author: Hornback, J.

text:
    Dayton Fabricated Steel Co., Appellee, v. Dayton Town & Country, Inc., Appellant.
    (No. 2276
    Decided April 16, 1954.)

      Messrs. Matthews & Altick, for appellee.

      Messrs. Marshall & Smith, for appellant.
   Hornback, J.

This is an appeal on questions of law from a declaratory judgment in favor of the plaintiff. The controversy upon which the action was predicated arose by reason of a difference of opinion of the parties as to the obligation of the defendant under a written contract, particularly under article 8 thereof.

The facts essential to an appreciation of the legal questions presented for determination are not in dispute, and they appear from the pleadings and a stipulation of the parties.

Defendant, as owner, and plaintiff, as contractor, entered into a written agreement whereby the contractor was obligated to furnish and pay for all equipment and all labor necessary to complete the following work, namely:

“Unload the fabricated structural steel furnished by others, at your job, haul same to the job site, and erect with field bolt connections the structural steel, complete in all respects, for this project No. 3 Dayton Town & Country, Inc. * * *
“We will set the bearing plates for beams and do the grouting necessary between column plates and piers.”

The contract described by metes and bounds the land involved in the improvement known as Project No. 3.

Article 8 of the contract provided:

“The contractor hereby agrees to save and indemnify and keep harmless the owner against all liability, claims, judgments or demands for damages arising from accidents to persons or property occasioned by the contractor, his agents or employees, and against all claims or demands for damages arising from accidents to the contractor, his agents or employees, whether occasioned by said contractor or his employees or by the owner or his employees or any other person or persons; and the said contractor will defend any and all suits that máy. be brought against the owner on account of any such accidents and will make good to, and reimburse, the owner for any expenditures that said owner may make by reason of such accidents. ’ ’

The contractor entered upon the work which it was obligated to perform under the contract at the project mentioned and described in the early paragraphs of the contract. In the employ of the plaintiff and working on the project covered by the contract was a Max Cranford. Under the contract plaintiff was obligated to erect certain structural steel framework of the building to be erected. The steel framework was to be attached to a concrete foundation. The concrete foundation was laid by defendant, who also inserted bolts therein, to which were to be attached the upright steel columns. The concrete foundation with the bolts inserted had been completed when the plaintiff entered on its work.

On April 16, 1951, Cranford and other employees of the plaintiff had raised what was known as a steel “H” column, which was seated over and aligned on the metal bolts in the cement footer, and nuts were threaded on the bolts to the base plate. The column was standing when the employees of the plaintiff quit work on the afternoon of April 16. The next day, soon after Cranford had reported for work, he was struck and injured by the steel “H” column. There is controversy between the parties as to the cause of Cranford’s injury, whether by reason of negligence or improper workmanship of defendant in placing the bolts in the concrete foundation, or by the negligence of an employee of plaintiff in operating a crane loaded with structural steel.

Cranford applied for and was granted an award under the Workmen’s Compensation Act. Later he instituted an action in the Common Pleas Court of Franklin County, in which defendant was a party defendant, seeking damages for acts of the defendant which he claimed were negligent and which directly and proximately caused his injuries. Four specifications of negligence were asserted, which were directed to the failure of the defendant to provide anchor bolts of sufficient length or to insert them to sufficient depth; to insert anchor plates in the concrete foundation and attach bolts to the plates; and in failing to warn plaintiff of the manner in which the bolts were installed in the concrete foundation. Succeeding the institution of this action, the defendant claims that it orally demanded of plaintiff that it defend Cranford’s action. This is denied, but later defendant, in writing, requested plaintiff to so defend. This is admitted.

The appellee denying any obligation to defend the action of Cranford or to respond to any claim for damages that might arise by reason thereof or costs incident thereto and defendant asserting plaintiff’s obligation under the contract to meet all these claims, the declaratory judgment action was instituted.

The trial judge held with the plaintiff in all particulars and supported its position largely upon the contentions made here by plaintiff. Succinctly, the grounds for the judgment below are that the negligence complained of in the Cranford action did not arise by reason of work to be performed by the plaintiff under its contract with Dayton Town & Country, Inc.; that the indemnity clause in the contract does not apply to work performed by defendant in its construction project; that this plaintiff did not by its contract with defendant agree to perform for the defendant; and that the plaintiff was not obligated in any manner whatever to defend the Cranford suit or to pay any damages that might be awarded therein or costs arising therefrom.

The contention of plaintiff is that the contract is not specific as to the coverage of the liability of plaintiff and was not restricted to the location where Cranford was injured. Whether the contract could be held to have application over and beyond the location where the work of plaintiff was being carried on is not involved. It clearly appears that Cranford was injured while in the employ of the plaintiff while working on Project No. 3, which is specifically covered by the contract.

It is urged that the indemnity clause protects the defendant from the results of his own negligence and, therefore, calls for careful scrutiny. With this contention we are in agreement. Plaintiff contends that the contract is ambiguous because it does not disclose that it is connected with the subject matter of the contract, and is too broad to be particularized. The defendant claims that the contract is clear and concise and permits of no construction other than the obligation for which it contends. We are in agreement with the claims of the defendant. The contract clearly covers the work which the plaintiff was to perform for the owner, the defendant. The place where the work was to be performed was definitely fixed. Cranford, an employee of the plaintiff, was injured while at work on the project covered by the contract. Whether his injuries were caused by the negligence of plaintiff’s employees or defendant’s employees is in controversy.

It would be difficult to frame language more inclusive than found in article 8 of the contract fixing the obligation of plaintiff respecting the subject matter of Cranford’s action in Franklin County. It is charged, and it may eventuate, that Cranford’s injuries were caused by the negligence of defendant’s employees, but the contract made no such requirement as a prerequisite to plaintiff’s liability. It provides that the contractor shall indemnify the owner against all liability, claims, or judgments for damages arising from accidents to the contractor or his employees, whether occasioned (caused) by said contractor or his employees or by the owner or his employees; and the contractor will defend any and all suits that may be brought against the owner on account of any such accidents and will make good to, and reimburse the owner for, any expenditures that the owner may make by reason of such accidents.

The cases cited by defendant hold that contracts indemnifying the indemnitee against claims or damages arising out of the negligence of his own employees are enforceable and not against public policy, although to be strictly construed. Kay v. Pennsylvania Rd. Co., 156 Ohio St., 503, 103 N. E. (2d), 751; Farmers Natl. Rank v. Ins. Co., 83 Ohio St., 309, 94 N. E., 834; Bellish v. C. I. T. Corp., 142 Ohio St., 36, 50 N. E. (2d), 147; George H. Dingledy Lumber Co. v. Erie Rd. Co., 102 Ohio St., 236, 131 N. E., 723.

It is desirable when an owner contracts with one who is to perform services and furnish labor for him, that such contractor shall indemnify the owner without qualification against damages and resultant expenses for injuries suffered by workmen by reason of accidents occurring on the job. Such unqualified indemnification precludes all questions such as have arisen here; namely, the cause of the injuries, whether by reason of the negligence of the owner, his employees, the contractor or his employees, or without the fault of either. In the Cranford suit, defendant contends and pleads that it is not liable. That is the issue which can not be determined until the cause proceeds to judgment. If defendant maintains its claim, there is no offense against public policy by plaintiff agreeing, to defend the suit, and clearly it should do so. The defendant under the contract is not obliged to wait until the Cranford suit has been resolved. The contract comprehends the performance by.the contractor (plaintiff) of all its obligations, namely, to defend the action of Cranford, and to pay all damages which might eventually be assessed against the defendant and costs arising by reason of the action.

The judgment of the trial court is reversed, judgment entered in favor of the defendant in conformity with this opinion, and the cause remanded.

Judgment reversed.

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


source: Caselaw Access Project

author: Griffith, J.

license: Public Domain

text:
    The State, ex rel. Johns, v. Bruss, Dir.

      (No. 1318
    Decided March 16, 1955.)

      Mr. Russell G. Mock, for relator.

      Mr. W. Leo Keating, city solicitor, for respondent.
   Griffith, J.

Relator, a sergeant on the police force of the city of Warren, on June 4,1954, filed a petition in mandamus in this court praying that the Director of Public Safety and Service be compelled to appoint him to the rank of captain of the Police Department of the City of Warren, in accordance with Section 143.34, Revised Code.

The issues were joined by answer. Depositions of various witnesses were taken on behalf of respondent and relator. The controlling facts of this case are:

On May 5, 1953, ordinance No. 4392 was in force requiring three police captains. There was a vacancy thereafter existing in the rank of captain. The director of safety requested the civil service commission to hold a promotional examination. On October 29, 1953, an examination was held. On November 19, 1953, the relator, having received the highest grade, was certified to the director for promotion to the rank of captain. On December 16, 1953, ordinance No. 4511 was passed, section 5 of which ordinance reads:

“For the reason that it is necessary to pass this ordinance immediately and for the preservation of the public peace, health and safety this ordinance is hereby declared to be an emergency measure and shall take effect not earlier than January 1,1954.”

This ordinance re-established two captaincies, both of which positions were then filled. The director failed to appoint relator within thirty days from the date of such certification. The thirty-day period terminated at midnight on December 19, 1953.

