author: Hornbeck, P. J.

text:
    Landis et al., Gdns., Appellants, v. Condon et al., Appellees.
    (No. 2179
    Decided April 3, 1952.)

      Mr. Herbert H. Eikenbary, for appellants.

      Messrs. Scharrer, Scharrer S Hanaghan, for appellees.
   Hornbeck, P. J.

This is an appeal on questions of law from a judgment of the Common Pleas Court dismissing plaintiffs’ amended petition after the sustaining of defendants’ general demurrer thereto.

By the amended petition, the plaintiffs, parents of the minor child, Carl Landis, instituted this action in his behalf, alleging :

“That on the date alleged Carl Landis, while walking along a corridor in the Colonel White School, the child of the defendants, Fred Condon, aged fourteen years, did willfully and maliciously attack the son of Nathan and Clara Landis by jumping upon his back and throwing him to the floor of said corridor.”

The injuries suffered are set out, and the amended petition continues and avers:

“That the parents and guardians of said Fred Con-don, well knew said child to be of vígíous propensities and disposition, and that said child should not have been at large, without a proper guard or watch over said Fred Condon, and that said parents, the defendants herein, were negligent in letting said child run at large, knowing full well the reckless and vicious disposition of said child.”

The brief of plaintiffs, appellants herein, quotes the decision of the trial court on the demurrer as follows:

“But the difficulty with the amended petition is that the facts with regard to the source of knowledge of the child’s vicious character are wholly omitted and we are supplied only with the conclusion that the defendant parents possessed such knowledge. And a mere conclusion of fact or law is not admitted by demurrer.”

Condensing the amended petition, it avers the fact of the assault, which it is claimed was willful and malicious; that it was made by the son of the defendants; that the son had vicious propensities and disposition, known to the parents; and that they negligently failed to properly guard or restrain the child.

There is a paucity of adjudication in Ohio upon the question presented. Of course, it is a safe proposition to say that conclusions of law are not sufficient against general demurrer, but the averment of knowledge is a mixed conclusion of law and fact or of fact alone, and in many instances it is considered to be adequate pleading. For instance, in negligence actions against a city for the maintenance of a nuisance in the streets. In these cases it is essential that notice to the city be pleaded and proved, but such notice is charged by an averment that the city knew or should have known the dangerous condition of which complaint is made.

We are satisfied that the averment of the vicious tendencies of the child of defendants, together with the averment that they were well known to his parents is sufficient against a general demurrer. In the case of Cluthe v. Svendsen, 9 Dec. Rep., 458, 13 W. L. B., 633, it is said that the gist of the action is that the negligence of the parent with knowledge of the vicions propensities of the child made the injury possible.

While the court held in Ringhaver v. Schlueter, 23 Ohio App., 355, 155 N. E., 242, that the parent was not liable for the tort of the minor charged, the reason for the holding was, in part, at least, that the act complained of was not in itself evidence of a weak or vicious mind. Thus, the parent could not be held to be chargeable with knowledge of any vicious propensities of the child.

It is said in Evans v. Cricket, 2 Dec. Rep., 404, 405, 2 W. L. M., 603:

“So, in petitions under the code * * * which requires the facts to be stated, ‘allegations of ownership, possession, * * * notice, demand, delivery,’ and mixed questions of law and fact, * * * may be averred, although the averment is somewhat in the form of a conclusion. ’ ’

See, also, Bates’ Pleading, Practice, Parties & Forms (4 Ed.), 1880, and the form of petition at page 1884.

“An averment of knowledge is not a conclusion of law. * * * It is a statement of fact * * American Surety Co. of New York v. Multnomah County, 171 Ore., 287, 138 P. (2d), 597, 148 A. L. R., 926.

It is our judgment that the amended petition was good against the general demurrer, and that the action of the Common Pleas Court in sustaining the demurrer and entering judgment of dismissal was prejudicially erroneous.

The judgment is reversed, and the cause is remanded with instructions to overrule the demurrer.

Judgment reversed.

Wiseman and Miller, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Schirtzinger, Sr., Appellant, v. Schirtzinger, Appellee.
    (No. 4679
    Decided February 20, 1952.)

      Mr. R. E. Hughes, for appellant.

      Mr. Henry P. Fagan, for appellee.
   Hornbeck, P. J.

Ten errors are assigned to the judgment of the Domestic ’ Relations Branch of the Common Pleas Court.

The court, in the judgment, found the plaintiff-appellant in contempt of court in failing to observe an order of the court for payment of $35 per month for, the support of the minor daughter of the parties. Plaintiff was in arrears in the sum of $275. The daughter had worked for six weeks and had earned $52.50, for which the court allowed plaintiff credit and required payment of the balance.

Plaintiff denied any contempt and claimed that he was relieved from obligation to observe the court order because the minor had been emancipated. He moved also for the setting aside of all former support orders and for his release from any future obligation to support his daughter.

There is no dispute as to the fact that the plaintiff was in arrears in the amount claimed. Upon a showing of such fact, the burden was on the plaintiff as to both his defense of emancipation and his motions to cancel or modify the support orders. The trial court held that he had not met this obligation of proof. In so doing, the court was supported by the evidence.

Emancipation must be proved. Seitz v. Witzberger, 18 C. C. (N. S.), 160, 32 C. D., 655, affirmed 88 Ohio St., 579, 106 N. E., 1076. The only semblance of proof of emancipation of the minor was the fact that she had for a period of time been employed and had earned some money and her room and board had been provided. At the most she was only temporarily employed. There was no proof of any intention of the mother to renounce permanently her rights as a parent. Emancipation “is a product primarily of some act or omission of the parent, and cannot be accomplished by an act of the child alone.” 39 American Jurisprudence, 702, Section 64; Roxana Petroleum Co. v. Cope, 132 Okla., 152, 269 P., 1084, 60 A. L. R., 837.

