. Q. Fuller, for appellee.

      Mr. Lester A. Stewart, for the state of Ohio.
   Jackson, J.

This matter is in this court on appeals on questions of law. It is to be noted that two separate appeals were taken.

In case No. 463 the errors complained of are based on the refusal of the Probate Court to consider a motion for a new trial and the dismissing of the motion without a hearing thereon by reason of an oral motion made by the appellee. Case No. 467 is based upon the action of the Probate Court in dismissing the motion of the appellant to vacate and set aside the judgment of the Probate Court by reason of an oral motion made by the appellee, without granting the appellant an opportunity to be heard. In both cases the action of the court was based upon the opinion that the Probate Court had no jurisdiction to entertain the motion to vacate and set aside the judgment or the motion for a new trial.

The appellee filed a motion to dismiss the appeal in case No. 463 for two reasons: First, that the motions of the appellant for a new trial and to vacate and set aside the decision complained of were not filed within three days from the entering of the decision of the Probate Court on the journal, and neither the transcript nor the bill of exceptions contains any evidence of unavoidable delay as is provided by Section 11578, General Code; second, that the notice of appeal filed in the Probate Court was not given within the twenty days from the entry of the decision appealed from, as provided by Section 12223-7, General Code, nor could it have been given within twenty days from the entering of the overruling of the motion of appellant for a new trial, because such motion was not filed within three days from the entry of the decision complained of, as is required by the provisions of Section 12223-7.

The assignments of error in both cases, and the motion to dismiss will be considered together.

By virtue of Section 11575, General Code, a new trial is defined as “a re-examination, in the same court, of an issue of fact, after a verdict by a jury, a report of a referee or master, or a decision by the court.” Section 11578, General Code, requires that an application for a new trial must be made at the term the verdict, report or decision is rendered, except for the cause of newly discovered evidence material to the party applying, which he could not with reasonable diligence discover and produce at the trial. The application must be made within three days after the verdict or decision is rendered, unless he is unavoidably prevented from filing it within such time.

The journal entry of the Probate Court allowing the claim of Ray D. Kleinhen in the sum of $5,000 was filed on November 1, 1943; the motion for a new trial was filed on November 12, 1943, more than three days from the journalizing of the decision.

The appellant endeavored to cure the failure to file the motion for new trial within three days after the order and judgment of the court, by reciting, in substance, that he was unavoidably prevented from filing it within time, because the city of Fostoria was not notified of the date set for the hearing of the petition and was not otherwise informed, and had no means of knowing, that the judgment was entered on November 1, 1943, but that actual knowledge for the first time came to the city of Fostoria on November 10,1943. The journal entry on the motion for new trial was filed on December 28, 1943, and the notice of appeal was filed on January 7, 1944.

The original papers in the case demonstrate that C. B. Shuman, as mayor of Fostoria, acknowledged service and consented to the allowance of the claim on a document dated September 18, 1943, which notice recites, in substance, that Ray D. Kleinhen will present to the Probate Court of Hancock county, for allowance to him against tbe estate of Anna T. Kleinhen, deceased, a certain claim of $5,000, signed Ray D. Klein-hen, executor of the estate of Anna T. Kleinhen. On September 23rd, Ray D. Kleinhen filed a petition for his claim of $5,000 with interest from the 23rd day of April, 1943; and on November 1,1943, the entry was filed in the court allowing such claim for $5,000.

The mayor had no authority to consent to the allowance of the claim, but he had authority to accept service of an actual suit already filed. The mayor is the responsible head of the city government and the proper person upon whom service of process must be had,- as designated by statute, and therefore he has complete authority to accept the service of notice. The unavoidable circumstance is involved in the failure of the mayor to properly notify the legal authority for the city, namely, the city solicitor. Section 11288, General Code.

Under Section 11578, General Code, such an excuse is not an unavoidable delay and the failure to file the motion for a new trial within three days from November 1,1943, was a failure under the statute. Under the interpretations which the courts have universally given to the statute we are of the opinion that the above circumstances did not place the failure to file within three days, within the category of unavoidable excuse and, hence, there is no error in this respect. 30 Ohio Jurisprudence, 147, New Trial, Section 94; Representative Bus Co. v. Simmons, 26 Ohio App., 367, 159 N. E., 846.

If an improper and unnecessary motion for a new trial is filed following a judgment, it must be treated as a nullity, and in such event the time limitation starts from the date of the original judgment. State, ex rel. Squire, v. Winch, 62 Ohio App., 161, 165, 23 N. E. (2d), 642; State, ex rel. Longman, v. Welsh, 133 Ohio St., 244, 13 N. E. (2d), 119.

However, a motion for a new trial is not necessary to -the determination of a question not requiring the weighing of evidence, or, in fact, a consideration of evidence at all. Bauer v. Heaton, 68 Ohio App., 181, 38 N. E. (2d), 413; Webb v. Champion Coated, Paper Co., 68 Ohio App., 546, 31 N. E. (2d), 96; Wheeling & L. E. Ry. Co. v. Richter, 131 Ohio St., 433, 3 N. E. (2d), 408.

