author: By HUNSICKER, J:

text:
    PAYER, Plaintiff-Appellant, v. PAYER, Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23653.
    Decided April 18, 1956.
    Orgill, Klein, Loux & Wickham, for plaintiff-appellant.
    Roudebush, Adrion, Sandorn, Brown & Corlett, for defendant-appellee.
    (STEVENS, PJ, HUNSICKER and DOYLE, JJ, of the Ninth District, sitting by designation in the Eighth District.)
   OPINION

By HUNSICKER, J:

This is an appeal on questions of law from a judgment for alimony and for support of children, rendered by the Common Pleas Court of Cuyahoga County on the cross-petition of the appellee herein, Lida Florence Creamer Payer, the wife of the appellant, Franklin Lee Payer.

On October 16, 1950, Mr. Payer filed his action for divorce in Cuyahoga County, Ohio, and obtained service on Mrs. Payer by publication. On December 21, 1950, Mrs. Payer filed her answer to the petition, and on April 21, 1952, an amended answer. On January 14, 1953, Mrs. Payer’s second amended answer was filed. On May 15, 1953, Mr. Payer filed an amended petition, and again service was made on Mrs. Payer by publication. On July 6, 1953, Mrs. Payer filed an answer and cross-petition to the amended petition, and obtained personal service on Mr. Payer.

On November 20, 1954, Mr. Payer dismissed his “petition” for divorce, without prejudice. He may have intended to dismiss his amended petition, but the journal entry does not so designate and consequently the amended petition remained as a pleading in the case.

On May 20, 1955, Mr. Payer filed an amended answer to the cross-petition of Mrs. Payer, and on May 24,1955, a reply to the amended answer was filed.

On August 9, 1955, Mr. Payer filed an amended answer to the cross-petition, and Mrs. Payer filed her reply thereto.

On August 13, 1955, after trial, at which Mr. Payer was represented by counsel although not personally present, a judgment was entered in favor of Mrs. Payer on her cross-petition.

Mr. Payer says the trial court committed prejudicial error in awarding a judgment to Mrs. Payer, and sets out eleven assignments of error, one of which assignments, at the time of oral argument to this court, was withdrawn.

We have examined all of these assignments of error, and we believe that only the first and second of such assignments merit any discussion in this opinion. These assignments are as follows:

“First: The Court erred in finding that the plaintiff had been a resident of the County of Cuyahoga for more than one year prior to the filing of the original petition for divorce on Octobér 16, 1950.
“Second: The Court erred in retaining jurisdiction of the claims of the defendant and the subject matter of the suit, and in failing to dismiss the defendant’s cross-petition for lack of jurisdiction by reason of a failure of proof of residential requirements.”

Mrs. Payer was a resident of the state of California. Counsel for Mr. Payer insist that it was necessary for Mrs. Payer to prove every material allegation of the cross-petition, including the jurisdictional fact as to the residence of Mr. Payer in Cuyahoga County, Ohio, in order for her to be awarded a judgment on the cross-petition.

Counsel for Mr. Payer do say, however, that they are making no claim that Mrs. Payer (even after the dismissal of the “petition” for divorce as filed by Mr. Payer), could not proceed with her cross-petition; but they insist that the court would have no jurisdiction to consider such cross-petition unless the jurisdictional facts were proved.

The original petition of Mr. Payer and the amended petition thereafter filed stated that “Franklin Lee Payer, plaintiff, * * * says that he is and has been for more than one (1) year last past an actual and bona fide resident of Cuyahoga County and the State of Ohio * * These petitions were sworn to positively by Mr. Payer. The answer and amended answers filed by Mrs. Payer admitted the allegation as to residence as claimed by Mr. Payer. The cross-petition of Mrs. Payer, which is a part of her answer to the amended petition, did not set forth any statement as to residence of either Mr. or Mrs. Payer.

There is testimony in the bill of exceptions and an affidavit filed by counsel for Mr. Payer that, at the time of the trial, Mr. Payer claimed to be a resident of Las Vegas, Nevada, where he had an action pending for divorce from Mrs. Payer. There is also testimony by Mrs. Payer that Mr. Payer was a resident of Cleveland, Ohio, and that he was listed in the telephone directory as living at the Berkshire Apartments in Cleveland, Cuyahoga County, Ohio. His counsel, upon interrogation during the trial, said in a professional statement to the court that Mr. Payer had been out of the city (of Cleveland) about a year.