Upon the motions, it was incumbent upon the plaintiff to prove a change in circumstances which required a change in the support order. The child was not employed at the time of the hearing. The mother claimed and testified that the daughter was unable to work. The minor was not in court, and objection was made to her absence by plaintiff who insisted that he desired to have her physically examined. If plaintiff desired to prove, by a physical examination or by her presence and testimony, that the minor was able to work, he should have taken appropriate legal measures to make certain that she was in court. Plaintiff was put on notice, at an adjourned hearing two weeks before the final hearing, that she might not be present. The trial court did not deny the plaintiff the opportunity to bring the minor into court, but refused to continue the case for that purpose.

The employer of the minor testified that when she was working she was apparently in a good state of health and satisfied with her job. The employer said also that she was willing to give the daughter work, but that the mother was responsible for the child’s leaving of her employment. The trial court had this testimony and had the power to weigh it and resolve it against the plaintiff, which it did.

It appears that at the time the judgment entry went on record the daughter was eighteen years and two months old. Most of the arrearage in the payment of the support money occurred before she had reached eighteen. It is urged that the court should have terminated the order upon the arrival of the daughter at the age of eighteen. This was not required under the statute or the decisions. Mieszkalski v. Mieszkalski, 44 Ohio App., 152, 184 N. E., 709.

Exception was taken to certain remarks of the court reflecting upon the conduct and morality of plaintiff. This is made the subject of grounds of error, in that it showed prejudice of the court against plaintiff and that the information upon which the sta£g< ment was based must have been secured outsjde''any judicial proceeding in the case. The source of the information does not appear, and unless and until it affirmatively is shown that the trial judge was acting upon improper evidence it will not be presumed.

The record supports the judgment of the trial court. The amount of the support order was modest indeed. In this day of high cost of everything that a child must have, the order of $35 per month is entirely inadequate, especially where a father, as here, is well able financially to meet the payment. It is unfortunate that he can subject the defendant and her daughter to the embarrassment and financial distress of meeting-legal and other expenses incident to the necessity of compelling payment of a debt long overdue.

We find no error in any of the particulars asserted in the assignment of errors.

The judgment is affirmed.

Judgment affirmed.

Wiseman and Miller, JJ., concur.


author: Per Curiam.

text:
    Bisesi, Appellant, v. City of Cleveland, Cleveland Transit System, Appellees.

      (No. 22760
    Decided May 11, 1953.)

      Messrs. Sindell & Sindell, for appellant.

      Mr. Robert F. Mooney and Mr. Patrióle F. Doyle, for appellees.
   Per Curiam.

This case involves a collision between a bus of the Cleveland Transit System and a one and one-half ton panelled truck at the intersection of Wagar and Erie roads in Rocky River, Ohio. The truck was going west on Erie road, stopped at the stop sign at its approach to Wagar road and then entered Wagar road, a main thoroughfare, at a speed of about 5 to 10 miles per hour. The bus was proceeding north on Wagar road and struck the truck on its left side from the door back to the rear when the truck was half way across Wagar road. The truck came to rest on a lawn 65 feet north of Erie road on the west side of Wagar road. The bus stopped along the west curb of Wagar road, 30 feet north of Erie road. The plaintiff, the driver of the truck, suffered severe injuries and retained no memory of the occurrence.

At the trial he presented one eyewitness, a housewife, who saw the mishap from the front yard of her home some four houses east of Wagar road along the south side of Erie road. She testified that the truck stopped at the stop sign and was proceeding slowly across Wagar road when struck by the bus which appeared as a flash in the intersection. She had driven an automobile for 20 years and judged the speed of the bus to be between 45 to 50 miles per hour. Objection was made to her opinion as to speed. No other affirmative evidence appears on the record bearing on the question of the negligence of the defendant. The trial court directed a verdict in favor of the defendant at the close of plaintiff’s case.

It is our opinion that the record in this case presents no evidence of a substantive nature tending to show negligence on the part of the defendant. The testimony as to speed is based upon an observation of the vehicle in question but for a fraction of a second. Speed is a physical phenomenon and difficult of accurate ascertainment when applied to a moving object in plain view. An interval of time of sufficient length to give the critical faculties an opportunity to function in formulating a judgment with respect to it must elapse. That time element should be of such reasonable duration as to warrant a conclusion that the opinion is grounded in probability and removed from the realm of speculation. A judgment of the speed of a bus in miles per hour seen as a flash hundreds of feet away can have no valid foundation in fact to justify acceptance as datum, and objection to it should have been sustained. It is the product of sheer conjecture and has no probative value whatever as evidence.

We therefore conclude that the court below did not err in directing a verdict in favor of the defendant in this case.

Judgment affirmed.

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


text:
    Peitsmeyer, Appellant, v. Omar Baking Co., Appellee, et al.
    (No. 4799
    Decided October 17, 1952.)

      Mr. John C. Duffy and Mr. Edward F. Lynch, for appellant.

      Messrs. Ingalls & Jones, for appellees.
   Hornbeck, P. J.

This is an appeal on questions of law from a judgment of the Common Pleas Court entered on the verdict of a jury which found against the plaintiff on her amended petition and against the defendant Omar Baking Company on its cross-petition.

The amended petition of plaintiff contained two causes of action. The first cause of action was for personal injuries claimed to have been suffered by plaintiff in an automobile accident. The second cause of action was for damage to the automobile, which was not .owned by the plaintiff.