A motion for new trial need not be made where no bill of exceptions is filed, or where the question to be reviewed appears in the transcript and pleadings without any bill of exceptions. Fairbanks, Morse & Co. v. Hill, 48 Ohio App., 418, 194 N. E., 397; Hulett v. Hulett, 18 Ohio Law Abs., 63.

A motion for new trial is not necessary to review a decision of a lower court on a motion to vacate a judgment during the term. Slater v. Brown, 43 Ohio App., 497, 183 N. E., 393.

While the court was in error in holding that he lacked jurisdiction to entertain a motion for new trial in such a case, yet his action in dismissing the motion for new trial was correct because it was not filed in accordance with Section 11578, General Code. It has been held many times in Ohio that a wrong reason for a correct decision is of no avail in a reviewing court. Indeed, there is no holding to the contrary. Price v. Snyder, 19 Ohio Law Abs., 48.

A different situation is presented with reference to the motion of the appellant to vacate and set aside the judgment. The motion to vacate and set aside the judgment was filed on November 12, 1943, with reference to the journal entry filed on November 1, 1943. There is no three-day limitation in connection with a motion to vacate and set aside a judgment. The Probate Court asserted that it had no jurisdiction to entertain such -a motion, and dismissed the same, for which error is claimed.

On February 23, 1944, the journal entry was filed on the motion to vacate and set aside the judgment. On February 23, 1944, the notice of appeal was filed with reference to the action of the court, as demonstrated in the journal entry of February 23,' 1944.

The terms of the Probate Court are defined in Sections 10501-18 and 11643, General Code, in which it is recited that in estimating time, the Probate Court, for the purpose of vacating or modifying its orders or judgments, will be considered as holding in each year, three terms of four months each, commencing on the first law days in January, May and September, and ending on the last law days of April, August and December, respectively.

In the instant case the journal entry of the judgment complained of and the motion to vacate and set aside the judgment were filed in the same term. If a judgment is attacked during the same term it is done by motion, as was done in the instant case. Under Section 10501-17, General Code, the Probate Court has the same powers as the Common Pleas Court to vacate or modify its judgments. In re Estate of Shafer, 74 Ohio App., 33, 56 N. E. (2d), 926.

The court below dismissed the motion of appellant to vacate and set aside the judgment, because it was of the opinion that it had no jurisdiction to entertain such a motion. The rule is that a court of general jurisdiction has inherent powers to vacate or modify a judgment' during the term at which it was rendered. It has been expressly provided by statute that the Probate Court shall have the same power as the Common Pleas Court to vacate or modify its judgments. 23 Ohio Jurisprudence, 1161, Judgments, Section 1033.

In construing Sections 10501-17 and 10501-53, General Code, the courts have held that the Probate Court has not only the same jurisdiction at law and in equity to vacate or modify its own orders and judgments as has the Court of Common Pleas, but also that its jurisdiction in that respect is not limited either by the Constitution or legislative enactment, to statutory grounds only, and that such jurisdiction includes equitable grounds as well. Abicht, Exr., v. O’Donnell, 52 Ohio App., 513, 3 N. E. (2d), 993; Hooffstetter v. Adams, 67 Ohio App., 21, 35 N. E. (2d), 896; In re Estate of Vanderlip, 39 Ohio Law Abs., 314; In re Estate of Blue, 67 Ohio App., 37, 32 N. E. (2d), 499.

The Probate Court has complete control over its judgments and should have given the appellant an opportunity to present the evidencé for determination by the court as to whether the judgment should or should not have been vacated and set aside. In this manner only can the judgment of the Probate Court be examined by the appellate court as to whether the judgment was or was not contrary to law in the trial court. Therefore it becomes necessary to examine the transcript of the docket and journal'entries and the original papers exclusive of the bill of exceptions connected with the case, to ascertain if proper service was had and if proper waivers were executed.

This inquiry is directed only to the action on the part of the city of Fostoria, by C. '33. Shuman, its mayor. The acknowledgment of service and the consent to the allowance of the claim is dated September 18, 1943, without any specific explanation except that in the future, at some time, Ray D. Kleinhen would present a certain claim of $5,000 against the estate.

The record also indicates that the petition of Ray D. Kleinhen for allowance of the claim of $5,000, with interest from the 23rd day of April, 1943, was filed in the Probate Court on September 23, 1943, so that in truth and in fact at the time of the acknowledgment of service, no petition for allowance to Ray D. Kleinhen of the claim was on file in the Probate Court.

Section 11288, General Code, provides how service shall be had upon municipal corporations and undoubtedly the mayor had the authority to acknowledge the service, provided an actual lawsuit was in existence at the time of the acknowledgment of service. However, the mayor had no authority to consent to the allowance of the claim. Since the mayor had no authority to acknowledge service in the manner and form above noted, the city of Postoria was not a party before the court on November 1, 1943.

It is fundamental that objection to the jurisdiction of the person can be made at any time, and it is our view that the motion to vacate and set aside the judgment on the part of the city of Postoria was an effort to demonstrate to the court that no jurisdiction was had as to the city of Fostoriá by reason of the acknowledgment of service.