Thus, by the statement of counsel for Mr. Payer, the inference is that he was a resident of Cuyahoga County, Ohio, at the time he filed his petition, and remained such a resident until long after service of summons was served upon him personally upon the cross-petition which Mrs. Payer filed in this action.

As further evidence of the residence of Mr. Payer, he testified in December, 1951, at the trial of an action brought against him by the mother of Mrs. Payer (which testimony by stipulation was made a part of the trial herein in the Common Pleas Court), that he lived in Cleveland, Ohio. This testimony was thus given more than a year after the petition was filed and more than a year before the amended petition of May 15, 1953, was filed.

We think the natural inference to be drawn from this evidence is that he was a bona fide resident of Cuyahoga County, Ohio, during all of the time when this action was pending in the trial court.

We think there was sufficient positive evidence before the court to find that Mr. Payer was a bona fide resident of Cuyahoga County, Ohio, at the time he brought his wife within the jurisdiction of the court of that county.

The admission made in the amended petition to which the cross-petition herein was filed, was properly before the court, for such amended petition was a part of this case. It was not necessary that this pleading be introduced in evidence; it was a part of the action, and the trial court could consider the allegation as to residence in connection with the admission as to residence contained in the cross-petition.

Proof as to the residential requirement of Mr. Payer having been established, it was proper thereafter for her to proceed to the merits of her cross-petition for alimony, custody, support of minor children, and related matters therein contained. See: 89 A. L. R. 1209, and authorities there cited.

We find no error prejudicial to the rights of Mr. Payer in the matter of proof of residence, or in the proceedings by the trial court thereafter as to the merits of the case.

We have examined all the claimed errors, and find none prejudicial to the substantial rights of the appellant.

Judgment affirmed.

STEVENS, PJ, DOYLE, J, concur.


source: Caselaw Access Project

author: By DOYLE, J:

license: Public Domain

text:
    COPPERMAN, Plaintiff-Appellee, v. BROOKS, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23651.
    Decided March 14, 1956.
    Stephen M. Young, Young & Young, for plaintiff-appellee.
    McConnell, Blackmore, Cory, Burke & Kundtz, Frank Seth Hurd, of Counsel, for defendant-appellant.
    (STEVENS, PJ, HUNSICKER and DOYLE, JJ, of the Ninth District, sitting by designation in the Eighth District.)
   OPINION

By DOYLE, J:

An appeal on questions of law was taken to this Court from a judgment of the Court of Common Pleas of Cuyahoga County which granted a motion for new trial pursuant to the rendition of a judgment for the defendant upon the verdict of a jury. The new trial was granted for the reason that the judgment is not sustained by sufficient evidence and is contrary to law.

The sole assignment oí error is in the following words: “The trial court committed error prejudicial to the rights of the defendant in entering an order granting plaintiff’s motion for new trial.”

At the threshold of a consideration of the claimed error, we are confronted with the four to three decision of the Supreme Court of Ohio in Green v. Acacia Mutual Life Insurance Co., 156 Oh St 1. The fourth syllabus reads:

“An order granting a new trial upon motion made in accordance with §11578 GC, is not a final determination of the rights of the parties and does not constitute a judgment or final order, the General Assembly has no power or authority to provide for an appeal from such order, and §12223-2 GC, providing that ‘an order vacating or setting aside a judgment and ordering a new trial, is a final order,’ is in conflict with §6, Article IV of the Ohio Constitution.”

Bound as we are by this rule of law, the granting of the motion for new trial in the case now before us does not constitute a final order from which an appeal can be taken unless by the granting thereof, the court abused its discretion. “The meaning of the term ‘abuse of discretion’ in relation to the granting of a motion for new trial connotes more than an error of law or of judgment; it implies an unreasonable, arbitrary or unconscionable attitude on the part of the court.” Steiner v. Custer, 137 Oh St 448. See also Grosser, Admrx v. Armet Alloys, Inc., 70 Abs 161.

In our consideration of the record before us, we find no abuse of discretion, as that term is used in law, with which the trial court may be charged when it granted the motion for new trial.

.We, therefore, must and do find that the appeal should be dismissed because it does not stem from a final order.

It may well be that in this case or in another, raising the same question, the Supreme Court will reverse its ruling in Green v. Acacia Mutual Life Ins. Co., supra. (The personnel of the Court is now changed and one of the judges who voted with the majority later commented in Gray v. Municipal Ry. Co., 160 Oh St 511:

“It is my opinion that the granting of the motion for new trial was a final and appealable order, notwithstanding the Green case. This statement is made with full consciousness that I concurred in the Green case, but I no longer approve of the reasoning or judgment therein.”)