The amended petition charged the defendants with joint negligence, and they answered jointly. The defendant Omar Baking Company filed ^ cross-petition in which it sought to recover for damage to its truck by reason of the negligence of plaintiff. The accident occurred at the intersection of Kossuth street and Heyl avenue in the city of Columbus. The plaintiff was driving a 1940 Dodge coupe, alleged to have been owned by her husband, and being used by her with his knowledge and consent. She was driving in a westerly direction on Kossuth street. The defendant O’Brien was operating a truck owned by the defendant baking company in a northerly direction on Heyl avenue. The cars collided in the intersection of the two streets.

Plaintiff’s specifications of negligence were that the defendants did not keep a lookout ahead, that they failed to yield the right of way to plaintiff, and that they failed to have their automobile under control. The defendants answered, denying any negligence and specifically denying that the truck ran into and-collided with the automobile driven by plaintiff. The answer alleges that the collision was caused by the sole negligence of plaintiff in that, after defendant O’Brien had approached the intersection and had stopped the truck, plaintiff drove her car into the truck. It is alleged further that, immediately after the accident, plaintiff acknowledged that it was caused by her sole negligence and signed a statement to that effect. The cross-petition was predicated upon the claim that the plaintiff drove her ear onto the south side of Kossuth street, and while proceeding in a westerly direction, crashed into the right front fender of defendant’s truck; that plaintiff did not keep a lookout ahead; that she failed to stop or turn her vehicle aside so as to avoid running into defendant’s truck; and that she failed to have her automobile under control. The reply consisted of a denial of sole negligence or of any negligence, a denial that plaintiff admitted her negligence was the cause of the collision, and a general denial of the allegations of the cross-petition.

Upon the issues thus drawn, the cause came on to trial. Plaintiff called defendant O’Brien to testify as if under cross-examination. After preliminary questions, these questions were put and answers made:

“Q. Whom are you employed with at present? A. Omar Bakery.

“Q. I’ll ask you if you were so employed by Omar on March 15, 1950? A. I was.

“Q. And as an employee of Omar Baking Company in March, on March 15th, what were your duties? A. Driver-salesman. I had * * * ”

Thereupon counsel for defendants moved to require plaintiff to make an election as to which party she would proceed against. The court sustained the motion, to which plaintiff excepted. The trial court, on motion of defendants, also dismissed plaintiff’s second cause of action for property damage to the automobile. Before argument, counsel for plaintiff tendered certain instructions which plaintiff requested the court to give to the jury.

Plaintiff’s special instruction No. 3 is as follows:

“I charge you, members of the jury, that plaintiff, Joan Peitsmeyer, as she proceeded in a westerly direction on Kossuth street in a lawful manner, had a right to assume, in the absence of knowledge to the contrary, that all northbound vehicles on Heyl avenue, including the truck of the Omar Baking Company, would yield the right of way to her. ’ ’

Plaintiff’s special instruction No. 5 is:

“I charge you, members of the jury, as a matter of law that if you find from a preponderance of the evidence that plaintiff had no operator’s or driver’s license, then as a matter of law, I charge you that the mere fact that plaintiff had no driver’s license at the time of this accident, will not bar her right of action herein unless such violation of the law was an efficient cause of the injury. ’ ’

The court, in its general charge to the jury, said:

“The lawmaking body of the Legislature of Ohio has enacted what is known as the Uniform Traffic Code, and Section 6307-40 of [the] General Code provides in part: ‘Right-of-way at Intersection: Excepting where otherwise provided, ’ the operator of a vehicle, streetcar or trackless trolley shall yield the right-of-way at an intersection to a vehicle, streetcar or trackless trolley approaching from the right. ’ And, also, the Legislature of Ohio has defined right-of-way in this language: ‘The right of a vehicle to proceed uninterruptedly in a lawful manner in the direction in which it is moving in preference to another vehicle approaching from a different direction into its path.’ The General Code further provides that the right-of-way to a vehicle approaching from the right that to proceed uninterruptedly it must proceed in a lawful manner.

“Now, members of the jury, if you find from the evidence in this case that either the plaintiff or defendant or both, in the operation of their vehicles at the time and place in question violated any of the foregoing requirements, which violation or failure to operate under the regulations constitutes negligence on the part of that party or both parties, as the ease may be, who is guilty of such violation?”

After verdict and judgment, plaintiff filed a motion for a new trial, in which the grounds were substantially the same as those set up in the assignments of error in this court.

Plaintiff, appellant herein, assigns eight grounds of error which we will state specifically as we consider them.

The first assignment of error is that the court erred in ordering plaintiff to elect against whom she would proceed in the midst of the examination as if under cross-examination of defendant O’Brien, the first witness.

The trial court, in our opinion, was premature in sustaining defendants’ motion to require plaintiff to elect at the time the motion was made for two reasons: First, the defendant O’Brien having been called to testify as if under cross-examination by plaintiff, the answers made by him were not binding upon the plaintiff. Thus, his statements, if construed to mean that he was an employee of the baking company and on his master’s business when the collision occurred, were self-serving as to himself. Second, although the answer was to the effect that O’Brien was in the employ of the baking company as a driver-salesman on the date of the collision, it was not sufficient to establish that at the time of the collision he was so acting.

However, an examination of the record discloses no evidence admitted or proffered, the effect of which would tend to establish joint liability of defendants. Then, too, as pointed out by the trial court, the jury, by its verdict, found that the defendant baking company was not liable and, manifestly, no other result could have been reached if defendant O’Brien had been retained as a party defendant.

Upon the whole record, although the action of the trial judge in sustaining the motion was erroneous, it was not prejudicial to the plaintiff.