It, therefore, follows that the action of the Probate Court on the motion for a new trial is correct, but that the action on the motion of the appellant to vacate and set aside the judgment is error, and the judgment or order of the Probate Court as of February 23, 1944, is set aside and the cause remanded for further proceedings according to law.

The motion to dismiss the appeal is sustained as to Case No. 463 and is overruled as to Case No. 467.

In the brief of appellee, Section 10509-109, General Code, is cited. This section was repealed, effective June 26, 1939.

Judgment accordingly.

Middleton, J., concurring.

Guernsey, P. J., not participating.


author: Guernsey, J.

text:
    Kloeppel, Appellant, v. Putnam, Treas., . Appellee.
    (No. 167
    Decided March 5, 1945.)'

      Mr. F. E. Warren, for appellant.

      Mr. Kerns Wright, for appellee.
   Guernsey, J.

This is an appeal upon questions of law, from a judgment of the Court of Common Pleas of Van Wert county, Ohio, in an action wherein Hazel Kloeppel, the appellant herein, was plaintiff, and Walter E. Putnam, treasurer of Van "Wert county, Ohio, the appellee herein, was defendant. ,

The plaintiff filed her petition in the Common Pleas Court of Van Wert county, Ohio, praying for an order permanently enjoining the defendant, the treasurer of Van Wert county, Ohio, from collecting as taxes the expense of constructing a certain partition fence along her land. To the petition the defendant filed a general demurrer. The Common Pleas' Court sustained the demurrer and, the plaintiff not desiring to plead further, dismissed plaintiff’s petition at her costs. This is the judgment from which the plaintiff has appealed.

In her petition the plaintiff alleges that she is the owner of a certain 40-acre farm in Van Wert county, Ohio; that she resides in an adjoining county; that the farm is and has been rented throughout the ten years the plaintiff has owned it, under a grain rent farm lease; and that there are no buildings, wells, streams, woods or permanent pasture on the farm.

Plaintiff further alleges that part of the farm had been fenced by the prior owner, who had other land with buildings adjoining this parcel, and no new fence had been constructed by plaintiff or any field used for livestock during the entire time plaintiff owned such farm.

Plaintiff further alleges that she has always farmed the premises as a strictly grain farm which is the method of farming employed by most of the neighborhood in which this farm is located; and that she never intends to stock or pasture the farm because of the small acreage, lack of facilities, buildings, waters, fences and improvements, and for the further reason that the cost of converting such a small parcel of land into a stock farm would be prohibitive, the acreage being too small to justify the expense of such improvement.

Plaintiff further alleges that on September 8, 1943, one Clarence Mox, on behalf of the Mox estate, made an application in writing to the township trustees of Washington township in the county in which such premises are situated, to view the premises where ho had requested a partition fence to be erected on the line between the premises owned by the estate and the premises owned by plaintiff, and to assign to each party his equal share of such fence; and that the trustees, over the objection of plaintiff, complied with such request, and after due notice to plaintiff did order plaintiff to build within a certain time a specified onelialf of such fence and “Mox estate” to build the other half.

Plaintiff further alleges that she refused to comply with the order; that upon application of the estate the township trustees, on the 8th day of November 1943, contracted to have the fence constructed with one Edward Iiorstman, lowest responsible bidder; and that tlie fence was bnilt.

Plaintiff further alleges that on or about February-15, 1944, the township trustees caused the expense and costs of the fence to be certified to the county auditor of Van Wert county, Ohio, to be charged upon the tax duplicate against the lands of plaintiff, the certificate for the fence construction and cost being in the sum of $124.90, that such charge having been made, the defendant as such county treasurer now threatens to collect the same as a lien upon the lands of plaintiff, and that plaintiff is without an adequate remedy at law.

Plaintiff further alleges that the fence, for the reasons above set forth, is of no value or benefit whatsoever to plaintiff.

The prayer of the petition is that the defendant, as treasurer, be perpetually enjoined from collecting the expense of constructing the partition fence from plaintiff, and for further relief.

The plaintiff assigns error in that the judgment of the Common Pleas Court sustaining the demurrer and dismissing plaintiff’s petition is contrary to law.

It will be noted that the plaintiff does not question the regularity of the proceedings under which the assessment sought to be enjoined was made, her only contention being that, by reason of the nature of her premises and the purpose for which she is using and contemplates using the premises, she derives no benefit from the construction of the fence; and that as she receives no benefit from the construction of the fence, the assessment comes within the constitutional inhibition forbidding the taking of private property for public use without compensation.

In support of her contention she relies on the decision of the Supreme Court in the case of Alma Coal Co. v. Cozad, Treas., 79 Ohio St., 348, 87 N. E., 172, the syllabus of which reads as follows:

“1. The provisions of the Constitution forbid not only the taking of the private property of one, but as well the laying of an imposition upon it, for the sole benefit of another. '
“2. The act of April 18, 1904 (97 Ohio Laws, 138), may not be so construed and administered as to charge an owner of lands which are, and are to remain, unenclosed, with any part of the expense of constructing and maintaining a line fence for the sole benefit of the adjoining proprietor.”