We are not called upon, however, to guess future rulings of that Court and to hope that we may guess right, since the ruling in this case, the Legislature has re-enacted in identical language the statute declared unconstitutional and it is the re-enacted statute, §2502.02 R. C. (formerly §12223-2 GC) with which we are here concerned.

The appeal will be dismissed.

STEVENS, PJ, HUNSICKER, J, concur.


author: By ZIEGEL, J.

text:
    YOUNG, Estate of, In re.
    Probate Court, Butler County.
    No. 28966.
    Decided July 25, 1956.
    J. Joseph Marr, Hamilton, administrator and attorney for himself.
    C. William O’Neill, Atty. Geni., Columbus, by William G. Lavell, Asst. Atty. Geni., for the Division of Aid for the Aged.
    (ZIEGEL, J., Probate Judge of Preble County, sitting by assignment.)
   OPINION

By ZIEGEL, J.

This case arises under the provisions of §2117.15 R. C., which provides that “if it appears at any time that the estate is insolvent, the executor or administrator may report that fact to the court and apply for any order that he deems necessary in connection therewith.” The estate of the above named decedent is insolvent, and the administrator thereof seeks appropriate instructions.

The decedent during his lifetime was a recipient of aid for the aged. The claim of that Division of -the Ohio Department of Public Welfare greatly exceeds the total assets of his estate, and is the principal reason for the insolvency of the estate. See. 5105.13 R. C. provides, inter alia, that:

. Such claim shall have priority over all unsecured claims, except a sum for the payment of the funeral and burial expenses of the person, which sum shall be computed by deducting from three hundred dollars whatever amount the division of aid for the aged has extended for the same purpose from the proceeds of other property or insurance which the recipient trusteed to the division, costs of administration, taxes .... costs of last illness . . . .”

Controversy exists between Brown, Dawson Funeral Home and the Division of Aid. The Funeral Home expended more than $300.00 in preparing the body for burial. In addition it advanced the sum of $109.57 for the acquisition of and the opening of a grave in a public cemetery. The Division of Aid for the Aged, represented by the Attorney General of Ohio, contends that under the statute the $300.00 is all inclusive. The Administrator submits that the phrase “funeral and burial expenses” does not cover the acquisition of a grave, and that therefore this expenditure should be considered a separate item for which the Funeral Home should be reimbursed in priority. His principal argument in support of this contention is based on §2117.25 (B) R. C., which gives a funeral director a priority to the extent of $350.00 “and such funeral expenses other than the bill of the funeral director as are approved by the Probate Court.” Sec. 2117.25 (B) R. C., is a general statute covering the administration of estates generally. On the other hand, §5105.13 R. C., is a specific statute covering only the administration of estates in which a claim of the Division of Aid for the Aged is involved. It is well settled that “a special statute covering a particular subject-matter must be read as an exception to a statute covering the same and other subjects in general terms.” State, ex rel. Stettler v. Zangerle, Auditor, 100 Oh St 414, 126 N. E. 413. Sec. 2117.25 (B) R. C. is, therefore, not applicable to the present situation.

Since it has been determined that §2117.25 (B) R. C., does not apply to this case, it makes no difference to the administrator’s contention from a dollar and cents point of view whether the acquisition of a grave is included in the term “funeral and burial expenses” or not. If it is included, then the $300.00 covers everything the Funeral Home did. If it is not included, then the Funeral Home is entitled to priority of $300.00 for the preparation of the body for burial, and is a general creditor for the balance of its claim, including the acquisition of a grave. Since the claim of the Division of Aid for the Aged, which is a priority claim, exceeds the assets of this estate, there is nothing left with which to pay general creditors. The most the Funeral Home can receive from this estate is $300.00.