If ordinance No. 4511, passed on December 16, 1953, was a legally adopted emergency ordinance then the respondent must prevail because he had until midnight of December 19, 1953, to make the appointment and, by the provisions of this ordinance, no vacancy existed on the 19th, 18th, or 17th of December, 1953.

So the question immediately arises, was the prescribed procedure for the enactment of this ordinance as an emergency measure followed?

This was not an emergency enactment for two reasons. First, it was passed on December 16, 1953, and by its very terms it “shall take effect not earlier than. January 1, 1954.” Section 731.30, Revised Code, provides that emergency ordinances shall go into immediate effect.

The provision embodied in the ordinance which represents the intent of the members of council is incompatible with the effective date of an emergency ordinance. Not taking effect immediately, it could not be an emergency ordinance even though it stated in the ordinance, “for the reason that it is necessary to pass this ordinance immediately and for the preservation of the public peace, health and safety this ordinance is hereby declared to be an emergency measure. ’ ’

Second, Section 731.30, Revised Code, provides that emergency ordinances must state the reasons for such necessity in one section of the ordinance.

The Supreme Court in the case of City of Youngstown v. Aiello, 156 Ohio St., 32,100 N. E. (2d), 62, stated on page 36:

“This court has heretofore specifically held that where a legislative measure, passed either by the General Assembly of the state or by the council of a municipality, is declared to be an emergency measure necessary for the preservation of the public peace, health or safety and sets forth the reasons for the immediate necessity thereof, such determination is not reviewable by the courts, the duty and responsibility of such determination having been confided to the legislative branch of the government. State, ex rel. Durbin, v. Smith, Secy, of State, 102 Ohio St., 591, 133 N. E., 457; Holcomb, Aud., v. State, ex rel. Coxey, 126 Ohio St., 496, 186 N. E., 99; State, ex rel. Schorr, v. Kennedy, Secy. of State, 132 Ohio St., 510, 9 N. E. (2d), 278, 110 A. L. R., 1428; and State, ex rel. City of Fostoria, v. King, 154 Ohio St., 213, 94 N. E. (2d), 697.

“However, it is essential to the validity of such measures as emergency measures that the mandatory requirements specified be adhered to and followed, among which is that ‘the reasons for such necessity shall be set forth in one section of the ordinance or other measure. ’ Although the finding of the emergency character of the proposed legislation and the determination of the legislative body as to the necessity that such legislation go into immediate effect and the reasons announced therefor are not subject to review by the courts, it is mandatory that the legislative body must consider, determine and announce the reasons for such necessity and that the same be set forth in one section of the ordinance or other measure.

“In the respect indicated, the requirement of the statute essential to the enactment of this ordinance as an emergency measure, permitting it to go into immediate effect, was not followed. It, therefore, lacked validity as an emergency enactment.”

This court, on June 4, 1937, passed upon this very question in the case of Goodman v. City of Youngstown, 24 Ohio Law Abs., 696, wherein, on page 702, Nichols, J., in his opinion, stated:

“It is not questioned that the ordinance received the vote of two-thirds of all the members elected to the council upon a yea and nay vote. The ordinance states the conclusion that it is necessary for the preservation of the public peace, health and safety, but the ordinance does not state that it is necessary for the ‘immediate’ preservation of the public peace, health or safety in such municipal corporation. However, it may be assumed that the immediate necessity therefor may be implied from the provision that the ordinance is declared to be an emergency measure and that it shall take effect upon its passage and approval of the mayor. But we do not find any separate section of the ordinance which states the reasons for such necessity. The language of the statutes specifically requires that the reasons for such necessity shall be set forth in one section of the ordinance. The mere statement that the ordinance is necessary for the preservation of the public peace, health and safety is but a conclusion of the council, without the statement of any reason therefor.”

Since the provision of the ordinance postponed its effective date until January 1, 1954, and since it did not set forth in one section thereof the reasons for the necessity, it follows that it lacked validity as an emergency enactment. Was it a regular ordinance? The question is concisely answered by Judge Matthias on page 37 in the case of City of Youngstown v. Aiello, supra, wherein he said:

“It is to be observed, however, that such ordinance was enacted March 7, 1928, and that there was no challenge of its validity as an emergency measure by a referendum proceeding or otherwise. Except in the respect essential to its going into effect as an emergency ordinance it was validly enacted. The city’s charter requires that all ordinances of the city shall be published. In the absence of any evidence to the contrary it is proper to assume that such provision was complied with and that the ordinance was duly published and in due time became effective as a valid ordinance of the city of Youngstown.”

We hold that this was a valid ordinance effective 30 days after its filing with the mayor. Section 731.29, Revised Code.

There was a vacancy from May 3,1953, to January 16,1954, the date of the effectiveness of the repealing ordinance. There was a specific and positive duty imposed by law upon the director to appoint the relator within thirty days from November 19, 1953, the date of his certification, and there has been a plain breach of duty on his part in failing to do so.

This court will not entertain- jurisdiction to determine an empty or technical right, or a moot question unattended by any substantial benefit to the relator. The case before us is not moot for the reason that if the writ is allowed it would mean a financial benefit to the relator and would establish the relator’s status in the police department.

This court will take into consideration the facts and conditions existing at the time it determines whether to issue a peremptory writ. State, ex rel. Apple, v. Pence, et al., Board of Education of Shelby County School District, 137 Ohio St., 569, 31 N. E. (2d), 841.

Nothing has occurred since December 19, 1953, which renders it impossible for this court to grant this relator effectual relief in the way of declaring his status and in determining the question of whether he is entitled to the emoluments of the office of captaincy from December 19, 1953, to January 16, 1954.

The writ will issue to the respondent to cause him to appoint the relator to the rank of captain of the Police Department of the City of Warren, as of December 19, 1953, the term of the captaincy to continue until January 16, 1954, the effective date of ordinance No. 4511, and for all the emoluments of such office for that period of time.

Writ allowed.

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


author: Fess, P. J.

text:
    The Walter C. Pressing Co., Appellee, v. Hogan, Appellant; et al., Appellee.
    (No. 652
    Decided April 19, 1954.)

      Messrs. Freeman & Freeman, for appellee The Walter C. Pressing Company.

      Messrs. Young & Young, for appellee Harriet Lawton. Messrs. Flynn, Py & Kruse and Mr. F. J. Stauffer, for appellant.
   Fess, P. J.

This is an appeal on questions of law and fact from a judgment entered by the Common Pleas Court on behalf of the plaintiff, appellee herein. On May 1, 1943, defendant Harriet Lawton, as lessor, entered into a lease with defendant Gertrude Hogan, as lessee, for a certain room in a building owned by defendant Lawton for the term of one year commencing May 1, 1943, and ending April 30, 1944, at a rent of $35 per month. The lease provided that the lessee should have the privilege of renewing it at any time before the expiration thereof for an additional term of two years upon the same terms and conditions; and the further privilege of renewing the lease before the expiration of such additional term for a second term of two years, with the option to the lessor to require the payment of $50 per month. This lease was duly executed as required by Section 8510, General Code, and was recorded. Under date of April 19, 1944, defendant Hogan in writing renewed the lease for the period from May 1, 1944, to April 30, 1946. Under date of April 27, 1945, defendant Hogan again notified defendant Lawton that she was renewing the lease and enclosed a check in the sum of $50 to cover the first month’s rent. Although, pursuant to the terms of her lease, the lessee was not required to pay more than $35 per month until after the second renewal, she testified that she voluntarily paid such rental of $50 per month thereafter.

On March 1, 1946, the lessee again notified the lessor that she was renewing her lease of the premises as provided in the lease dated May 1,1943. A few days later, under date of March 7, 1946, the lessor and lessee signed a so-called renewal lease agreement prepared by the lessee reciting that the parties agreed to the renewal of the lease dated May 1, 1943, “said renewal shall be for a period of five years from the expiration date of the present lease and at a rental of $50 per month payable monthly in advance.” This renewal lease agreement was not executed in accordance with the provisions of Section 8510, General Code, nor was it recorded.

On March 12, 1951, the defendant Lawton entered into a lease with the plaintiff for the same premises for a period of three years from May 1, 1951 to April 30, 1954, at a rental of $100 per month.

Plaintiff brings its action for the purpose of obtaining a declaration of the rights, status and other legal relations of and between itself and the defendants Hogan and Lawton arising out of the lease of May 1, 1943, the so-called renewal lease agreement of March 7, 1946, and the lease of March 12, 1951, and prays for a declaratory judgment that plaintiff is the valid lessee of the premises, that the lease of defendant Hogan has expired, and that the defendant Hogan has been a tenant under the plaintiff since May 1, 1951.

Defendant Hogan contends that the phrase in the renewal lease agreement — “five years from the expiration date of the present lease” — means five years from April 30, 1948, and she testified that it was the intention of the parties to the renewal lease agreement that such was the intention of the parties to the renewal lease agreement at the time it was made. She testified further that in reliance upon the five-year term, she expended in excess of $1,500 on the premises. Although the plaintiff had been a subtenant of defendant Hogan and had notice of the renewal lease agreement, it was advised by defendant Lawton that defendant Hogan was unwilling to pay the additional rent which defendant Lawton desired incident to a further renewal of the lease.