The decision above mentioned was considered, discussed and explained in the case of Zarbaugh, Treas., v. Ellinger, 99 Ohio St., 133, 124 N. E., 68, 6 A. L. R., 208. Attention is called to the fact that in the decision in that case the court did not hold the statutes, relating to the construction of partition fences, which are similar to the statutes now in effect relating to the same subject matter, were unconstitutional but simply denied the right to invoke their application to a situation such as was found in that case. The. situation found in that case was that the lands of the coal company, which were assessed for the construction of a partition fence, were wild, uncultivated and unfenced, that the company had no intention to improve, fence or cultivate any portion of them, and that the fence could be of no value to it whatsoever and inured to the sole benefit of the adjoining proprietor.

The court, in its opinion, stated further that in that case there could be no compulsion, under the police power, to build the fence or contribute to the cost of it because there was no such use of the coal company’s property as to indicate probable injury to its neighbors or the community in the absence of a fence.

The court in the Zarbaugh case, supra, commenting upon the nature of a fence assessment, makes the following statement:

“The assessment differs from a special assessment to pay for a public improvement made by a governmental body. In tbe latter case tbe special assessment is made and sustained because tbe public improvement confers a special benefit on tbe property assessed, different from tbe general benefit conferred on tbe public; and tbe special assessment must be limited to tbe extent of tbe special benefit. But, in tbe case of tbe fence, there is no assessment in tbe sense just described. Tbe owner is required by tbe statute to himself build bis part of tbe fence. That is a duty that is imposed upon bim, because of tbe situation and tbe use made of bis property; and because of its relation to the property of bis neighbors. If be does not perform it, tbe designated authorities proceed to build tbe fence and collect tbe cost thereof from bim in tbe manner laid down in tbe statute.
“Tbe state is invested with tbe power in tbe presence of tbe necessities of economic conditions to prescribe such regulations with reference to persons and property as are reasonable and have a real relation to tbe subject.”

Tbe court quotes with approval from tbe opinion in tbe case of Noble State Bank v. Haskell, 219 U. S., 104, 55 L. Ed., 112, 31 S. Ct., 186, involving tbe constitutionality of a law passed in tbe exercise of police power, tbe pertinent part being as follows:

“An ulterior public advantage may justify a comparatively insignificant taking of private property for what, in its immediate purpose, is a private use.”

Tbe factual situation in tbe instant ease differs from tbe factual situation in tbe case of Alma Coal Co. v. Cozad, Treas., supra, in that in tbe instant case tbe lands assessed áre under cultivation while in that case tbe lands assessed were wild and uncultivated.

In tbe case of Jennings v. Nelson, 15 Ohio App., 395, tbe statutes relating to tbe subject of partition fences, then in effect, which statutes are in all respects similar to the statutes relating to the same subject matter now in effect, and the decisions under such statutes, including the decisions in the case of Alma Coal Co. v. Cozad, Treas., supra, and Zarbaugh, Treas., v. Ellinger, supra, at page 137, are considered and discussed, and the following conclusion reached: “If land is cultivated, or to be cultivated, no one can deny that a fence is beneficial to it. A fence which partially encloses cultivated land is beneficial to some extent. If it encloses the field adjoining, it will prevent injury from stock in that field. Even if it does not enclose such field it will prevent in some degree encroachment by stock kept on the other side of the fence. Besides, when a farm is fenced on one side it requires just that much less exercise of muscle and outlay of money to complete an entire enclosure, which is generally necessary to the proper cultivation of the tract. Every rod of partition fence added to a tract of land which is under cultivation and is intended for cultivation adds that much to the value of the farm. It is no argument for the landowner to say that because he does not want a fence, and will take all chances from straying livestock, the fence will be of no benefit or value to his land. Except in cases where the partition fence will be of. no benefit, as when the land is wild and uncultivated and is to remain so, the owner must build his fences whether he regards them as of any benefit or not. ’ ’

As these statutes with reference to the subject of partition fences constitute regulations within the police power, as held by the Supreme Court in the Zarbaugh case, supra, we approve the conclusion above quoted.

Applying this conclusion to the facts in the instant case it is clear that the plaintiff derives sufficient benefit from the construction of the partition fence to sustain the validity of the assessment.

For the reasons mentioned, the judgment of the Common Pleas Court will be affirmed.

Judgment affirmed.

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


author: Doyle, J.

text:
    Steudel et al., Appellees, v. Troberg et al., Appellants.
    (No. 1100
    Decided May 23, 1945.)

      Messrs. Boer & McClelland and Mr. John B. Hancock, for appellees.

      Mr. Wayne C. Black, for appellants.
   Doyle, J.

This case is submitted as an appeal on questions of law and fact from a judgment of the Court of Common Pleas of Lorain county, wherein the defendants were enjoined from the operation of a boat rental business on property abutting on Lake Erie in the village of Sheffield Lake, Ohio.