The second assignment is that the court erred in dismissing the second cause of action. This cause of action was based upon the proposition that plaintiff, the wife of the owner of the car, while using it with the consent of her husband was a gratuitous bailee and, as such, had the right to maintain an action for property damages to the car.

It was stipulated that plaintiff’s husband was the owner of the automobile driven by the plaintiff at the time of the collision and that he held the certificate of title. The court held that as her husband owned the car she could not maintain an action for property damage by reason of Section 6290-4, General Code; and that the plaintiff was attempting to assert a right, title, claim or interest in the motor vehicle which she was precluded from asserting by the language of that section and by the adjudication in Mielke v. Leeberson, 150 Ohio St., 528, 83 N. E. (2d), 209, 7 A. L. R. (2d), 1342.

As to the third assignment of error, counsel for plaintiff insist that at common law the plaintiff could have maintained her second cause of action and that the cited section has not changed the rule.

Plaintiff and her husband testified that at the time of the collision she was driving the car with the consent of her husband, the owner. This constituted the relationship of bailor and bailee. Nosse v. Rose, 45 Ohio App., 54, 186 N. E., 622; Eaton v. Schild (N. J.), 149 A., 637; Wolf v. Sulik, 93 Conn., 431, 106 A., 443, 4 A. L. R., 356. Upon the authority of those cases and 8 Corpus Juris Secundum, 375, she could maintain an action for damages to her husband’s automobile unless the section upon which counsel and the trial court relied abrogated this right.

Counsel have cited no Ohio cases in point nor have we found any upon original investigation. The defendant baking company, appellee herein, cites and relies upon Mielke v. Leeberson, supra. The syllabus of that case is:

“Under the plain and unambiguous language of Section 6290-4, General Code, a court cannot recognize the right, title, claim or interest of any person in or to any motor vehicle, without the production of a certificate of title or manufacturer’s or importer’s certificate duly issued in accordance with the Certificate of Title Law, and any other evidence of ownership is not of sufficient weight to sustain -a verdict or judgment where title must be proved as a condition precedent for the validity of such verdict or judgment.”

In the instant case the plaintiff was not required to establish title to the automobile to maintain her action as bailee. Title, admittedly, was in her husband, and she proved his title as the basis of establishing the relation of bailor and bailee. The interest of the plaintiff wars merely a possessory right. We hesitate to hold that before a bailee can assert any rights which have long been recognized, he must hold a certificate of title to an automobile, the subject of the bailment. Then, too, Section 6290-4, General Code, in addition to that part referred to in the syllabus of the Mielke case, continues:

“No court in any case at law or in equity shall recognize the right, title, claim, or interest of any person in or to any motor vehicle, hereafter sold or disposed of, or mortgaged or encumbered, unless evidenced by a certificate of title or manufacturer’s or importer’s certificate duly issued, in accordance with the provisions of this chapter.” (Italics supplied.)

The right of the plaintiff, if it is held to be an interest in the automobile of her husband, does not relate to'any transaction included in the subject matter underscored. Here, the plaintiff was asserting no right, title, or claim against the owner for the purposes of this action. She had the right to proceed even as the owner could have proceeded. In the Mielhe case, the the certificate-of-title owner of the car was asserting a claim against the defendant.

Quite recently the Court of Appeals for Summit county, in Douglas v. Hubbard, 91 Ohio App., 200, 107 N. E. (2d), 884, held that Section 6290-4, General Code, does not . preclude the establishment of a valid purchase money resulting trust, in which a motor vehicle constitutes the trust res. In that case, the trial court reversed a judgment which denied the right of the equitable owner to have legal title transferred to him from his trustee who held the certificate of title. The court concluded that it was not the intention of the Legislature when it enacted the Certificate of Title Law to remove from the law of trusts that species of personal property known as motor vehicles, so that under no circumstances could the legal title, as evidenced by a certificate of title, be in one person and the beneficial interest remain in another.

What of mechanics’ and other laborers’ liens on automobiles which they have enhanced in value by their services, and warehousemen’s liens for storage of automobiles when they have retained possession? Must they produce a certificate of title before they can assert such claims?

The syllabus in the Mielke case, at the end thereof, confines the application of the language of Section 6290-4, General Code, to actions “where title must be proved as a condition precedent for the validity of such verdict or judgment.” In the instant case, the only title that was involved was that of the owner, which became pertinent only to establish that the plaintiff, possessing the automobile by the authority of the owner, was a bailee. Section 6290-4, General Code, does not preclude the plaintiff from maintaining her second cause of action.

Assignment of error No. 4 is that the court erred in holding that plaintiff, as bailee, cannot maintain an action for damage to her husband’s automobile while in her possession. Our discussion of assignment No. 3 disposes of this question. We hold that Nosse v. Bose, supra, states the controlling law and we invite careful consideration of this opinion which is well considered and which cites and comments on many persuasive authorities.

The fifth error assigned is that the verdict is not sustained by any evidence and is contrary to law. We hold against the contention of the plaintiff on this assignment.

Assignment No. 6 is that the court erred in refusing to give plaintiff’s special instructions before argument Nos. 3 and 5. We have hereinbefore quoted these charges. No. 3 was properly refused because it assumed, as a matter of law, that plaintiff was proceeding in a westerly direction on Kossuth street and. in a lawful manner. Whether plaintiff was so proceeding was a factual question for the jury.

The court did not err to the prejudice of the plaintiff in refusing to give special instruction No. 5. The trial judge gave plaintiff’s request No. 4 which correctly and fully states the law on the subject matter of special charge No. 5, and the plaintiff has no cause for complaint in the refusal to give also her special charge No. 5.