The assets of this insolvent estate should, therefore, be paid out as follows:

(a) Costs of administration, including:

Costs of estate of James Young, Deceased $49.58

Costs of guardianship of James Young 19.87

Administrator and attorney compensation 150.00

$219.45

(b) Expenses of last illness, as follows:

Dr. H. A. Long, Hamilton, Ohio $ 10.00

Dr. Erich W. Riggel, Hamilton, Ohio 16.00

Mercy Hospital, Hamilton, Ohio 154.95

$180.95

(c) Funeral and burial expenses, Brown-Dawson Funeral Home $300.00

(d) Balance of estate to the Division of Aid for the Aged, Department of Public Welfare, State of Ohio.


author: By THE COURT.

text:
    THOMAS, In re.
    Ohio Appeals, Second District, Franklin County.
    No. 5247.
    Decided April 19, 1955.
    Edwin M. Tuttle, Columbus, for appellant, May T. Hrobon.
    John H. Summers, Columbus, for Harry B. Holmes, Trustee.
    Wright, Harlor, Purpus, Morris & Arnold, Columbus, for appellees, Ray G. Thomas and Millie K. Lester.
   OPINION

By THE COURT.

Submitted on motion of the appellee seeking an order. dismissing the appeal upon the following grounds:

1. The appellant has not filed with the clerk of this Court her bill of exceptions, her assignment of errors, or her brief; and

2. The order from which the appeal has been taken is not a final order.

The record reveals that the appeal is on questions of law, that the same was filed on February 1, 1955, and nothing further has been filed to this date, to wit: April 12, 1955. The first branch of the motion is well taken.

As to the second branch, the record reveals the order appealed from is one overruling a motion to vacate an order designating a member of the Common Pleas Court to act as Probate Judge and hear the pending matter before the Court. This is not a final order but merely an interlocutory one.

The motion will be sustained on both grounds.

MILLER, PJ, HORNBECK and WISEMAN, JJ, concur.


author: By DRAPER, J.

text:
    KREUTZ, Plaintiff, v. LAUDERBAUGH et, Defendants.
    Common Pleas Court, Franklin County.
    No. 194948.
    Decided May 25, 1956.
    Jack R. Alton, Columbus, for plaintiff.
    Otis Buchanan, Columbus, for Thelma Brown.
    Wilson & Rector, Columbus, Harrison Smith, Jr., for William Blessing and NYC Railroad Company.
    Samuel L. Devine, Pros. Atty., Albert E. Giles, Asst. Pros. Atty., for County Commissioners.
   OPINION

By DRAPER, J.

In providing for Rural Zoning, Chapter 303 R. C. (formerly Chapter 0 GC) provides a method for the establishment of an overall plan of zoning for the unincorporated area of the county. That Chapter of the Code also provides methods for amending or supplementing the overall plan.

These statutes provide that amendments, or supplements, may be initiated either (a) by a resolution of the County Commissioners, or (b) by a petition signed by a number of voters (8% of those voting for governor) of the area affected. After the initiation, certain other procedural steps are provided for by the statutes.

Unless there has been a literal compliance with these statutes as to the initiation of the proposed amendment, or supplement, a purported amendment, or supplement, of an overall plan for zoning is illegal and void.

This case comes into this court upon a petition in appeal and stipulation of facts from the approval of rezoning by the Board of County Commissioners of a 380.737 acre tract in Truro Township, Franklin County, Ohio, from residential and agricultural to heavy industry.

William E. Blessing, Jeannette M. Blessing, The New York Central Railroad Company, Adam Petzinger, Catherine Petzinger, Emmett F. Gornall, Mabel B. Gornall, Dora L. Schleppi, K. & T. Realty Co., Florence L. Beck, and Thelma Brown on October 21, 1955, made an application to the Franklin County Rural Zoning Commission to rezone certain property from residential and agricultural to heavy industry. Said application was set for hearing before the Franklin County Rural Zoning Commission on December 21, 1955, and advertised as prescribed by law. The Zoning Commission unanimously approved the said application. It was then referred to the Regional Planning Commission and on January 6, 1956, the Regional Planning Commission voted to return said application to the Rural Zoning Commission for another hearing which was set for February 16, 1956, and was advertised as prescribed by law.

On this hearing the Rural Zoning Commission unanimously approved the application. Said application was then certified to the Board of Franklin County Commissioners of Franklin County, Ohio, on February 17, 1956, who set the application for hearing on the 23rd day of March, 1956. The said hearing was advertised as prescribed by law. Said hearing was held on March 23, 1956, and at said hearing the County Commissioners by resolution voted unanimously to affirm the action of the Rural Zoning Commission.

A petition in appeal was filed within time and under and by virtue of the statutes prescribed for such appeals.

The principal point raised by the petitioner is that the Board failed to comply with the law in amending said zoning resolution.