In Corvington v. Heppert, 156 Ohio St., 411, 103 N. E. (2d), 558, it is held that in a lease of real property for a definite length of time with an option of “renewal” by the lessee for a further term on the same basis, which lease contains no definition and explanation of the word “renewal,” such word is generally to be treated as the equivalent of “extension” and operates, upon exercise of the option, to continue the original lease for the period provided therein, so that a new lease for the additional term is not necessary.

In the second paragraph of the syllabus, the court holds further that a lease for a specified number of years, coupled with an option to extend or renew it for an additional period, gives the lease effect as an original present demise' for the full term for which it might be made inclusive, contingent on the election to extend or renew.

But in the instant case the renewal lease agreement was a separate instrument, purporting to demise the premises for an additional period of five years. Such unacknowledged instrument is not in accordance with the requirements of Section 8510 and the provisions of Section 8517, General Code. Cf. Crawford & Murray v. Wick, 18 Ohio St., 190, 98 Am. Dec., 103; Gladwell v. Holcomb, 60 Ohio St., 427, 54 N. E., 473, 71 Am. St. Rep., 724.

In her answer, defendant Hogan sets forth, inter alia, that upon obtaining the renewal lease agreement, she expended the sum of $1,800 in improving the premises, which allegation, to the extent of $1,500, she has supported by evidence, and she prays that the court enter a declaratory judgment finding the lease from defendant Lawton to be in full legal force and effect until April 30, 1953, and for such other and further relief as may be equitable.

The question for determination upon this appeal is whether defendant Hogan’s retention of possession, continued payment of the rent and expenditure of some $1,500 in reliance upon the renewal lease agreement, entitled her upon equitable principles to possession for the full term of the renewal lease agreement, as she contends it should be construed.

In actions at law, entry and payment of rent under a defectively executed lease creates a tenancy from year to year, or from month to month, upon the terms of such lease, except as to duration.

Baltimore £ Ohio Rd. Co. v. West, 57 Ohio St., 161, 49 N. E., 344; Cladwell v. Holcomb, supra; Toussaint Shooting Club v. Schwartz, 84 Ohio St., 440, 95 N. E., 1158; Lithograph Bldg. Co. v. Watt, 96 Ohio St., 74, 117 N. E., 25; Wineburgh v. Toledo Corp., 125 Ohio St., 219, 181 N. E., 20, 82 A. L. R., 1315; People’s Bldg., Loan & Savings Co. v. McIntire, 14 Ohio App., 28.

The Supreme Court recognizes, however, that a different principle is applicable in equity. Richardson v. Bates, 8 Ohio St., 257, at page 264; Lithograph Bldg. Co. v. Watt, supra; People’s Bldg., Loan & Savings Co. v. McIntire, supra, at page 32. At law, part performance removes the lease from the operation of the statute of frauds to the extent that occupancy under a defective lease creates a tenancy not for the entire term, but from year to year or month to month, depending upon the terms of the instrument. Entry under a void lease, as in the case of holding over after the expiration of a valid lease, is equivalent to a new entry. Baltimore & Ohio Rd. Co. v. West, supra.

Tn equity, however, a lessee in possession and paying rent under a defectively executed lease is entitled to hold possession for the full term of the lease. Parsons v. Weinstein, Trustee, 19 Ohio App., 521; Grundstein v. Suburban Motor Freight, Inc., 92 Ohio App., 181, 107 N. E. (2d), 366. Such holding in effect nullifies the plain provisions of Sections 8510 and 8517, General Code, because if recovery may be had upon a defective lease, the statute becomes wholly ineffective in accomplishing its purpose. Cf. Wineburgh v. Toledo Corp., supra, at page 223. But there is a well-established principle that in equity part performance will remove a transaction under a defective instrument from the operation of the statute of frauds.

Williams v. Pope, Wright, 406; Wilber v. Paine, 1 Ohio, 251; Waggoner v. Speck, 3 Ohio, 293; Grant v. Ramsey, 7 Ohio St., 158; Myers v. Croswell, 45 Ohio St., 543, 15 N. E., 866; France v. McKenzie, 20 C. C., 209, 11 C. D., 245; O’Brien v. Myer, 8 Dec. Rep., 777, 9 W. L. B., 337; La Bounty v. Brumback, 126 Ohio St., 96, 184 N. E., 5; Hodges v. Ettinger, 127 Ohio St., 460, 189 N. E., 113; Kemp v. Feldman, 84 Ohio App., 154, 81 N. E. (2d), 319; 19 Ohio Jurisprudence, 614, 627, Section 90 et seq.

Defendant Hogan does not in terms seek reformation of the lease but prays for a judgment declaring her lease to be in full effect until April 30, 1953, and generally for other and further relief in equity. Reformation is not a prerequisite to granting equitable relief. Globe Ins. Co. v. Boyle, 21 Ohio St., 119, 130; Grundstein v. Suburban Motor Freight, Inc., supra.

It is, therefore, concluded upon authority of Parsons v. Weinstein, supra, and Grundstein v. Suburban Motor Freight, Inc., supra, that defendant Hogan, having retained possession, . paid the rent and made the improvements, is entitled, in equity, to occupy the premises for the full term provided in the renewal lease agreement. We find also that defendant has established by a preponderance of the evidence that the phrase “for a period of five years from the expiration date of the present lease” was intended to mean from April 30, 1948. Defendant Hogan is, therefore, entitled to judgment declaring that she was entitled to occupy the premises in question until April 30, 1953, upon payment of the rent of $50 per month.

It is adjudged further that plaintiff shall pay to defendant Hogan rent for that portion of the premises occupied by plaintiff at the rate of $75 per month from May 1, 1951, to April 30, 1953; and that the defendant Hogan shall pay to defendant Lawton rent at the rate of $50 per month from May 1, 1951, to April 30, 1953.

It is adjudged further that, upon request of defendant Lawton, defendant Hogan shall reconvert the premises into a single room at defendant Hogan’s expense; and that the defendant Hogan shall have the privilege of removing from the premises such of her personal property as can be removed without damage to the realty.

Judgment accordingly.

Conn and Deeds, JJ., concur.


author: Collier, J.

text:
    Snyder, Appellant, v. Village of McArthur, Appellee.

      (No. 300
    Decided May 2, 1955.)

      Mr. Craig Carnes and Mr. E. C. Molter, for appellant.
    Mr. A. L. Chatfield, village solicitor, for appellee.
   Collier, J.

This suit was brought by plaintiff, appellant herein, in the Common Pleas Court of Vinton County, against the defendant, appellee herein, the village of McArthur, to recover, under contract, a balance due for the construction of sewers for the village of McArthur. Defendant, by cross-petition, claimed breach of the contract by plaintiff, and sought recoupment of liquidated damages in the amount of $4,653.41 for delay by plaintiff in completion of the improvement. Defendant also applied for an arbitration of the issues as provided by a clause in the contract between the parties for construction of the sewers. This application by defendant was allowed, and a board of three arbitrators was appointed. After a hearing, the arbitrators filed a report finding for the defendant in the sum of $4,653.41. Plaintiff then filed a motion to set aside the award of the arbitrators, and defendant filed a motion for confirmation of the report of the arbitrators. The two motions were submitted to the court by stipulation for determination upon the merits without a jury and. upon the record and transcript of evidence taken by the arbitrators. The trial court found in favor of the defendant upon its cross-petition in the sum of $3,825, which was reduced to judgment by journal entry filed with the clerk of courts July 19, 1954. Prom that judgment the plaintiff has appealed to this court on questions of law.

The conceded facts are that the ordinances providing for the construction of sewer and water lines did not specify any time for the completion of the work and did not indicate in any manner that “time was of the essence.” However, the contract entered into between tbe contractor and the village provided expressly that the work was to be completed within a period of 150 days and provided, also, for liquidated damages in the sum of $25 per day “for each and every day the time employed upon said work may exceed the time stipulated for its completion.” The appellant relies on the contention, that the provision of the contract for liquidated damages for delay in completion of the work was not contained in the ordinances and, for that reason, may not be inserted into the contract, and is, therefore, void.

The powers of a municipality in Ohio to contract are derived from the Ohio Constitution,' Section 4, Article XVIII, which reads as follows:

“Any municipality may acquire, construct, own, lease and operate within or without its corporate limits, any public utility the product or service of which is or is to be supplied to the municipality or its- inhabitants, and may contract with others for any such product or service. * * *”

See City of Cleveland v. Village of Cuyahoga Heights, 81 Ohio App., 191, 75 N. E. (2d), 99. The procedure in such matters is prescribed by statutes, and in order to determine the validity of the contract in this case we must refer to these statutes. Section 731.05, Revised Code (Section 4211, General Code), provides:

“The powers of the legislative authority of a city shall be legislative only, it shall perform no administrative duties * * *. All contracts requiring the authority for their execution shall be entered into and conducted to performance by the board or officers having charge of the matters to which they relate. After the authority to make such contracts has been given and the necessary appropriation made, the legislative authority shall take no further action thereon.”