Assignment of error No. 7 is that the court erred in that part of its general charge which we have heretofore quoted. Although the charge is not as complete or as definite as it could have been presented to the jury, we cannot hold that there was any error of commission in the language employed. It is contended by plaintiff that the court implied that she lost her preferential right of way when she moved beyond the center of Heyl avenue because of the jog in the intersection as Kossuth street crosses Heyl to the west. We do not so read the charge, although from the observation of the trial court in passing on the motion for new trial, it appears that he was of the opinion which appellant imputes to him respecting the loss of the right-of-way to plaintiff.

Upon this question of right-of-way, as it relates to the test whether plaintiff was proceeding in a lawful manner as she moved across the intersection and into Kossuth street west of Heyl avenue, we are cited to Gratziano v. Grady, 83 Ohio App., 265, 78 N. E. (2d), 767, a decision by this court. The syllabus of that case must be read in the light of facts appearing therein in an agreed statement of facts. Among other faets, this appears: ‘ ‘ * * * that the defendant entered said intersection, started to make a left-hand turn to go east on Spruce street; that said automobiles collided in said intersection.” It will be noted that it was stipulated that the defendant was making a left-hand turn.

As we read the general charge, no obligation was placed on plaintiff to signal her purpose to turn into Kossuth street to the west because she was changing her direction.

We have found that the trial court erred as set up in assignments of error Nos. 2, 3 and 4, but, upon the verdict as returned, we cannot say that the error was prejudicial to plaintiff.

The jury found for the defendant on plaintiff’s first cause of action. It is manifest that it would have returned no different verdict had the second cause of action been submitted.

The court did not err as to the eighth error assigned —that of overruling plaintiff’s motion for a new trial.

The judgment will be affirmed.

Judgment affirmed.

Wiseman and Miller, JJ., concur.


author: Matthews, P. J.

text:
    Shearer, Appellee, v. Eastern Motor Dispatch, Inc., Appellant.
    (No. 7731
    Decided May 25, 1953.)

      Mr. Ernest W. Stockmeier and Mr. William T. Sheffield, for appellee.

      Messrs. McIntosh, Moore & Katz, for appellant.
   Matthews, P. J.

The plaintiff asked for judgment for the amount of damage done to his automobile in a collision with the defendant’s truck. He alleged that the truck was being operated at the time by defendant’s agent and servant, and that the agent was negligent in that he backed the truck without giving any signal of his intention so to do and in so doing backed into and against the plaintiff’s automobile, causing damage to it. He alleged that the defendant’s agent was acting within the scope of his employment at the time.

The defendant answered admitting its corporate capacity and that ‘ ‘ there was a collision between a truck of defendant and a car of the plaintiff” at the time and place alleged by the plaintiff and then denied “each and every other allegation not hereinbefore specifically admitted to be true. ’ ’

At the trial the plaintiff introduced evidence of the damage to his automobile, that the operator of defendant’s truck was negligent, and that the collision was directly caused by such negligence. No evidence whatever was introduced tending to prove that the operator was acting within the scope of his employment or, indeed, that he was or had been employed by the defendant in any capacity.

At the close of plaintiff’s evidence the defendant moved for a ‘ ‘ directed verdict, ’ ’ which motion, as the case was being heard without a jury, was not apt to the occasion but did bring to the attention of the court that the evidence failed to present issues to be determined by the trier of the facts and was in substance a demurrer to the evidence. The court overruled this motion.

The defendant rested without introducing any evidence.

The trial court found for the plaintiff and entered judgment accordingly. This appeal is from that judgment.

The question presented is whether there is any evidence that the operator of defendant’s truck at the time and place of the collision was acting for and on defendant ’s behalf and within the scope of the authority conferred upon him by it. It is clear that there is no direct evidence or admission in the pleading to that effect. Is there any evidence or admission in the defendant’s answer from which a permissible inference can be drawn that the negligent person was acting for and on behalf of the defendant and within the scope of the authority conferred upon him?

It is not contended that there is anything in the evidence from which such an inference could be drawn. It is conceded that the case of White Oak Coal Co. v. Rivoux, Admx., 88 Ohio St., 18, 102 N. E., 302, 46 L. R. A. (N. S.), 1091, Ann. Cas., 1914C, 1082, precludes any such contention. It was held in that case, as stated in the first and second paragraphs of the syllabus:

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

‘ * 2. The facts that the automobile was owned by the defendant and that the same was negligently operated by an employee do not make a prima facie case of negligence against the owner, unless it appears that the employee was driving the automobile with authority, express or implied, of the owner.”

In that case, which has been followed many times (see Jackson v. Frederick, 152 Ohio St., 423, 427, 89 N. E. [2d], 645), it was held that mere proof that an automobile belonged to a person and that the operator was such person’s employee was no evidence that he was acting as such person’s agent in operating the vehicle at a certain time and place or that he was acting within the scope of his authority as such agent in what he was doing.

While conceding the force of White Oak Coal Co. v. Rivoux, supra, as a precedent, plaintiff’s counsel seek to distinguish that case on the facts. They say that in that case the only admission in the defendant’s answer was that it was a corporation, whereas in the case at bar the defendant by answer admitted that it owned the truck, and admitted the collision between it and the plaintiff’s automobile. There is that difference in the answers in the two cases. However, it is the fact, not the manner in which its existence is established, that determines its meaning and effect in the light of common experience. Whether the mere ownership of the truck has any tendency to prove that the operator was acting for and on behalf of the owner is not affected by the manner in which the ownership is established.