This point involves the interpretation of Chapter 303 R. C. (formerly Chapter 6 GC), entitled: “County Rural Zoning.” Sec. 303.02 R. C. (formerly §3180-1 GC) is as follows:

“County commissioners may regulate building and land use in unincorporated territory; division of unincorporated territory into districts or zones; uniform regulations. (Sec. 3180-1 GC.)
“The board of county commissioners may regulate by resolution the location, height, bulk, number of stories, and size of buildings and other structures, including tents, cabins, and trailer coaches, percentages of lot areas which may be occupied, set back building lines, sizes of yards, courts, and other open spaces, the density of population, the uses of buildings and other structures including tents, cabins, and trailer coaches and the uses of land for trade, industry, residence, recreation, or other purposes in the unincorporated territory of such county, and for such purposes may divide all or any part of the unincorporated territory of the county into districts or zones of such number, shape, and area as the board determines. All such regulations shall be uniform, for each class or kind of building or other structure or use, throughout any district or zone, but the regulations in one district or zone may differ from those in other districts or zones.”

This statute was passed for the purpose of avoiding spot zoning without a compliance with the statutes provided for such purposes and to set up a uniform or overall zoning of the unincorporated area for the purpose of future planning within the boundaries of the county. We might say that this statute was passed so that the average citizen would be able by looking at said plan to determine where he might build a residence, industry, a supermarket or any other business. It is our feeling that the Legislature had in mind in the passing of these laws the protection of each citizen in the possession and use of his land from interference and also to provide industrial and commercial sites which would not interfere with or detract from sites zoned for residences.

We seem to have forgotten in our mad scramble for material possessions, that progress is not simply the erection of factories but is also the providing of wholesome neighborhoods where people may live as human beings and rear their children in an atmosphere conducive to their advancement and welfare. This is the background and the purpose of these statutes relating to county rural zoning.

Sec. 303.03 R. C. (formerly §3180-2 GC) is the method which the Board of County Commissioners must pursue in order to avail itself of the powers conferred in §303.02 R. C. (§3180-1 GC). This method of procedure is two-fold; one is by resolution and the other is by petition signed by 8% of the voters residing in the unincorporated area, said percentage based upon the total vote cast for all candidates for governor at the last preceding general election. The County Commissioners of Franklin County complied with this section (formerly §3180-2 GC), and adopted a plan of zoning as set forth in §303.02 through §303.11 R. C. (formerly §3180-1 to §3180-11 GC). This then becomes a binding obligation on the County Commissioners not to amend or supplement, unless there is a compliance with the statutes relating thereto

Sec. 303.12 R. C. (§3180-11 GC) relates to the amendments or supplements to the Zoning Resolution. This statute is the one with which we are faced in the present matter as to what it means and what jurisdictional procedure it sets out. It reads as follows:

“Amendments or supplements to the zoning resolution may be made as provided by §303.01 to §303.11, inclusive, R. C. * * *”

We feel that the language is clear and that the terms, amendments or supplements deal with the original plan of zoning as adopted by the County Commissioners and that any change that is intended to be made in the zoning in any of the unincorporated areas must be done on the same basis as set forth in §303.03 R. C. (§3180-2 GC); that is, it contemplates a change not of the particular area asked to be rezoned alone, but as the statute (§303.12 R. C.) reads, it must take into consideration its relationships and effect to overall plans, which would then be an amendment or a supplement to the original overall plan; further, the adoption of the resolution to amend or supplement must be made to the original resolution and plan, designating the changes which are currently contemplated by the amendment or supplement and any attempt to delegate to the Rural Zoning Commission the right to rezone, amend or supplement the original plan is not in compliance with §303.03 R. C. (§3180-2 GC) and is contrary to law.

County Rural Zoning Commission as referred to in §303.04 R. C. (§3180-3 GC), and its duties as set forth in §303.05 R. C. (§3180-4 GC), is a recommending body who recommends to the Board of County Commissioners plans for the carrying out by the Board of County Commissioners the powers, purposes and provisions as set forth in §303.01 R. C. (§3180-1 GC) to §303.25 R. C. (§3180-25 GC), and is not a separate and distinct commission with the right to rezone particular areas as separate transactions. These statutes, §303.04 R. C. (§3180-3 GC) through §303.11 R. C. (§3180-10 GC), are for the purpose of carrying out the provisions of §303.02 (§3180-1 GC) and §303.03 R. C. (§3180-3 GC), in the adoption of the overall plan for unincorporated areas and once the overall plan is adopted, they are then relegated, before making any changes in them, to §303.12 R. C. (§3180-11 GC), which means a new resolution, for the change in the plan followed by the hearings and recommendations as set forth in §303.04 R. C. (§3180-3 GC) through §303.11 R. C. (§3180-10 GC).