The ordinances introduced in evidence show that the council decided to' proceed with the construction of sewers, adopted certain plans and specifications, provided for the assessment of the lots and lands to be benefited, provided for the issuance of bonds to pay for the improvement, defined the territory to be included in the improvement, and, otherwise, met all the requirements of an ordinance of this kind. At this point the council had gone as far as it could go under the statute, and the execution and supervision of the contract for the improvements then became the duty of the officers having charge of such matters. The contract in question was signed on behalf of the village by Robert Will, president of the Board of Public Affairs, attested by Evan Bobo, clerk, and on behalf of the contractor was signed by J. Fred Snyder. Plaintiff raises no question as to the legal formalities in the execution of the contract.

As we construe this statute, the council of the village of McArthur performed its full duty in the enactment of the ordinances to proceed with this improvement when they authorized the construction of the sewer and made provision for the payment of the work. From then on it became the duty of the other officers of the village in charge of such matters to execute the contract and supervise the work to completion. Of course, the contract had to be made in compliance with the ordinance as to the type and extent of the improvement, but all such details as relate to the manner of doing the work and the time of the completion of the work aré the responsibility, not of the council, but of the officers of the village whose duty it is to attend to such matters. Letting a contract for a public improvement is not a legislative function. This is a novel question in Ohio. Decisions of other jurisdictions under different statutes shed little light on the question to be determined.

Provisions in contracts for damages for delay in completion of public construction are frequently made, and such contracts are measured by the same tests and are subject to the same rights and liabilities as are other contracts. 10 McQuillin Municipal Corporations (3 Ed.), 498, Section 29.125. The terms of the contract in the instant case are not unusual and in our opinion are very reasonable, considering the expenses to the village caused by the delay.

Our conclusion is that it is not necessary to include in the ordinance for a public improvement a provision for liquidated damages for delay in completion of the work in order to make valid and effective such a provision in a contract later let by the proper officers. By the express terms of the statute it became the duty of the president of the Board of Public Affairs to execute the contract and conduct the work to completion. In the performance of such duty an officer is necessarily vested with discretionary powers to fix the time of completion of the work by including a clause to that effect in the contract.

Plaintiff in his reply brief claims that the village has waived any claim it may have had to liquidated damages by accepting the work. The final estimates showed a balance due appellant of $4,002.80. The village paid the contractor $2,456.21 and retained $1,546.59 which represents the amount paid by the village to an inspector of the work for services rendered after July 10, 1951, the last completion date agreed upon by the village and the contractor. The work was not completed until December 10, 1951. At that time, apparently, the village was willing to accept this amount in full as liquidated damages. However, when plaintiff brought this action to recover the sum thus retained, the village, by way of cross-petition, claimed the full amount of liquidated damages to which it was entitled under the terms of the contract. Payment in full of the contract price and acceptance of the work by the village would constitute a waiver of such damages. Hubbard v. Norton, 28 Ohio St., 116. This was not done in the instant case, but, on the contrary, the village retained a part of the last estimate and thereby asserted its right to claim such damages. The mere fact that the village did not claim the full amount of damages provided in the contract in the first instance is not a bar to a later claim for such amount. Furthermore, if a party to an action wishes to prove a waiver upon which he relies, he must plead it. Globe Indemnity Co. v. Wassman, 120 Ohio St., 72, 165 N. E., 579. We find no such allegation in either the petition or reply.

There being no error prejudicial to the rights of the plaintiff, the judgment of the Common Pleas Court is affirmed.

Judgment affirmed.

McCurdy, P. J., and Gtllen, J., concur.


author: Kovachy, J.

text:
    Parker, a. k. a. Palker, Appellee, v. Friendt, Appellant.
    (No. 22944
    Decided March 10, 1954.)

      Messrs. McDonald, Hopkins, Reed & Hardy, for appellee.

      Mr. Steven M. Kormendy, for appellant.
   Kovachy, J.

This cause had its inception in the Municipal Court of Cleveland where plaintiff, appellee herein, obtained a judgment by confession on a cognovit note signed by defendant, appellant herein. The judgment was satisfied through garnishment proceedings. Defendant thereafter filed a petition to vacate the judgment and was permitted to file an answer and cross-petition. The issues thus joined were tried to a jury which brought in a verdict in favor of plaintiff on the petition and the cross-petition. On such verdict, judgment was rendered by the court. Upon appeal to this court, the judgment was reversed and the cause remanded for further proceedings. The jury, in the second trial, again brought in a verdict for the plaintiff on the petition and the cross-petition on which judgment was rendered and the appeal on questions of law from this latter judgment is now before us.

Plaintiff’s petition in substance alleged that $1,600 with interest was due from defendant on a certain promissory note, attached to and made a part of the petition, which note the defendant had failed to pay according to its terms and conditions.

The defendant in her answer denied that she was indebted to the plaintiff on the promissory note in any sum whatsoever and further, without denying that the signature on the alleged promissory note was her own, denied that she placed it on the paper with the knowledge that it was a promissory note to pay the plaintiff the sum of $1,600, or any other sum. She pleaded further that the note was wholly without consideration and that the obtaining of it by plaintiff from defendant was fraudulent and void.

Defendant’s cross-petition set forth in detail the court proceedings culminating in the satisfaction of the original judgment and then reiterated the claims made in the answer and prayed “that the judgment obtained by the plaintiff against defendant as aforesaid, be vacated and held for naught and that plaintiff’s petition be dismissed and that defendant be awarded a judgment on her cross-petition in the amount of $2,892.95 with interest at six percent from June 6, 1950, together with costs of this action.”

Plaintiff filed a reply denying defendant’s claims in her answer and cross-petition.

We have read the bill of exceptions carefully. Plaintiff testified that he advanced $1,600 to defendant to purchase a piece of land with two houses. He introduced an official bank check made out to him as payee in the amount of $1,475, and endorsed by him and the defendant, which check admittedly was deposited in the real estate transaction. He introduced also a purchase agreement signed by him on behalf of defendant, which verified his claim that he made a cash deposit. Defendant, on cross-examination, admitted that the signature on the note was her signature. Plaintiff’s counsel testified that the note was filled out in his handwriting in his law office in the presence of both plaintiff and defendant and that defendant then and there signed the same with his pen. On sight, the ink of the filled in matter and of the signature seem uniform in body and color.

The defendant in her defense said that plaintiff had cashed some of her pay checks and had kept money owing to her which was repaid in the house transaction, he saying at the time: “Well, you take the money that you have and the little bit more that you need I will put to it because I owe you that much.” She then explained this claimed remark by saying: “For coming in every day to spend his time there,” the two apparently having carried on a close friendship for years despite the marriage status of plaintiff and his four children.

To bolster this claim, however, defendant was able only to produce two paychecks in the aggregate sum of $90.65 which she claimed were cashed by plaintiff for her.

Defendant further testified that at the time the note was signed by her it was not filled out and that plaintiff told her he wanted her to give him a receipt to show that he did not owe her any money so if he and her daughter should come to live with her, if anything should happen to her, her daughter could not turn around and sue him for any money that belonged to her; and that he urged her to “sign this” when she went to get her receipt book, and said “so why bother filling it out. I will just keep it in case I ever have to have it” when she suggested “making it out.”

Plaintiff admitted cashing some of her checks but claimed that in all instances it was a mere accommodation and vehemently denied that he had ever kept any money belonging to her.

The note signed by defendant was of the printed form variety. The printed matter was as follows:

We believe the verdict and judgment in this case to be supported by overwhelming evidence. Plaintiff’s evidence was positive and specific, fully corroborated by authentic documentary evidence as well as oral testimony of a probative nature. Defendant’s evidence, wholly uncorroborated, was general and vague and in some respects fantastic. Moreover, she obviously is a person of average intelligence and able to read and write. It should be difficult to believe that such a person, while in the full possession of her faculties, signed an instrument, plainly a note on its face, believing it to be a receipt. In our opinion, no intelligent jury, from the evidence in this case, could come to any other conclusion than the one indicated herein.

Lawsuits, by their very nature, must be decided by the evidence in the case. The general must yield to the specific — the nebulous to the real — the vague to the certain. There is no other way known to man to settle controversies. In the great majority of cases justice is thus obtained.

Defendant presents seven assignments of error. Three have to do with the general charge of the trial court. We have considered each in its relation to the charge as a wholes and in the light of the pleadings, evidence, issues and verdict.

In Western Ohio Ry. Co. v. Fairburn, Admr., 99 Ohio St., 141, 124 N. E., 131, the Supreme Court, at page 142, said:

“In determining the question of error in the charge of the trial court to the jury, it is necessary to consider that part of the charge which is claimed to be erroneous, in connection with the entire charge, to determine if the charge as a whole is erroneous ; or, if any part thereof is erroneous, whether the same is prejudicial. ’ ’

The issues made by the petition and answer were simple, (1) did the defendant sign the promissory note believing the same to be a receipt rather than a note and (2) was the defendant indebted to the plaintiff in the sum of $1,600 at the time?

The defendant claims the italicized portion of the following instruction was prejudicial:

“Now, under the law, members of the jury, while you can read and write is chargeable responsibility in signing any ‘document [sic]. It is the duty of one who can read or write and who is of average intelligence and has mental ability to understand, to know what he is signing (and if he signs in blank then he is charged with the responsibility of whatever is filled in later on).”