The plaintiffs are the owners of adjacent property. Their suit was based upon a claimed violation of a zoning ordinance of the village, in that the defendants had unlawfully changed the use of the property. The trial court sustained the charges and issued an injunction.

The zoning ordinance of the village, enacted in 1928, restricted the use of the defendants’ premises and the property adjacent thereto to residential purposes. It provided, however, that a nonconforming use existing at the time of the passage of the ordinance could be continued, and as a result thereof the property was used for the most part for restaurant purposes, with and without permits for the sale of beer, until the year 1942, when it came into the possession of the present defendants, who commenced the boat livery business, here under challenge.

The ordinance divides the uses of the property within the created district into four groups: 1, “residence classes”; 2, “business classes”; 3, “industrial classes”; and 4, “special classes.” Subdivision 3 of group 2 (business classes) is as follows:

“Retail trade or shop for custom work or the making of articles to be sold at retail on the premises; restaurant ; theatre; moving picture show. Any use not included in any other class, providing such use is not noxious or offensive by reason of the emission of odor, dust, smoke, gas or noise.” (Italics ours.)

Another provision of the ordinance (Section 8) undertakes to regulate the extension of a nonconforming use and to define the word “change” as applicable to a nonconforming use.

There is no specific provision in any of the groups for the operation of a boat livery business. It is asserted, therefore, that it may fall within the provisions of group 2, subdivision 3, if such use “is not noxious or offensive by reason of the emission of odor, dust, smoke, gas or noise.” And if it can be there placed, then such use is not a “change”.of use from the restaurant use within the definition of the word “change.”

Inspection of Section 8 shows:

“A nonconforming use existing at the time of the passage of this ordinance may be continued. A nonconforming use shall not be extended except as authorized by the preceding section but the extension of a use to any portion of a building which portion was arranged or designed for such nonconforming use at the time of the passage of this ordinance shall not be deemed the extension of a nonconforming use. A building arranged, designed or devoted to a nonconforming use at the time of the passage of this ordinance may not be reconstructed or structurally altered to any extent exceeding in aggregate cost, during any ten-year period, 40% of the assessed value of the building unless the use of said building is changed to a conforming use. A nonconforming use may not be changed unless changed to a higher use. * * * For the purpose of this ordinance a nonconforming use shall be deemed to be changed if changed from a use included in a subdivision of a use class to a use not included in such subdivision. * * *”

It is obvious that the beer and restaurant business could have been continued because of its existence at the time of the passage of the ordinance. It is likewise obvious that such business use could not be “changed,” except to a use included in the “residence classes” (a higher use). Does the supplanting of the restaurant business with a boat livery business constitute a “change” as that word is used in the ordinance?

Under each of the four groups, heretofore mentioned, are several subdivisions, and in each subdivision there are in most cases several uses specifically mentioned, except that in subdivision 3 of group 2, heretofore set out in full, there appears a blanket provision covering uses not specifically mentioned.

As we construe the ordinance, a nonconforming úse is not deemed “changed’.’ if the use falls within the same subdivision of the use class. In other words, a “moving picture show,” a “theatre,” or a boat livery, if the latter is not noxious or offensive, etc., are all within the same use class,' and a transfer from one to another within the subdivision does not constitute a change within the language used. If, however, a business not named or recognized in the particular subdivision supplants a business therein named or recognized, such use shall be deemed “changed” and therefore unlawful, unless changed to a higher use. If the village council did not intend this meáning of its ordinance, there was no reason for the incorporated provision.

Under the construction of the ordinance heretofore set forth, if the boat livery business “is noxious or offensive by reason of the emission of odor, dust, smoke, gas or noise,” such use violates the ordinance and should be enjoined. If it cannot be so charged, it is a permissive use and should be permitted to operate.

The only evidence in the record on this question is that, in the operation of the business, boats are launched on Lake Erie, and many of them are operated by outboard motors which make a noise when running on the lake; also that various industrially employed persons, when oft duty, and others, use the facilities for fishing and boating recreation during both the daytime and the nighttime. It does not appear that the business directly carried on, on the zoned premises, has any of the vices set out in the ordinance, but that noise does occur on the lake from the operation of the boats.

The title to the land under Lake Erie within the limits of the state of Ohio is in the state, as trustee for the benefit and welfare of all the people for the various public uses to which it may be adapted. The riparian owners are entitled as against all but the state “to certain valuable privileges or easements, of which one of the principal privileges is the right of access to the navigable part of the stream from the front of his land.”

See cases cited in 41 Ohio Jurisprudence, Waters and Waterworks, Sections 114 and 117.

The waters of Lake Erie are open to all for fishing, boating and recreation, subject only to such control as the state and the federal government may exercise within their respective jurisdictions. The use of the waters cannot be controlled in these respects by abutting cities or villages. The use of motor boats on the lake has long been recognized as a legitimate use, regardless of the noise of the motors. And boat owners or renters, with or without motors, from far and near, could legitimately use the lake in front of the zoned premises if they desired.