Sec. 303.13 R. C. (§3180-12 GC), setting up the County Board of Zoning appeals and §303.14 R. C. (§3180-13 GC), setting forth their powers, relate to the original resolution and the resolutions to amend or supplement. These sections set forth the method of appeal and set forth the procedure to hear and decide appeals and to make such changes as the powers granted in §303.14 R. C. (§3180-13 GC), grant them in relation to the original resolution and the resolutions to amend or supplement. Sec. 303.25 R. C. (§3180-25 GC), sets forth the method by which county zoning may be repealed within a township and again we see that it must be by resolution or by a petition, signed by the necessary number of qualified voters.

In view of these statutes which specifically lay down the rules for county rural zoning, the County Commissioners did not meet the statutory requirements and therefore the attempt to rezone this particular parcel of real estate is contrary to law and the rezoning made herein was unlawful.

In view of our decision with reference to the first point of the petition on appeal, we do not think it is necessary to determine whether the County Commissioners are necessary parties or whether the fact that annexation was granted by the County Commissioners before the adoption of the rezoning makes this rezoning a moot question.


author: By HORNBECK, J.

text:
    MOORE, Plaintiff-Appellee, v. COLUMBUS (City), Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 5363.
    Decided February 21, 1956.
    Bradley & Weisberg, Columbus.
    Chalmers P. Wylie, City Atty., Bernard T. Chupka Asst. City Atty., Columbus.
    (CONN, J, of the Sixth District, sitting by designation in the Second District.)
   OPINION

By HORNBECK, J.

This is an appeal from a judgment in behalf of the plaintiff on her action for damages for personal injuries suffered by her while riding as a passenger in the automobile of her husband. The case was tried to a judge, jury having been waived. Issues were drawn upon the fourth amended petition, defendant’s second amended answer and reply thereto. At the conclusion of the trial, the court rendered its decision and thereafter, upon request, made separate findings of fact and conclusions of law.

The negligence which plaintiff pleads as constituting a nuisance and the violation on the part of the city of the obligation of §723.01 R. C., at the time of the trial §3714 GC, namely, to keep its streets open, in repair and free from nuisance, is:

1. In failing and neglecting to erect a barrier, fence or other protective device to protect travelers upon said South Hague Ave., from the precipice at the southerly end of the paving of South Hague Ave., when the defendant knew, or by the exercise of ordinary care and caution, should have known that said precipice existed.

2. In failing and neglecting to maintain a sign ,or other warning device at the termination of said paving in such condition that it could be seen by users of said South Tague Avenue, when the defendant knew, or by the exercise of ordinary care and caution, should have known of the condition of the sign described above.

Five errors are assigned: The first two are directed to the action of the trial judge in overruling defendant’s motion for judgment on the pleadings and opening statement of counsel for plaintiff and in overruling defendant’s motion to dismiss at the close of defendant’s evidence.

The third is that the Court erred in its conclusion of law No. 6. The fourth is that the verdict and judgment are against the weight of the evidence and the fifth, other errors apparent on the record.

The separate findings of fact and conclusions of law fully comprehend all of the issues joined between the parties. We will refer to such of them as we feel properly present the facts and law necessary to an appreciation of the assignments of error.

After formal findings of fact, the court found:

Three, that the paving of South Hague Avenue in a duly dedicated street of the City of Columbus, on October 1, 1950, at about 1:30 a. m. when the accident occurred in which plaintiff was injured, terminated at a point approximately 735 feet south of the intersection of Vanderberg Street and South Hague Avenue.

Four, that at the time and place referred to in plaintiff’s petition, the paving of South Hague Avenue terminated at the top of a ditch, approximately five feet in depth from street grade level to the bottom thereof, with the sides of said ditch sloping north and south on an angle of approximately 45 degrees.

Five, that the ditch was not, at the time of the accident, guarded with a barricade or other protective device, and that it had been so unguarded and unprotected since September 8, 1949.