Plaintiff’s counsel rely on Ritchie v. McMullen, 159 U. S., 235, 40 L. Ed., 133, 16 S. Ct., 171, as holding that “if an answer expressly admits that ‘certain attorneys entered or undertook to enter the appearance of this defendant in said action’ without alleging that such attorneys were not authorized to enter defendant’s appearance ‘they will be taken to have been authorized by him to do so.’ ” An examination of that case discloses that the defendant not only made the foregoing admission, but also admitted that he had filed an answer in the case to which the answer alluded. However, we fail to see any analogy between a case construing affirmative allegations of an answer and the case at bar in which the question is as to the effect of an answer containing a direct denial of an affirmative allegation of the petition.

It seems to us that, giving full effect to the admissions in the answer and every permissible inference from the evidence, there is a complete failure of proof that the operator was acting within the scope of any authority conferred upon him by the defendant, but in fact there is a showing of a complete absence of any proof that the operator was the defendant’s agent for any purpose.

For these reasons and for the reason that the trial court erred in not rendering judgment for the defendant, we are of opinion that the judgment must be reversed. It, therefore, becomes our duty under Section 12223-38, General Code, to enter final judgment for the defendant. (See Greyhound Lines, Inc., v. Martin, 127 Ohio St., 499, 189 N. E., 244.) It is so ordered.

Judgment reversed.

Matthews, P. J., Ross and Hildebrant, JJ., concur.


author: Conn, J.

text:
    Zetzer; Appellee, v. Lundgard et al., Appellants.
    (No. 264
    Decided February 5, 1953.)

      Mr. U. G. Denman, for appellee.

      Messrs. True & Meyer, for appellants.
   Conn, J.

This appeal to this court is on questions of law and fact and is submitted on the pleadings, the original papers, a transcript of the docket and journal entries and, also, a transcript of the evidence offered by plaintiff, the exhibits, and the oral arguments and briefs of counsel.

An amendment to plaintiff’s second amended petition was filed in this court and defendants filed herein their amended answer, to which plaintiff filed a reply.

Plaintiff’s second amended petition is voluminous and somewhat repititions. In their amended answer, defendants allege that plaintiff does not have the legal capacity to sue, either as an individual or as a taxpayer, and that plaintiff has been guilty of laches. Defendants deny that Perry street between Monroe and Jackson streets was ever dedicated as a street. The amended answer of defendants contains further a series of specific admissions, affirmative averments and denials, and a general denial. What is admitted and what is denied is not clearly disclosed on the face of the pleading. The reply of plaintiff also contains specific denials, a general denial, and some affirmative allegations.

Section 11305, General Code, in mandatory form, provides that the facts constituting a cause of action shall be stated in “ordinary and concise language.” A similar provision is found in Section 11314, General Code, defining what the “answer shall contain,” and expressly providing that each material allegation in the petition shall be controverted by a general or special denial. New matter in the answer may be generally or specifically denied in the reply and new matter may be pleaded in “ordinary and concise language.” Section 11326, General Code.

An issue of fact arises when a material allegation in a pleading is denied, either generally or specifically. Section 11378, General Code. The issues raised by the pleadings in the instant ease are confused, and such confusion has materially added to the labors of counsel in the trial of this case. Furthermore, a laborious task has been imposed on the court to ferret out and adjudicate the issues that are presented by the record in this case.

The indiscriminate intermingling of new matter, general denials, and specific denials in a pleading with no apparent attention to the order in which they are set forth is confusing. Furthermore, such method of pleading does not appear to be authorized by the Code and is not approved.

On the evidence submitted, including the exhibits and the pleadings, as we interpret them, there appears to be no dispute on the material facts in this cause.

The record discloses that in the year 1828, one E. S. Haines subdivided a tract of land owned by him at the mouth of the Portage river and extending along the shore of Lake Erie, and located in what later became a part of Ottawa county. This subdivision was named Town Plat of Port Clinton. This plat was later received for record and recorded on August 17, 1831. It does not appear that this town plat was surveyed by the county surveyor as provided for in “An Act to Provide for the Recording of Town Plats” (29 Ohio Laws, 350), effective June 1, 1831, and which was in force at the time such plat was received for record. The plat describes and locates the streets, alleys, commons or public grounds and lots, numbered consecutively by the squares in which they are situated.

Among the streets shown on the plat is Perry street, extending westerly from Fulton street on the east to Canal street (now Harrison street) on the west. This street is 100 feet wide and is the first principal street south of the southern shore of the Portage river and Lake Erie. Attention will be called to this street later in this opinion, and also to Monroe street, which is a north and south street in the westerly part of Port Clinton and which intersects Perry street. This street is in two parts. North of Perry street it is 66 feet wide and south thereof is “upper market space,” 166 feet wide, extending south to Third street. The south part of Monroe street is 66 feet wide, and extends south from Third street. The next street west of Monroe street and parallel to it, which intersects Perry street, is Jackson, street, and the next street west therefrom is designated on the plat as Canal street. Canal street runs north and south on the west boundary of the town.

Section 8 of the act above referred to (29 Ohio Laws, 350, 351), provides:

“That the plat or map, when recorded, as required by this act, shall be deemed and considered in law, a sufficient conveyance to vest the fee simple of all such parcel or parcels of land as are therein expressed, named or intended for public use, in the county in which the town is situated, for the uses and purposes therein named, expressed or intended, and for no other use or purpose whatever.”

Upon this review of the steps taken by the owner of the land to lay out the “Town Plat of Port Clinton,” including the subdivision of the land into lots, with streets (including Perry street), alleys, public grounds as shown on the plat, all in substantial compliance with the statute making provision for same; the subsequent recording of town plats; and the facts that subsequently the lots shown on the plat have been sold and conveyances made, and streets improved so that today a beautiful city has been built upon the plan so made, there clearly appears a complete answer to the claim of defendants that Perry street was not originally dedicated in its entirety to public use. It can not be inferred from the record that the physical characteristics of the land as to that part of Perry street in question could not at any, time have been improved for general street purposes. It was at all times within the sound discretion of the council to determine whether or not such improvement should be made.