The plaintiff’s case is bottomed on the claim that defendant signed a note complete in every detail. Defendant’s case rests on the claim that the instrument, when signed, was in blank, she signing what she believed to be a receipt. Clearly then it was one or the other. The jury by its verdict adopted plaintiff’s version. Even had they found for the defendant, the legal significance of matter filled in on a blank note would have been of no moment to them since that question patently was not involved in the ease. In onr opinion, the jury conld not have been misled by this instruction and no prejudicial error ensued.

“Generally speaking, error in the instructions given in civil cases is not ground for reversal unless it is calculated to mislead the jury to the prejudice of the party seeking reversal.” 4 Ohio Jurisprudence (2d), Appellate Review, 253, Section 986.

The other claims of prejudicial error as to the charge of the court have to do with the burden of proof on the cross-petition, and degree of proof required in proving fraud in connection with the cross-petition. We believe the charges given by the court to be erroneous but not prejudicial under the circumstances existing in this case. The cross-petition asked for the return of money paid plaintiff in satisfaction of the very note that is the subject of controversy here. Manifestly, when the jury found for the plaintiff on the petition and in effect decided that the original judgment on the note was just and the money paid in satisfaction of it proper, the cross-petition asking for the return of that money fell of its own weight and the finding on it had to be for the plaintiff. No consideration whatsoever of the cross-petition by the jury under the circumstances was required. Such was the very instruction given the jury by the trial court when it said:

“If you find that the plaintiff has proved by a preponderance, of the credible evidence that his allegations are true, then you will find for the plaintiff, and you will find for the plaintiff on his petition and assess his damages at $2,120.54 which is the amount of the judgment obtained and the interest today; and find for the plaintiff on the defendant’s cross-petition.”

It is obvious, therefore, that any instruction given the jury with respect to the cross-petition became of no concern to the jury upon its finding for the plaintiff on the petition and played no part in the final determination' of this cause.

Defendant complains that she was not permitted to show want of consideration because objections to questions asked of defendant about money belonging to her and kept for her by the plaintiff were sustained. Answers were proffered in the record. The proffered answers disclose that the plaintiff kept about $1,200 of her money. We believe that, had the answers to these questions been allowed, they would have been subject, in each instance, to a motion to strike with instructions to the jury to disregard them since, in effect, they were self-serving conclusions wholly unsupported by other evidence and of no probative value. Moreover, the record shows many instances where defendant was permitted to testify to monies owed her by plaintiff, as shown by the following:

“Well, up until about July of 1943, my daughter and I always pooled our earnings; and my home was entered at that time and Mr. Palker told me that I shouldn’t leave my money at home, and if I give it to him to handle why it would be safe.
it * # *
“Q. Did you, over the period from June ’43 up until the purchase of this house, did you turn any money over to Mr. Palker? A. Well, sometimes I got it back and sometimes' he put it in his pocket to keep for me.
ti * # #
“A. Well, I didn’t have quite two thousand; and he says, ‘Well, you take the money that you have and the little bit more that you need I will put to it because I owe you that much’— for coming in every day to spend his time there.
i t # * %
“Q. Was that the only bank account that you had? A. That is, beside the money that I had at home and what Mr. Palker had. ’ ’

There was no prejudicial error in this regard.

The defendant complains also that the testimony of a “lie detector” operator was erroneously excluded. We believe the court acted correctly in this respect. Courts of Ohio have uniformly excluded such testimony except in the case of an agreement between the parties themselves to allow such evidence. We recognize the fact that this instrument has demonstrated much usefulness in many fields of endeavor.

The introduction of its results as evidence in a court of law, however, presents many difficulties. Exponents of it admit some limitations. Inbau, in 26 Boston University Law Review (1946), 264, The Lie Detector, reports the'following estimate based on the experience of the Chicago Scientific Crime Detection Laboratory: (1) the examiner can make a definite and accurate diagnosis in 75 per cent of the cases; (2) the record will be too indefinite in its indications to permit a definite diagnosis in 20 per cent of the cases; (3) the margin of probable error is 5 per cent.

Another experiment which attempted to distinguish between actual guilt of crime and mere guilty knowledge reports 86 per cent accuracy (39 Journal of Criminal Law & Criminology [1948-1949], 532, and 5 Vanderbilt Law Review, 1951-1952).

The operator presented in this case was a police sergeant of the city of Shaker Heights with three and one-half years experience with the polygraph. No explanation was permitted the jury as to the scientific principles utilized in the operation of the instrument or its probable accuracy. The question and answers proffered into the record, out of the hearing of the jury, had to do with the questions propounded the defendant during the test, answers to them, and the operator’s interpretation and conclusion with respect to them.

The instrument used as a lie detector is a complicated affair. It is, in fact, a combination of many instruments, that is why it is called a polygraph: “the cardiograph for pulse rate, sphygmograph for blood pressure, the pneumograph for the respiratory movements and the galvanograph to record galvanic reflexes.” (5 Vanderbilt Law Review, 551.) Each mechanism automatically registers the physiological reaction of the subject on a moving graph. The fundamental theory underlying its operation rests on the premise that the voluntary, conscious and intended mis-statement of a fact by any person creates an emotional disturbance within one’s body that irrepressibily manifests itself by accelerated changes in certain physiological processes, i. e., heart beat, blood pressure, breathing and perspiration. From the simultaneous recording of this information, the operator obtains the data on which he bases his conclusion as to whether the person interrogated consciously and intentionally lied in his answer to questions propounded during the test material to the matter under investigation. The polygraph, thus, may establish the fact that the person was lying, but eannot prove that he was not telling the truth, only that he was telling what he believed to be the truth. (5 Vanderbilt Law Review, 557.)

The test includes three separate entities: the machinery, the operator, and the subject. Were it allowed in evidence, the operator would be subject to cross-examination with respect to each. We assume that his expertness in this case extended to a full knowledge of the method of operation and limit of accuracy of each of the four instruments that comprises the mechanism and that his own qualifications were adequate. But, how would he be legally competent to answer pertinent and searching questions as to the physiological and psychological reactions involved with respect of the subject?

Would he know what part, if any, race, national origin, environment, age, habits, past experiences, temperament, fear, state of health, nervousness, etc., play in the psycho-physiological responses to emotional stimulae of different individuals? These would be relevant questions in the situation and would be perfectly proper to ask since the weight a jury might give to the opinion of the expert may be dependent upon the answers given.

Mr. Keeler, the inventor of the lie detector, believes that until operators are selected by examination and licensing, the tests of his machine should be unavailable for court room use. (5 Vanderbilt Law Review, 551.)

Certain it is, that, inasmuch as the results of the test dépend upon delicate physiological reactions in response to psychological disturbances within an individual, a court, called upon to pass upon the admissibility of such results as evidence in a case, would have to insist that the person conducting the test and testifying in court concerning it have sufficient training and knowledge to fully understand the significance of these manifestations in the human body as related to the subject under consideration, in addition to a complete comprehension of the mechanism utilized as well as a broad experience in the operation of the instrument.

We find no court of last resort that has ruled favorably in the admission of this character of evidence. People v. Becker, 300 Mich., 562, 2 N. W. (2d), 503, 139 A. L. R., 1171; Boeche v. State, 151 Neb., 368, 37 N. W. (2d), 593; State v. Cole, 354 Mo., 181, 188 S. W. (2d), 43; People v. Wochnick, 98 Cal. App. (2d), 124, 219 P. (2d), 70.

We hold, therefore, that the results of tests made on an apparatus called the polygraph, and known as a lie detector, in its present state of development and operation, general scientific recognition and public acceptance, are inadmissible in evidence during the trial of a cause in a court of law.

Error is also claimed in the refusal of the trial court to give three special charges to the jury before argument. No. 1 of these reads as follows:

“I charge you as a matter of law that if you find the defendant, Mary Ricchetti [formerly Mary Friendt], did not, at the time of the signing of the note, know in fact that it was a promissory note, your finding must be for the defendant, Mary Ricchetti, on both the petition and the cross-petition.”

In our opinion this charge is erroneous. It is not complete on the subject. The defendant contended that the paper she signed was represented to her by the plaintiff to be a receipt. This phase of the case, so important in the matter of the signing of the note, is omitted.

Special charge No. 2 reads:

“I charge you as a matter of law that plaintiff, J. L. Palker, has the burden of proof to satisfy you by a preponderance of the evidence that the instrument in question here was given for the consideration stated, $1600. This burden does not shift to defendant at any stage of the case, and although such instrument in the hands of J. L. Palker is deemed prima facie to have been issued for a valuable consideration, yet the burden is always upon plaintiff, J. L. Palker, to satisfy you that upon all of the evidence the consideration stated in the instrument was in fact the consideration for it.”

This charge, likewise, is not complete on the subject and is, therefore, erroneous. It fails to say to the jury that while the burden of proof on the question of want of consideration remains with the plaintiff throughout the case, the burden of proceeding with the evidence shifts to the defendant once the plaintiff makes out a prima facie case by the introduction and acceptance of the note in evidence.

In State, ex rel. Herbert, Atty. Genl., v. Hoff, 140 Ohio St., 236, 42 N. E. (2d), 990, at page 239, the Supreme Court said:

“In such, a case the plaintiff may rest without offering any evidence to prove consideration for reasons which are obvious. A promissory note imports consideration and when execution and delivery are admitted or shown and the note offered in evidence, a prima facie case is made out. The burden to go forward with respect to the defense of want of consideration is upon the defendant but the burden of proof rests continuously upon the plaintiff.”