Six, that at a point immediately south of the termination of said pavement of South Hague Avenue, there was, at the time referred to in plaintiff’s petition, a sign bearing the painted words “Dead End,” and a round reflector attached to a steel post implanted in the earth. Said sign post was in a position on an angle of approximately 45 degrees grade level of said South Hague Avenue, sloping in a southerly direction away from the paving of South Hague Avenue; that said slope of said sign had existed for a period of two weeks prior to October 1, 1950.

Seven, on October 1, 1950, at a point west of the west curb line of South Hague Avenue, and south of the intersection of West Mound Street and South Hague Avenue, there was a painted sign bearing the words “Dead End,” attached to a steel post implanted in the ground.

Eight. At about 1:30 a. m., October 1, 1950, there was some fog present at ground level in the general vicinity of the end of the pavement of South Hague Avenue.

Nine. That on October 1, 1950, at about 1:30 a. m., plaintiff was a passenger in a 1934 Coupe automobile, with the driver of said automobile and another passenger.

Ten, that said automobile went beyond the end of the paving of South Hague Avenue and into the said ditch with the said automobile coming to rest at the bottom of said ditch and with the rear wheels thereof approximately one foot beyond the termination of said pavement of South Hague Avenue.

Eleven, that the plaintiff, in said automobile, was thrown forward with much of her body being thrown onto the floor of and under the dashboard of said automobile.

Twelve, that the plaintiff was thereby injured in the particulars set out in the finding.

Thirteen, that the conditions at the south end of South Hague Avenue described above had existed for a sufficient length of time to charge the City of Columbus with notice of said conditions.

Fourteen, that the situation obtaining on October 1, 1950, at the southern terminus of South Hague Avenue presented such an imminent danger to travelers on South Hague Avenue in the exercise of ordinary care, so as to require the city to erect a barrier, barricade or other protective device to protect the public from going over the said embankment and into the five foot ditch.

Fifteen, from the photographs admitted into evidence by stipulation, the sign at the end of South Hague Avenue in its bent condition did not give adequate warning to a traveler in the night season on. South Hague Avenue.

Sixteen, that the “Dead End” sign in existence on October 1, 1950, did not give sufficient warning to travelers in exercising ordinary care to protect them from the dangers of going over the said embankment or give warning of the existence of said embankment.

Seventeen, that the failure of the city to properly and adequately warn travelers of and to protect travelers from the dangerous condition of the southern terminus of South Hague Avenue on October 1, 1950, constituted a negligent nuisance on a street within the corporate limits of the City of Columbus, Ohio,

Eighteen, that the said nuisance was a direct and proximate cause of the injuries sustained by the plaintiff referred to above.

Nineteen, that although the driver of the automobile of which plaintiff was a passenger had consumed some beer he was not at the time and place of the accident under the influence of intoxicating liquor, so as to put the plaintiff on notice as to any danger to herself.

Twenty, and that under the circumstances plaintiff was not guilty of contributory negligence and the pertinent conclusions of law were that the testimony required the trier of the facts to determine whether or not the existence of the deep ditch at the end of South Hague Avenue theretofore described, constituted such a danger to travelers on that avenue as to require the city, in the exercise of reasonable care, to erect a barrier, barricade or other protective device to protect travelers from the danger of going over the embankment and likewise the existence of the “Dead End” sign and its condition, as admitted at the time of the accident, required the trier of the facts to determine if the sign provided sufficient warning of dangerous condition to protect the public. That negligence, if any, of the driver, by reason of the fact there were three persons riding in the front seat did not present sufficient facts upon which to base a finding of contributory negligence on the part of the plaintiff nor did the assured clear distance ahead statute, obligatory on defendant’s driver to observe, disclose contributory negligence on the part of the plaintiff passenger to whom the negligence of the driver could not be imputed.

The sixth conclusion of law is:

“The sign bearing the words ‘Dead End’ which, by the evidence, were in place on or near South Hague Avenue, at 1:30 a. m., October 1, 1950, are not properly characterized as being within the Governmental functions of the City, however, even if the maintenance of these signs was within the Governmental function of the defendant, the absence of barricade, barrier, or other protective devices, by itself, constituted a sufficient nuisance on which to base plaintiff’s claim.”