Even if on the record no statutory dedication is shown, a valid dedication would result under the common law, as the intention of the owner to make such dedication clearly appears, as well as the acceptance of the dedication by the community and the establishments of the village on the land as dedicated. Village of Hicksville v. Lantz, 153 Ohio St., 421, 92 N. E. (2d), 270; Scott v. Snyder, 73 Ohio App., 424, 54 N. E. (2d), 157; 13 Ohio Jurisprudence, 738, Section 17.

It was stipulated by the parties that on May 13,1853, the council of the village of Port Clinton, by ordinance, granted an easement of way to the Port Clinton Railroad Company for the location and construction of its railroad through and across any public street, alley, etc. in the village, and that such railroad was the first predecessor of the New York Central Railroad Company. The record discloses that the easement granted for railroad purposes was 66 feet wide, extending across Perry street in a northwesterly and southeasterly direction, between upper market space (hereinafter referred to as Monroe street) on the east and Jackson street on the west. It was stipulated also that neither the New York Central Railroad Company nor any of its predecessors had an interest of any kind in any part of Perry street prior to August 17, 1831.

The record shows that Perry street between Monroe and Jackson streets was never improved or opened to public travel; that there is some conflict in the evidence as to the physical character of Perry street at this point, but it appears that this part of the street was low and wet; that west of the railroad right-of-way the street was marsh and water; that the railroad company made an extensive fill on its right of way; and that the remainder of Perry street west from the east line of Jackson street to Canal street and that 'portion from the west line of Monroe street east to Pulton street has been improved for general street purposes.

It is disclosed further that in 1883 the council of Port Clinton, upon petition, passed an ordinance vacating that part of Perry street lying between the west line of Monroe street (extended to the south line of Perry street) on the east and the east line of the right of way of The Lake Shore & Michigan Southern Railroad; that, thereupon, a warehouse was constructed on a portion of that part of said street so vacated ; that subsequently, in the year 1930, the defendant John Lundgard brought an action in the Court of Common Pleas of Ottawa County (cause No. 8712) against the village of Port Clinton to quiet the title to that part of Perry street which was vacated by ordinance in 1883; that the court, in construing the ordinance of 1883, adjudged that it was the intention of the village council to vacate that portion oof Perry street as above described; and that plaintiff had obtained title by adverse possession to that part of Perry street which had been vacated, excepting such portion as lies east of the east line of plaintiff’s warehouse.

The record discloses further that the council of Port Clinton in the year 1931 determined that in order to make desired improvements to Monroe street it was necessary to move the warehouse of defendant westerly and relocate it on a new foundation west of the west line of west market space. The mayor and clerk were authorized by council to receive bids and enter into a contract with the lowest bidder for the moving of the building, pursuant to an agreement with said defendant so to do, without cost and expense to such defendant, and said warehouse was moved accordingly. Defendants have made further improvements on the vacated portion of Perry- street.

It is disclosed further by the pleadings and the evidence that on March 22, 1932, the council of Port Clinton passed ordinance No. 188, vacating that part of Perry street from the west line of Monroe street to the west line of the New York Central Railroad Company’s right of way. It is apparent that this ordinance included that part of Perry street vacated by ordinance of 1883, above referred to. The-property to be vacated as described in the published notice was limited to that part of Perry street formerly occupied by the railroad as a right of way. It is difficult to see how this discrepancy could be prejudicial.

This action was brought by plaintiff as a taxpayer on behalf of the village (now city) of Port Clinton, himself and other taxpayers. Defendants challenge the capacity of plaintiff to sue and maintain the action. It appears to be well settled in Ohio that a nonabutting property owner can not maintain an action for damages that grew out of the obstruction or vacation of a street or highway, unless the injury sustained is different in kind, and not merely in degree, from that sustained by the community in general. New York, Chicago & St. Louis Rd. Co. v. Bucsi, 128 Ohio St., 134, 190 N. E., 562, 93 A. L. R., 632; Worthington v. City of Akron, 18 C. C. (N. S.), 208, 32 C. D., 695; Fischer, a Taxpayer, v. City of Cleveland, 42 Ohio App., 75, 83, 181 N. E., 668; Paysen v. New York Central Rd. Co., 53 Ohio App., 154, 4 N. E. (2d), 596; 28 Ohio Jurisprudence, 539, Section 339.

In this action, plaintiff prays for equitable relief by way of a judgment setting aside the proceedings of council upon a finding same were null and void, that no part of Perry street had been vacated, and that defendants be ordered to remove their buildings therefrom. The right to the relief prayed for is grounded on certain alleged illegal acts of council which it is claimed operated as constructive fraud and now fraudulently affect the city of Port Clinton and its citizens. The issues' thus raised are readily differentiated from those raised in actions by nonabutting property owners for damages claimed to have been sustained upon the vacation or obstruction of a street.

Actions for injunction to enjoin the attempted vacation of streets are also distinguishable. Such actions are not maintainable where it appears that plaintiff has reasonable access to his property by other streets or where he has not suffered damages differing in kind from the general public. Kinnear Mfg. Co. v. Beatty, 65 Ohio St., 264, 62 N. E., 341, 87 Am. St. Rep., 600; Bulen v. Moody, 77 Ohio App., 61, 63 N. E. (2d), 916.

In view of the fact that plaintiff’s action rests on alleged illegal acts of council, which are alleged to have been constructively fraudulent on the village and citizens generally, we have reached the conclusion that plaintiff, as a taxpayer, has the capacity to bring this action.