In In re Estate of Kennedy, 82 Ohio App., 359, 80 N. E. (2d), 810, paragraph three of the syllabus reads:

“A note imports consideration and where the execution and delivery of a note are admitted or shown and the note produced in evidence, a prima facie case is made out and the burden to go forward with the defense is upon the defendant, but the burden of proof rests on the plaintiff throughout the trial and does not shift.”

Special charge No. 3 reads:

“I charge you as a matter of law that if you find that defendant, Mary Ricchetti, did not voluntarily deliver to J. L. Palker the document in question here, knowing it to be a promissory note, then your finding must be for defendant, Mary Ricchetti, on both the petition and the cross-petition.”

This charge is similar to that presented in No. 1, with, the added statement “did not voluntarily deliver * * There was no evidence as to the latter. It was clearly erroneous and properly refused by the trial court. 39 Ohio Jurisprudence, 1029, Section 312.

The defendant claims error on the part of the court in permitting plaintiff’s counsel to testify. She sets forth Canon 19 of the American Bar Association Canons of Professional Ethics, which reads as follows:

“When a lawyer is a witness for his client, except as to merely formal matters, such as the attestation or custody of an instrument and the like, he should leave the trial of the case to other counsel. Except when essential to the ends of justice, a lawyer should avoid testifying in court in behalf of his client.”

The facts of this case between plaintiff and defendant were in sharp conflict. Plaintiff testified that he and defendant were in his lawyer’s office when the promissory note was filled out and signed by the defendant. This became the most crucial fact of the entire case. The ends of justice, it seems to us, demanded that any person having knowledge affecting so vital an issue in a case be required to testify. For a lawyer not to testify under such circumstances would be thwarting the very purpose prompting his efforts in the cause under consideration. We feel there was neither impropriety nor error in this respect.

From a consideration of the entire record in this case, we feel substantial justice has been done defendant and the judgment is, therefore, affirmed. Section 2309.59, Revised Code.

Judgment affirmed.

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


author: Hurd, P. J.

text:
    Silberman, Appellant, v. Silberman et al., Appellees.
    (No. 23074
    Decided September 29, 1954.)

      Messrs. Daus & Schwenger and Mr. Harry Kottler, for appellant.

      Messrs. Bernsteen & Bernsteen and Mr. Jos. S. Kreinberg, for appellees.
   Hurd, P. J.

This is an appeal on questions of law from a final order of the Court of Common Pleas sustaining a motion to quash service of summons by publication upon two individual defendants who are residents of Michigan. There are three other individual defendants residents of Ohio and two corporate defendants, The Shaw Warehouse Company and The Shaw Holding Company, both domiciled in Ohio with their principal places of business in the city of Cleveland.

Plaintiff, in his petition, alleges in substance that he had in his possession the sum of approximately $45,000, being the property jointly of the plaintiff and his brother and sisters, defendants herein; and that under an agreement these funds were deposited with a third party for the purpose of purchasing two separate parcels of real property described in the petition; that such third party caused the two corporate defendants to be formed and the real property was conveyed by deed to said corporations for the benefit of plaintiff and individual defendants ; and that, subsequently, in violation of such agreement, all the shares of stock were issued to his brother and sisters and no shares of stock were issued to him covering his proportionate interest in the trust fund. By this action he seeks a decree to impress a constructive trust in his favor upon a proportionate number of shares of stock claimed to be due him in the two corporations.

Personal service was had upon the statutory agents of the resident corporate defendants and upon the other individual defendants residing in this county.

Plaintiff by affidavit secured service by publication upon the two nonresident defendants without any attachment of any property of said defendants in this jurisdiction. The court, in sustaining the motion to quash, ruled as follows:

“This is an action to declare a trust and not an action by a trustee as contemplated by the Code and for the further reason that there is no seizure of real estate or personal property whereby jurisdiction might attach.”

The principal assignment of error is that the trial court erred in sustaining the motion to quash service of summons by publication on the two nonresident defendants, and in dismiss-mg them from the action on the ground that there was no seizure of real or personal property of the nonresident defendants.

It is the contention of plaintiff, appellant herein, that the situs of the shares of stock of the defendant domestic corporations, for the purpose of determining title thereto, is in Ohio and that, since the action is in rem and the res is before the court, service of summons by publication is proper without the necessity of attaching the shares held by the individual nonresidents. Plaintiff relies upon Section 2703.14, subsection (1), Revised Code, formerly Section 11292, subsection (9), General Code, which reads as follows:

‘ ‘ Service may be made by publication in any of the following cases:
í Í # * *
“(I) In an action which relates to or the subject of which is real or personal property in this state, when the defendant has or claims a lien thereon, or an actual or contingent interest therein, or the relief demanded consists wholly or 'partly in excluding him from any interest therein, and such defendant is not a resident of this state or is a foreign corporation or his place of residence cannot be ascertained.”

It appears that the question presented is one of first impression in Ohio. It is argued by plaintiff that a comparable statute has been interpreted favorably to the contention of the plaintiff by the Supreme Court of the United States in the case of Jellenik v. Huron Copper Mining Co., 177 U. S., 1, 44 L. Ed., 647, 20 S. Ct., 559, where suit was brought in the United States Court for the District of Michigan, by shareholders in a Michigan corporation against the corporation and certain nonresident stockholders. The federal statute upon which that action was based was referred to in the Jellenik case as “the eighth section of the act of March 3, 1875, entitled ‘an act to determine the jurisdiction of Circuit Courts of the United States, and to regulate the removal of cause from state courts and for other purposes.’ ” (Presently, Section 1655, Title 28, U. S. Code; Barron and Holtzoff, 3 Federal Practice and Procedure [Rules Ed.], 581.)

The applicable part of that act, as quoted in the Jellenik case, provides as follows:

“8. That when in any suit, commenced in any Circuit Court of the United States, to enforce any legal or equitable lien .upon or claim to, or to remove any incumbrance or lien or cloud upon the title to real or personal property within the district where such suit is brought, one or more of the defendants therein shall not be an inhabitant of or found within the said district, or shall not voluntarily appear thereto, it shall be lawful for the court to make an order directing such absent defendant or defendants to appear, plead, answer or demur, by a day certain to be designated, which order shall be served on such absent defendant or defendants, if practicable, wherever found, and also upon the person or persons in possession or charge of said property, if any there be; or where such personal service upon such absent defendant or defendants is not practicable, such order shall be published in such manner as the court may direct, not less than once a week for six consecutive weeks; and in case such absent defendant shall not appear, plead, answer or demur within the time so limited, or within some further time, to be allowed by the court, in its discretion, and upon proof of the service or publication of said order, and of the performance of the directions contained in the same, it shall be lawful for the court to entertain jurisdiction, and proceed to the hearing and adjudication of such suit in the same manner ■as if such absent defendant had been served with process within the said district; but said adjudication shall, as regards said absent defendant or defendants, without appearance, affect only the property which shall have been the subject of the suit and under the jurisdiction of the court therein, within such district.” (Emphasis by the court.)

The court in the Jellemk case held, as appears by paragraph 3 of the syllabus, as follows:

“3. That for the purposes of that act the stock held by the citizens of Massachusetts was to be deemed personal property ‘within the district’ where the suit was brought. The certificates of stock were only evidence of the ownership of the shares, and the interest represented by the shares was held by the company for the benefit of the true owner. As the habitation or domicil of the company is and must be in the state that created it, the property represented by its certificates of stock may be deemed to be held by the company within the state whose creature it is, whenever it is sought by suit to determine who is its real owner.”

The plaintiffs in that case claimed that they were the real owners of certain shares of stock of the corporation, the certificates of which were held by the Massachusetts defendants and sought a decree removing a cloud upon their title to such shares and adjudging that they were entitled to such shares. The analogy between that case and the instant case is immediately apparent. It remains only to determine whether or not there is any substantial difference between the federal statute and the Ohio statute, Section 2703.14, subsection (I), Revised Code, relied upon in this case.

In a comparison of the applicable parts of the two statutes, making allowance for the differences in jurisdiction, we find no substantial difference. Attention is directed to the provision of Section 2703.14, subsection (I), Revised Code, where quite definitely service by publication is authorized in an action which relates to real or personal property when the defendant claims a lien thereon, or is wholly or partly excluded from an interest therein. This provision substantially equates a similar provision in the above quoted federal statute “to enforce * * * or to remove any encumbrance or lien or cloud upon the title to real or personal property.”

In the instant case, the plaintiff is claiming by petition that he is being excluded from his interest in the corporations and that he is entitled to a decree in the nature of a lien upon the proportionate number of shares or to have a trust declared therein in his favor. This is sufficient, we believe, to bring the plaintiff within the purview of the Ohio statute.