It appears that property immediately adjacent to the premises in question is used for public recreation purposes, and that the boat livery in question, although privately operated, would enhance and improve the opportunities of the general public, in conjunction with the use of the public park, to enjoy to a greater extent the.natural resources of the territory.'

The problem before this court on this phase of the case is whether the noise on Lake Erie is in legal contemplation noise on the zoned premises, and thereby brings about a violation of the ordinance.

• The members of this court do not believe it necessary to discuss at length the philosophical or legal intricacies of “cause and effect.” These questions have been the subject of debate through the ages. Interesting articles may be found in 72 Univ. of Pa. L. R., 211 and 343; 39 Harvard L. R., 149; Lord Haldane, The Beign of Relativity, pp. 125, 126.

It seems to us that our guide as to the meaning of the ordinance is the reasonable expectation and purpose of the ordinary man who sits in council chambers and enacts ordinances and laws for the welfare of the people at large. In this guide we follow the principle so well grounded in the law of contract construction — what was in the minds of the contracting parties

It has been said that ‘ ‘ ‘ Causation is not a chain, but a net. At each point, influences, forces, events, precedent * * *, meet, and the radiation from each point extends infinitely’ (Leyland Shipping Co. v. Norwich Fire Ins. Society, supra [118 Law Times, 120]). From this complex web, the law picks out now this cause and now that one. The same cause producing the same effect may be proximate or remote as the contract of the parties seems to place it in light or shadow. That cause is to be held predominant which they would think of as predominant. A common-sense appraisement of everyday forms of speech and modes of thought must tell us when to stop. It is an act of ‘judgment as upon a matter of fact.’ ”

Bird v. St. Paul Fire & Marine Ins. Co., 224 N. Y., 47, at p. 51, 120 N. E., 86) 13 A. L. R., 875.

“Cause” is an extremely indefinite expression. “For a majority of our population, the cause of fire is the match which,is lighted and applied. For the physicist the cause of the fire is the conversion of potential into kinetic energy, through the combination of carbon atoms with those of oxygen and the formation of oxides in the shape of gases which become progressively oxidized.” In each case there is a different field of inquiry, determined from a different standpoint. In the treatment of the problem of causation before us, we must pick out the cause which in our judgment ought to be treated as the dominant one with reference, not only to the event itself, but to the legal consequences which ought to attach to it. And in our consideration of these legal consequences, we must be guided by the reasonable expectation and purpose of the members of the village council when the ordinance was enacted.

It is our conclusion that council did not intend to restrict in any way the use of Lake Erie, nor to treat the operation of a reasonably noiseless business on a zoned property as a cause to which consequential noise elsewhere, and on property over which they had no control, should be given legal cognizance.

Decree for appellants.

Decree for appellants.

Washburn, P. J., and Stevens, J., concur.


author: Carpenter, J.

text:
    Sacks, Appellant, v. Johnston, Gdn., et al., Appellees.
    (No. 3969
    Decided June 7, 1943.)

      Mrs. Eva Epstein Shaio, for appellant.

      Mr. James Eye, for appellees.
   Carpenter, J.

By this appeal on questions of law the plaintiff brought to this court for review a verdict and judgment adverse to him.

The plaintiff’s claim was against his mother and her guardian, defendants, appellees herein, under an alleged oral contract made with her about April 1, 1936, by which he agreed to do work about her home and other properties owned by her and she agreed that “she would pay him well for all of his services” and furnish him board and lodging. He claims he so served from the date of the contract to April 1,1942, and asks judgment for $3,120, being at the rate of $10 per week.

On October 14,1940, the mother, who was then about 87 years of age, and a widow, was found to be an incompetent person and her son-in-law was appointed guardian of her person and estate. Later, he was removed and on February 28,1942, the defendant LaDow Johnston was appointed successor guardian. He answered, denying the contract and alleging as a defense that plaintiff presented to him a bill for services at $10 per week from September 1, 1940, to February 28,1942; that he, as guardian, filed an application with the Probate Court seeking instruction with reference to such claim; that testimony was taken and the court found the claim invalid and ordered him not to pay it; and that no appeal was taken from that order. As a third defense, the guardian alleged that neither he nor his predecessor guardian made any contract with plaintiff to perform any services for his ward. A demurrer by plaintiff to these defenses was sustained.-

At the trial, Emil Sacks, plaintiff’s brother, who then lived in the family home with the aged mother and plaintiff, testified that he heard a conversation between them substantially as alleged by plaintiff. Evidence as to the nature and value of his services was also received.

The guardian called as a witness a clerk in the office of the Probate Court and through him offered in evidence, and the court received, the original application filed by the guardian in the Probate Court as alleged in the second defense in the answer, which defense had been stricken out, and that court’s journal entry finding the claim invalid. While counsel for plaintiff did not specifically object to these exhibits, ydien that witness had concluded his testimony counsel “requested” the court to withdraw all of it from the jury and the court said “your request is denied.” Then counsel excepted, thus amply saving the record. Section 11560, General Code. That was prejudicial error for two reasons:

1. That defense had been stricken from the answer, and there- was nothing in the pleadings as they stood to warrant such evidence.