We now come to the crucial and decisive issue raised on the pleadings. This issue may be stated briefly as follows: Were the acts and things done by the council of the village of Port Clinton since its incorporation, in relation to that part of Perry street under consideration, within the lawful exercise of its power and authority? It is a general rule that the procedure for the vacation or alteration of a street, to be effective, must be in substantial compliance with the statute prescribing such procedure. 175 A. L. R., 762.

However, plaintiff has not claimed in this court that the several acts of council were void by reason of noncompliance with the statute, but does claim that the action taken was wholly without legal authority and, therefore, void and constructively fraudulent. This claim is grounded on the proposition that the Plat of the Town of Port Clinton was laid out by the owner of the land “just out in the country,” and not as an addition to a municipality; and that the streets, alleys and areas “intended for public use” were dedicated pursuant to the statute (29 Ohio Laws, 350, 351), and particularly with section 8 thereof, “for the uses and purposes therein named, expressed or intended, and for no other use or purpose whatsoever.”

On this premise it is urged by plaintiff with much emphasis that the several acts of council from the time of the incorporation of the village in 1852 to and including the contract with defendant, John Lundgard, the objective of which was the relocation of defendant’s warehouse in order to make certain improvements in Monroe street, were a nullity and without legal force or effect; that, as a necessary conclusion, the actions taken by council can not defeat the right of taxpayers at this time; and that, as to them, the judgment in the quiet title action (No. 8712) is not res judicata. These several contentions may have the apparent virtue of logic, but we have concluded that they are not grounded on an acceptable premise.

The briefs of counsel cover a wide range and contain numerous citations. As this opinion has already exceeded the objective of brevity and conciseness, we cannot undertake to analyze all the cases relied on by plaintiff.

Attention is first called to the act providing for the organization of cities and villages, enacted May 3, 1852 (50 Ohio Laws, 223, Swan & Critchfield, 1493), and amended by an act enacted March 11,1853 (51 Ohio Laws, 360, 366, Swan & Critchfield, 1530), and particularly to the language of section 13 of the amending act, conferring authority on council in the matter of vacating streets:

“ * # * Upon hearing and being satisfied that there is good cause for such vacation * * * and [that] it will not be detrimental to the general interests, and that the same should be made, declare such street or streets * * * vacated * • *.”

The original enactment has been amended through the years, but in each of the amendments, revisions, and codifications, the discretionary power originally conferred on council has been retained and is now found substantially in the present statute. Section 3725, G-eneral Code.

Plaintiff relies on the case of Louisville & Nashville Rd. Co. v. City of Cincinnati, 76 Ohio St., 481, 81 N. E., 983. In that case the court reviewed an ordinance of the city of Cincinnati which attempted to grant to the railroad the right to construct an elévated railroad over and across certain streets and land “set apart as a common for the use and benefit of the town forever, ’ ’ lying between Front street and the Ohio river. This dedication was made by the owners of the tract in 1789. The ordinance was declared invalid on the ground that the Legislature could not “authorize a municipality to grant to a railroad company the right to occupy a public common or landing with an elevated railroad. ’ It is apparent that' the primary issue considered by the court related to the legality of the grant to the railroad company to occupy the public common or landing. This fact stands out in the closing language of Judge Summers ’ opinion, which we quote:

“It does appear, and that without the need of any testimony of expert witnesses, or any finding of facts, that this elevated railroad was to be constructed over the entire length of the landing, not for the purpose of facilitating the use of the landing for the purpose for which it had been dedicated, but for the use of the railroad company. The occupancy of this part of the land in the manner proposed would be in effect an appropriation of it by the railroad company, and the grant is inconsistent with and a diversion from the use for which the land was dedicated. ’ ’

Under the rule established by the Supreme Court nearly 100 years ago, the syllabus of the points decided must be construed and applied in the light of the facts of that particular case. See 11 Ohio Jurisprudence, 798, Section 145; McGilvery y. Shadel, 87 Ohio App., 345, 351, 95 N. E. (2d), 1, and cases cited.

When Louisville & Nashville Rd. Co. v. Cincinnati, supra, is ‘ ‘ shepardized, ” the number of citations is impressive. Many of those cases are cited by plaintiff, which he contends have followed Louisville & Nashville Rd. Co. v. Cincinnati. There is language found in several of the opinions in the cases cited that lend some encouragement to plaintiff. However, from our examination of the cases relied on, it appears that they cover a wide and diversified range of facts and that in none of them has the court applied the law of that case to a factual situation substantially like the ease presented on the record before us. It is for this reason that the cases relied on do not come within the doctrine of stare decisis and do not govern the disposition of the issues in the instant case. Furthermore, plaintiff has failed to show that the proceedings of council were illegal or fraudulent.

It should be noted that the facts embraced in this controversy cover a period of time exceeding 100 years. The acts and things done by the council were not put under a bushel basket, but were performed in the open and are evidenced by public records. Consistent with the concluding thought expressed in the opinion of Judge Matthias in the case of State, ex rel. Crabbe, Atty. Genl., v. Sandusky, Mansfield & Newark Rd. Co., 111 Ohio St., 512, 526, 146 N. E., 58, the situation now presented should not be disturbed.

Plaintiff seeks an equitable remedy. His claims are subject to the affirmative defenses of laches and estoppel and the further equitable right of compensation to the defendants as a condition precedent to a mandatory order being entered depriving them of their property.

It would serve no good purpose to extend further the basis upon which our opinion rests. Our conclusion is that there should be a finding and judgment for defendants.

Judgment for defendants.

Fess and Savord, JJ., concur.