From the foregoing, it is the conclusion of the members of this court that the Ohio statute is substantially comparable to the federal statute; and that, inasmuch as the domicile of the defendant companies must be in Ohio, the property represented by the certificates of stock thereof must be deemed to be held by the corporations within Ohio whose creatures they are. This is factually true in this case inasmuch as the principal assets of the corporations consist of real property located in Cleveland, Ohio. As we view it, the certificates of stock held by the nonresident defendants in Michigan are evidence only of their ownership of shares, and the interest represented by the shares is held by the company for the benefit of the true owners. In other words, the situs of the shares of stock, for the purpose of determining title thereto in the instant case, must be found to be in Ohio. Obviously, no personal judgments can be rendered against the nonresident defendants; but the action being one in rem, the court is vested with jurisdiction authorizing service by publication to adjudicate the issues made by the pleadings.

We have examined cases in other jurisdictions which are analogous and are cited as follows: Hook v. Hoffman (1915), 16 Ariz., 540, 147 P., 722; Gamble v. Dawson (1912), 67 Wash., 72, 120 P., 1060; Patterson v. Farmington Street Ry. Co. (1904), 76 Conn., 628, 57 A., 853; Thompson v. Terminal Shares, Inc. (C. C. A. 8, 1937), 89 F. (2d), 652; Reeves v. Pierce (1902), 64 Kan., 502, 67 P., 1108; Harris v. Chicago Title & Trust Co., (1930), 338 Ill., 245, 170 N. E., 285; Fahrig v. Milwaukee & Chicago Breweries, Ltd. (1904), 113 Ill. App., 525; Andrews v. Guayaquil & Quito Ry. Co. (1905), 69 N. J. Eq., 211, 60 A., 568.

Defendants argue that there are certain factual differences which must distinguish the instant case from the Jellinek and other cases. It is true that there are factual differences in certain respects; but we have examined the facts in each case carefully, and have reached the conclusion that in principle the issues made in each case are the same. The fact that in the Jellinek case the action was on behalf of plaintiff and other stockholders does not change the principle, nor does the fact that the directors and officers had made an illegal assessment on shares of stock of stockholders change the principle so far as the rights of action are concerned.

We are confirmed in this view by decisions of other jurisdictions, of later date than the Jellinek case cited above, which, upon analysis, clearly show that the situs of the shares of stock of a domestic corporation, for the purpose of determining title thereto, is where the corporation is domiciled; and that in such case, where the action is in rem only, service may be had by publication if authorized by statute.

For the reasons stated, therefore, the judgment of the Common Pleas Court is reversed for error of law in granting motions to quash service of summons, and the cause is remanded with instructions to overrule such motions and for further proceedings according to law.

Judgment reversed.

Kovachy and Skeel, JJ., concur.


text:
    City of Toledo, Appellee, v. Tucker, Jr., Appellant. (Two cases.)
    (Nos. 4802 and 4803
    Decided December 13, 1954.)

      Mr. Nicholas Walinski, for appellee.

      Messrs, Winchester & Winchester, for appellant.
   Fess, P. J.

These two appeals are on questions of law from judgments of the Common Pleas Court affirming judgments of conviction of misdemeanors by the Municipal Court of Toledo. In appeal No. 4802, it was charged by affidavit filed August 5, 1953, that on or about June 23, 1953, defendant “did unlawfully fail to comply with a lawful order of the commissioner of health, to wit: to have building located 326 Tecumseh Place in good state of repair, the said building being owned by the said Theodore B. Tucker, Jr.,” contrary to the form of an ordinance of the city.

In appeal No. 4803, it was charged by affidavit filed August 5, 1953, that on or about July 2, 1953, the defendant, “being the owner of duplex located at 3034 Ontario, failed to comply with a lawful order of the commissioner of health to repair the said duplex within 30 days, same being unfit for human habitation, ’ ’ contrary to the form of an ordinance of the city.

In the first case, the defendant was fined' $150 and costs, and in the second case, $100 and costs — $50 of which was suspended during good behaviour.

Neither the ordinance nor any rules and regulations of the commissioner of health were pleaded or introduced in evidence. Since it was the duty of the Municipal Court to take judicial notice of the ordinance pursuant to which the charges were brought, this court on appeal will likewise take such judicial notice. Orose v. Hodge Drive-It-Yourself Co., Inc., 132 Ohio St., 607, 9 N. E. (2d), 671, 111 A. L. R., 954; Village of Strongsville v. McPhee, 142 Ohio St., 534, 53 N. E. (2d), 522. But neither the Municipal Court nor this court may take judicial notice of rules, regulations or orders of administrative agencies of a municipality.

Although affidavits charging misdemeanors are not to be construed with the same degree of strictness as indictments charging major offenses (State v. Marcinski, 103 Ohio St., 613, 134 N. E., 438), the function and purpose of such an affidavit is to advise the defendant of “the nature and cause of the accusation against him” (Village of Strongsville v. McPhee, supra), and guilt must he proved beyond a reasonable doubt. Fuller v. State, 12 Ohio St., 433; Section 2945.04, Revised Code.

In the instant eases, the defendant was charged with failure to comply with a lawful order of the commissioner of health, and at his trials had the right to rely upon the charges as stated in the affidavits. But the record is silent with respect to any rules and regulations of the health department relating to the construction and maintenance of dwellings.

The orders concerning which it is alleged the defendant failed to comply are likewise absent from the record. In case No. 4802, an inspector testified that on June 24, 1953, an order was mailed to the defendant “for this building to be put in a good state of repair, in accordance with the Toledo Building Code, or have said premises vacated, as said premises are a menace to life and health. ’ ’ When asked whether there was any specification for repairs, he said “No, except there is an inspection report on the reverse side included in the order. * * * There is a listing of the various parts of the building, the foundation needs repair and the siding was rotting, the roof was leaking, the condition of the floors was poor, the walls and ceilings had plaster gone. * * * No adequate heating, no tubs or shower, no water closet, no hot water or lavatory, and there was a sink that drained under the floor. Electricity was available, but the wiring was poor; no adequate means of egress from second floor. No adequate screens for doors and windows; no screens in building. The building was rat-infested, and had no adequate garbage or rubbish containers. That was the order sent to the building and fire prevention bureaus.”

It will.be noted that the last sentence seems to relate to the condition of the premises rather than to the provisions of the order mailed to the defendant. It is to be inferred that the order was in the alternative — either to repair the defects or vacate the premises. The inspector testified further that on an inspection made September 11, one family had moved out but that upon an inspection made the day before the trial, another family with five children had moved in downstairs, and that they told him they had bought the property from the defendant. Parenthetically, if the defendant failed to comply with a lawful order of the commissioner of health, he could not well escape the consequences by transferring the property to a third person.

Upon the record before us for review, it is impossible to determine whether the order was reasonable, lawful, or made pursuant to a lawful regulation of the commissioner of health. The burden was upon the city to establish the authority for the issuance of the order and whether it was reasonable or lawful and made pursuant to a proper exercise of the police power conferred upon the commissioner of health by the city charter and ordinances of council enacted pursuant thereto. The city likewise has the burden to establish by competent evidence that the defendant is guilty of the charge laid in the affidavit. There is evidence in the record tending to disclose that the defendant may have violated the provisions of Section 19-26-2 of the Municipal Code providing in part that “every dwelling and every part thereof shall be maintained in good repair by the owner or agent, and fit for human habitation,” but he is not charged with the violation of this section.

The oral testimony of the prosecuting witnesses relating to the contents of the order, in the absence of a satisfactory excuse for not presenting the order itself, is violative of the best evidence rule. State v. Lent, Tappan, 105; Demereaux v. State, 35 Ohio App., 418, 172 N. E., 551; Robbins v. Budd, 2 Ohio, 16.

In its reply brief, the appellee cites no ordinance but relies solely upon the provisions of. Sections 3707.01 to 3707.53, Revised Code, wherein ample authority is provided for the enforcement of orders of boards of health. But the instant prosecutions are brought in the name of the municipality and not in the name of the state. Cf. Sections 1901.21 and 1903.13, Revised Code.

With regard to appeal No. 4803, the evidence relates to a different property and other circumstances, but is of like character and import and fails to disclose the order alleged to have been violated, the rules or regulations pursuant to which the order was issued, and violation by the defendant of the specific provisions of such order.

In reaching our conclusion, we do not condone the maintenance of substandard hovels, even in slum areas, nor do we declare that a municipality is impotent to correct the evil deleterious to the health and hazardous to the life of the unfortunate who may be compelled to live in squalor — but it is recognized that a serious social, as well as economic, problem is inherent in any satisfactory solution. For example, in one of the instant cases the landlord, who received only a modest rent wholly insufficient to warrant remodelling of the premises, in an effort to comply with the order, filed notices to vacate and also filed a restitution action against one of the tenants who was an aged woman suffering from cancer. It is not surprising that under such circumstances the Municipal Court itself continued the action from time to time, apparently making it impossible for the landlord to comply with the alternative provision of the order to vacate the premises. The other tenant consisted of a family of five children, but notwithstanding the difficulty of securing other housing, this tenant eventually vacated the premises.

Upon the records before us for review, the findings that the defendant violated the provisions of any lawful orders of the commissioner of health are manifestly against the weight of the evidence. The judgments of the Common Pleas Court and the Municipal Court are reversed and each cause is remanded to the Municipal Court for a new trial.

Judgments reversed and causes remanded.

Conn and Deeds, JJ., concur.


text:
    Gregg, Appellee, v. Mitchell, Appellant.

      (No. 637
    Decided March 7, 1955.)

      Mr. Chester P. Fitch, for appellee.