2-, The only basis for a proceeding by a guardian for the instruction of the court in the performance of a duty like this is found in Section 10504-66, General Code, which provides that:

“Any fiduciary may maintain an action * * * agáínst the creditors * * * or other parties, asking the direction or judgment of the court in any matter respecting the trust * * * and the rights of the parties in interest, in the manner, and as fully, as formerly was entertained in courts of equity.”

Section 11237, General Code, reads:

“An action is an ordinary proceeding in a court of justice, involving process, pleadings, and ending in a judgment or decree, by which a party prosecutes another for the redress of a legal wrong, enforcement of a legal right, or the punishment of a public offense.”

Whatever concept the word “action” as used in Section 10504-66, General Code, may have, if the resulting judgment is to bind a person and become res judicata as to him, it surely contemplates an adversary proceeding with process upon the person to be so bound or a waiver of it. In this matter, process or notice to this plaintiff was not shown, either as pleaded in the answer or as appears from the exhibits and the testimony of the clerk as to that record, and the entry made no finding in respect thereto. The judge of the lower •court who sustained the demurrer to this defense correctly said it was only an ex parte proceeding and could not bind Frank Sacks.

These exhibits going with the jury in its deliberations might very well have influenced the verdict and have been highly prejudicial to the plaintiff’s cause.

After the jury had deliberated for several hours, it asked the court for information and in the presence of counsel for both sides in the courtroom, the foreman said:"

“At some time during the series of questioning Emil Sacks was on the stand and there was a question asked him about any time that he (meaning plaintiff) requested money from his mother, and was refused on the ground that they needed the money to repair a certain building on Monroe and Ontario, and we were wondering what date that was supposed to have been. ’ ’

The court below refused this request, and the jury resumed its deliberations, and shortly returned with its verdict for the defendants.

That item of testimony was quite definite and covers less than a page in the bill of exceptions, and if the judge could not give his recollection about it, the reporter could easily .have read it to the jury. This •court recognizes that Section 11420-6, General Code, gives the trial judge a broad discretion in its instruction to the jury on disputed points of fact during its deliberations, and if this were the only error considered, the court would not be disposed to reverse on it, but it seems to it that this definite request should have been granted.

Under Section 11495, General Code, the plaintiff was incompetent to give the testimony which the court exT eluded and no error was committed in this respect.

For the error in evidence pointed out, the judgment is reversed and the cause remanded to the lower court for a new trial.

Judgment reversed and cause remanded.

Lloyd and Stuart, JJ., concur.


text:
    Zook, Appellee, v. Dempsey et al., Appellants.
    (No. 3761
    Decided November 18, 1944.)

      Mr. Benson Ogier, for appellee.

      Mr. August W. Weber, for appellants.
   By the Court.

This matter is before the court on an appeal on questions of law from a judgment of the Municipal Court of the city of Columbus finding in favor of the plaintiff.

The matter on trial before the Municipal Court was presented on a petition in replevin and a cross-petition thereto. On April 10,1944, the Municipal Court made a memorandum to the following effect:

“Case called; jury impaneled and sworn; witnesses sworn and testified; trial had and concluded; jury returned verdict finding right of property or possession of chattels described in petition to be in plaintiff at the time of the commencement of the action and assess to plaintiff as damages for wrongful detention thereof $250 * * *.”

A motion was made to set aside the verdict for the reasons stated and for judgment non obstante veredicto.

On April 25, 1944, the Municipal Court made the following notation on its docket:

“Motion of defendant for judgment non obstante; motion for new trial overruled; final judgment entered as per verdict of jury April 10, 1944; draw entry accordingly. ’ ’

The further notation was made under date of July 17,1944:

“Entry filed * * *.” The entry filed on July 17,1944, is in the usual form overruling the motions for judgment ndn obstante and for new trial, and the court finds motions not well made and overrules the same, and “coming now to render final judgment as per the verdict of the jury it is ordered that the right of possession * * * is found to be in the plaintiff, * * * and it is ordered that a writ of replevin issue,” etc.

The same entry was made in the case of the cross-petition of Harriett Dempsey. On the 19th of July 1944, notice of appeal was filed stating that the plaintiff would take notice of the intention of the defendants to appeal from the judgment of the Municipal Court rendered July 17, 1944, said appeal being on questions of law.

On September 10, 1944, plaintiff filed a motion in this court for an order dismissing the appeal filed by the defendants, for the reason that the appeal was not perfected. There is a short memorandum attached to the motion, which, after reciting the facts, states as a ground for dismissal: “This entry was not filed until on or about the 19th day of July. However, the final judgment was rendered on the 26th day of April, 1944, on the half-sheet of the Municipal Court and was the final judgment rendered therein.”

No further argument is presented in support of the motion. There is the usual assignment of error.

Section 12223-7, General Code, provides for the time for perfecting an appeal. The question here presented is whether the entry of April 25, 1944, or that of July 17, 1944, was the final entry of the conrt below, from which notice of appeal was given.

On June 17, 1942, this conrt had occasion, in the case of Meslch v. Home Furnace Co., 36 Ohio Law Abs., 531, 44 N. E. (2d), 379, to state the circumstances incident to the trial in the Municipal Court, and stated: “Examining the record in the Municipal Court we are unable to find any judgment entry. We do find this notation :***.” The notation is quite similar to the memorandum made by the trial court in this case.

The conrt said in the case cited:

“This brief notation does not rise to the dignity of a judgment of a court, and we are tempted to send the case back on the ground that there was never any final entry in the Municipal Court and that, therefore, the Court of Common Pleas had no jurisdiction.”

However, there is in the case at bar a correct final judgment entry under date of July 17, 1944. We are of the opinion that that entry was a final entry from which appeal might be taken, and the notice of appeal being given two days after the final entry of July 17th, and that appeal being perfected, we are of the opinion that the appeal was filed within proper time.

This conrt in Fifty West Broad, Inc., v. Poulson, 75 Ohio App., 194, 41 Ohio Law Abs., 212, had occasion to review at length the statutes controlling appeals, in which opinion are' cited many pertinent cases.

The motion to dismiss the appeal is overruled.

This matter is submitted at this time solely upon the motion to dismiss and not on the merits, which branch of the case will be considered later by the court, after the same has been argued and briefed by both counsel.

Motion overruled.

Hornbeck and Montgomery, JJ., concur.

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


author: Hornbeck, J.

text:
    Whisman, Appellant, v. Willis, Appellee.
    (No. 113
    Decided January 4, 1945.)

      Mr. Clinton D. Boyd, for appellant.

      Messrs. Kiracofe S Clark, for appellee.
   Hornbeck, J.

This is an appeal on questions of law from a judgment for tbe defendant entered upon a directed verdict. There are sis errors assigned but one is determinative of the appeal, namely, that the court abused its discretion in directing the verdict under the procedural facts appearing.

The action was for money claimed to be due plaintiff as real estate commission under contract for property listed with plaintiff, owned by the defendant and which he had sold. The cause of action was in form upon an account. Issue was drawn and' cause tried to a jury. At the conclusion of the plaintiff’s case in chief, defendant moved for a directed verdict for the reason that “no evidence had been offered tending to show any right in the plaintiff to recover commission for the sale of the real estate,” “the evidence does not show he is a licensed real estate broker” and there is no evidence to show “consideration to support the contract.” There is no basis for the last part of the motion.

When the motion was submitted, the petition did not allege that when plaintiff’s cause of action arose he was a licensed real estate broker under the laws of the state of Ohio nor was there any proof of such fact.

The court in considering the question first stated that, as there was no averment and no proof of an essential fact the motion was well taken, but, also, noted that plaintiff’s counsel had “indicated a desire to have the opportunity of introducing evidence establishing the fact, if it be a fact, that his plaintiff was a licensed broker and if that would remedy the situation privilege" to so open his case.” The court then noted that there was no allegation in the petition that plaintiff was a licensed real estate broker and observed that he did not think it proper to' permit an amendment to the petition at that time. The court was of opinion that both leave to offer testimony and leave to amend the petition should not be granted.-

The question is, did the trial judge upon the record, abuse his discretion in refusing to permit the plaintiff to offer further testimony and then to amend the petition to conform to the testimony, if it established that his client was a licensed real estate broker under the laws of the state of Ohio? In the situation thus presented, it must be conceded that the court had wide discretion.

It should be noted there is no proffer of proof in the record which would establish that plaintiff was a licensed real estate broker when his cause of action arose, nor is • there specific assertion that the proof would establish the plaintiff to have been a licensed real estate broker. The request was to take testimony to develop whether plaintiff was a licensed broker. Nor was any amendment in writing tendered or, in fact, any form of amendment specifically suggested.

The record does not exemplify the question sought to be raised in such explicit form as to require this court to hold that the trial judge abused his discretion in sustaining the motion to direct the verdict.

In Smith v. Rhodes, 68 Ohio St., 500, 506, 68 N. E., 7, Judge Price says:

Counsel informed the trial court that they desired to so amend the answers as to make the excluded evidence competent; but no amended answer was tendered to the court to act upon, for we find none in the record. Stating what was desired as an amendment was not sufficient.”

Counsel for plaintiff cites United Fuel Gas Co. v. City of Ironton, 107 Ohio St., 173, 179, 140 N. E., 884, 29 A. L. R., 342, and Kauffman v. Schauer, 121 Ohio St., 478, 483, 169 N. E., 566. The former case is of no assistance and in the latter cited case the error found by the Supreme Court was in the refusal of the trial judge to permit the amendment of a petition to conform to the proof. Here the record shows neither the essential proof to entitle plaintiff to recover nor any tender of appropriate amendment to the petition to support the reception of the proof.

The judgment will be affirmed.

Judgment affirmed.

G-eiger and Nichols, JJ., concur.

Nichols, J., "of the Seventh Appellate District, sitting by designation in the Second Appellate District.