      Mr. Louis D. Bannon, for appellant.
   Collier, J.

The defendant, appellant herein, was granted a divorce and given the custody of the four minor children of the parties on July 22, 1950. Since that date the parties have been- in court on many occasions in matters relating to the custody, care and support of these children. On December 24,1954, after a lengthy hearing (the record consists of about 500 pages) on plaintiff’s motion to modify the original order in reference to the custody of the youngest child, James Richard G-regg, 9 years of age, the Common Pleas Court of Scioto County sustained the plaintiff’s motion and changed the custody of said child from the mother to the father. On the same day the order was signed, counsel for the mother (defendant) presented to opposing counsel a notice of appeal and on the same day, without giving notice to opposing counsel, appeared before the presiding judge of the Court of Appeals and requested a stay of execution. The presiding judge of the Court of Appeals in this ex parte proceeding signed an order staying execution upon condition that the defendant give a bond in the sum of $200. This order was filed in the Court of Common Pleas, but was never filed in the Court of Appeals.

Plaintiff has filed a motion to dismiss the appeal for the reason that an appeal has not been properly perfected. Plaintiff contends first that an order modifying the original order as to the custody of children is not a final order and, therefore, is not subject to appeal. With this contention we are unable to agree. In a similar proceeding, in the case of Bower v. Bower, 90 Ohio St., 172, 106 N. E., 969, the Supreme Court of Ohio, in overruling the second paragraph of the syllabus in the case of Rogers v. Rogers, 51 Ohio St., 1, 36 N. E., 310, said:

“It is apparent, however, that the same statutes that authorize an appeal from the original decree would also authorize an appeal from an order modifying that decree. ’ ’

The reviewing courts of Ohio have consistently followed the decision in the Bower case. However, plaintiff’s further contention, that the special statutory provisions prescribing the method of appeal in a case of this kind have not been followed, presents a very important question. Chapter 3109 of the Revise Code, on the subject of “Infants,” beginning with Section 3109.01, authorizes the Common Pleas Court to decide which parent shall have the custody of a child, and the last section of this chapter, Section 3109.07, Revised Code, provides for an appeal from such order, and reads as follows:

“An appeal to a higher court may be had upon the appellant’s giving bond, with one good surety, to the adverse party, approved by the court from whose decree the appeal is taken, in a sum to be determined by it, but not less than accrued costs and a fair estimate of accruing costs. The court before whom such appeal is heard may decree the costs of the proceeding against either party, or divide them in any proportion. ” (Italics supplied.)

In the instant case it will be observed that the provisions of this statute were not followed, in that no application was made to the Court of Common Pleas to determine the amount of the bond and to approve the same. Apparently appellant attempted to perfect her appeal under the general provisions of the Revised Code on appeal beginning with Section 2505.01. Section 2505.03, Revised Code, provides as follows:

“Every final order, judgment, or decree of a court and, when approved by law, the final order of any administrative officer, tribunal, or commission may be reviewed as provided in Sections 2505.04 to 2505.45, inclusive, of the Revised Code, unless otherwise provided by law * * (Italics supplied.)

Section 2505.09, Revised Code, provides for a stay of execution upon the execution of a bond determined and approved by either the court making the order or the court to which appeal is taken.

The question is whether compliance with the general statutes regulating appeal is sufficient to perfect the appeal when a special statute prescribes the method of appeal in that particular kind of action. It is elementary that a litigant has no inherent right of appeal; there is no common-law right of appeal, and such right is purely statutory. It is also well established that, in order for a Court of Appeals to have jurisdiction of an appeal, provisions of law providing the method of appeal must be substantially, if not strictly, complied with. Atsaroff v. Evatt, 37 Ohio Law Abs., 362, 9 Ohio Supp., 141; In re Wilson, 14 Ohio Law Abs., 417; Auditorium Realty Co. v. Hussman, 14 Ohio Law Abs., 727; In re Mahoning Valley Sanitary District, 161 Ohio St., 259, 119 N. E. (2d), 61; American Restaurant & Lunch Co. v. Glander, Tax Commr., 147 Ohio St., 147, 70 N. E. (2d), 93.

In considering the general constitutional and statutory enactments providing for an appeal, with special statutes providing for an appeal in particular matters, the Supreme Court of Ohio in the case of In re Mahoning Valley Sanitary District, supra, held, in the fifth paragraph of the syllabus:

“A prohibition of an appeal as provided by statute comes within the term, ‘otherwise provided by law,’ in Section 12223-3, General Code (Section 2505.03, Revised Code).”

The law of Ohio on this question is well stated by the court in the case of American Restaurant & Lunch Co. v. Glander, supra, at page 150, as follows:

“The very statute which authorizes the appeal prescribes the conditions and procedure under and by which such appeal may be perfected. Where a statute confers the right of appeal, adherence to the conditions thereby imposed is essential to the enjoyment of the right conferred.”

In our opinion, where a special statute prescribes the method of appeal from a particular order, such statute is controlling and the general statutes providing for appeal have no application. Compliance with the general statute, but not with the special statute, is not sufficient to perfect the appeal. The Court of Appeals has'no statutory authority to determine the amount and approve a bond-in a case of this kind and the bond given in the instant case is a nullity. The provisions of Section 3109.07, Revised Code, are plain and specific and prescribe the only method by which an appeal may be effected from an order fixing the custody of a child. This court has no right to render this statute nugatory. The plaintiff having failed to perfect an appeal, the defendant’s motion to dismiss the appeal must be, and hereby is, sustained.

Motion sustained.

Gillen, J., concurs.

McCurdy, P. J., no£«participating.


author: Miller, J.

text:
    Wolf, Appellee, v. City of Columbus et al., Appellants.
    (No. 5175
    Decided January 27, 1955.)

      Mr. W. B. McLeskey and Mr. C. W. McLeskey, for appellee.

      Mr. Chalmers P. Wylie, city attorney, and Mr. J. Russell Leach, for appellants.
   Miller, J.

This cause is before this court as an appeal on questions of law and fact from a judgment of the Common Pleas Court which enjoined the defendants, appellants herein, from interfering with the construction of a post office building to be located at 75 East Hudson Street in the city of Columbus, the same being under process of construction by the plaintiff, appellee herein. It is agreed by the parties that the issues presented have become moot for the reason that the United States government has cancelled its contract with the plaintiff for the construction of the building.

The defendants have filed a motion seeking an order dismissing the cause without prejudice, while the plaintiff has filed a motion for an order dismissing only the appeal. The question of costs does not arise for the reason that it appears the ■defendants are ready and willing to pay all the costs which may be taxed.

The defendants urge, and we think properly so, that if only the appeal is dismissed the restraining order will remain in effect under Section 2505.18, Revised Code, and should the plaintiff at some later date enter into a new contract for a similar building at the same location, the defendants would have no right of appeal from that order. We can see no logical reason for the plaintiff to be left in such an advantageous position because of the new developments which are beyond the control of the defendants. We are aware of the fact that in numerous cases appeals have been dismissed because of the question becoming moot, but in none of them had there been a restraining order issued to the defendant as we have here. We have been cited to only one case wherein the facts are parallel to those presented here, and from our research we think it is the only one available in this state. The case referred to is that of Clover Meadow Creamery Co. v. National Dairy Products Co., 17 Ohio Law Abs., 231, the court stating at page 235:

“Regardless of the procedural question raised, it is the . right if not the duty of the court, when once it has been judicially determined that the cause has become moot, to dismiss the action on its own motion. Miner v. Witt, 82 Ohio St., 237; State, ex rel., v. Palmer, 120 Ohio St., 617; Travis v. Pub. Comm., 122 Ohio St., 355.”

We agree with the plaintiff that the cases cited as authority by the court in the above statement are not parallel with the case at bar, in that they were appeals on questions of law and are not authority for the legal principle pronounced. Still, we are in accord with that principle. All sense of equity, justice and fair play would require that neither of the parties hereto be placed in an advantageous position because of the question becoming moot. On the other hand, such principles would require that the parties be left in the same position they were in at the commencement of the action.

In the case of Wick v. Youngstown Sheet & Tube Co., 46 Ohio App., 253, 188 N. E., 514, a restraining order had been issued against the defendants. An appeal on questions of law and fact was filed, after which the question became moot. The court refused to dismiss the case for the reason only that in so doing the plaintiffs would be deprived of the right to present to the court the ancillary issue involving their right to recover attorney fees and other costs. At page 258, the court said:

“Many other authorities have been cited by the parties in ■this case, each side claiming that they support that party’s contention, but we think we have referred to enough authorities to determine the principle governing the courts under such circumstances ; that is, that the court will not permit the judgment to prejudice either party in the cause. The dismissal of these causes would deprive the plaintiffs of the right to present to this court their ancillary issue of the right to recover attorney fees and other costs. If the motion of the plaintiffs to dismiss the appeal were granted, it would leave the judgment in the court below unreversed, and the issue of the plaintiffs’ right to maintain the actions and obtain the relief prayed for would be res judicata.” (Emphasis supplied.)

Since we do not have an issue on costs involved in the case at bar, we are of the opinion that the motion of the defendants ■to dismiss the action without prejudice should be sustained, and that of the plaintiff should be overruled.

Judgment accordingly.

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