The findings of fact in all particulars are in accord with the theory of the plaintiff as pleaded in her fourth amended petition and developed by her evidence. Manifestly, the trial judge, sitting as a jury, had the obligation and the right to make determination of such of the facts as were controverted. Most of the material facts were stipulated. In our judgment the conclusions of law were sound. The law of this case is controlled by the second syllabus of The Village of Mineral City v. Gilbow et al, 81 Oh St 263:

“In determining whether it is necessary, in a particular case, that a barrier should be erected in order to make the highway safe for travelers thereon, the true test is not the distance from the highway of the dangerous object or place, whether it be much or little; but whether a traveler in passing along the highway and exercising ordinary care, would be subjected to such imminent danger that it would require a barrier to make the highway safe.”

To like effect, Bordeau v. The City of Toledo, 55 Oh Ap 478, 480, 24 Abs 384; City of Struthers v. Clay, 13 Abs 97, 100; Wickham v. Upper Arlington, 39 Abs 163, first headnote.

In this case, the ditch began where the highway terminated.

The city depends somewhat upon Koehler v. City of Cincinnati, 143 Oh St 426, and particularly, the quotation which Judge Hart employed from Hayes v. Brooklyn Heights Ry. Co., 63 N. E. 469.

We find nothing in this quotation which in any wise conflicts with any principle of law applied by the trial judge in the instant cause. Judge Hart, at the bottom of page 446, states the rule of interpretation of §3714 GC, and says that, it:

“Provides a general rule of conduct and makes negligence the basis of liability for its violation, unless an absolute nuisance is proven to exist.

“The rule in this respect summarized from the cases decided by the court of this state, is stated in 28 O. Jur. p. 976, Sec. 613, as follows:

“The duty resting upon municipal corporations, under §3714 GC, to keep their streets and other public ways ‘open, in repair, and free from nuisance,’ requires reasonable care and vigilance, in view of all the surroundings, to keep such streets and ways in a reasonably safe condition for travel in the usual and ordinary modes, but does not exact that which is impracticable. They are not insurers of the safety of their public ways, and are liable only for negligence in failing to repair, remove or guard against defects or obstructions, after actual or construcive notice of their existence.”

Judge Hart says nothing in the opinion of this case which conflicts with the holding in The Village of Mineral City v. Gilbow, supra, and no purpose to reverse this case is disclosed.

Appellant urges that the erection of the sign at the end of South Hague Avenue near which the accident occurred was purely a governmental function of the municipality and that the failure to maintain or repair the sign was such a function and could not be the basis of the finding of negligence against the city or of the creation of a nuisance.

Conclusion of law No. 6, in conjunction with the findings of fact says that the erection of the sign, “Dead End” near the end of South Hague Avenue is not properly characterized as a governmental function but that, if it were, the absence of barricade, barrier or other protective devices, by itself, constituted a nuisance on which plaintiff could properly base her claim.

The condition of the sign bent away from the direction in which the driver of the automobile was moving, as it was, permitted the finding that it did not inform the driver that he was approaching the dead end street. In our judgment, such a sign, if functioning, was intended to and would serve as a warning and also secondarily to direct traffic. Its condition and position on the night of the accident precluded its serving its purpose in either respect and in connection with the other physical facts was properly considered as related to a violation of §3714 GC.

Tolliver v. Newark, 145 Oh St 517, cited by appellant, differs from this case in that plaintiff there relied entirely upon the alleged unauthorized erection of certain stop signs, clearly to be employed for the purposes of traffic control, a governmental function, as constituting a nuisance.

Attention is directed by appellant to §5111.01 R. C. classifying signs along with other traffic control devices, if intended among other things, for warning signals The presence of the bent sign, if nothing more, was a part of the physical situation which, in its entirety, the trial judge found to constitute a nuisance. In that conclusion we are satisfied no error was committed.

We have carefully considered the extensive briefs of counsel wherein, very properly, cases are cited relative to all aspects of the case but we feel that no good purpose would be served by discussing the authorities more at length.

There was a material issue whether or not plaintiff’s driver was under the influence of intoxicating liquor when the accident occurred; also whether the fact that there were three persons riding in the front seat of the automobile was negligence. The proof did not rise to a degree which required the trial judge to say that either condition was negligence or, if so, that it was the sole proximate cause of the accident and the injuries to the plaintiff or that the plaintiff was contributorily negligent.

We find no error assigned well made. The judgment is affirmed.

MILLER, PJ, CONN, J, concur.


author: By BARTLETT, J.

text:
    KOSTECKI, d. b. a. BILL’S BAR, Appellant, v. BOARD OF LIQUOR CONTROL, etc., Appellee.
    Common Pleas Court, Franklin County.
    No. 195143.
    Decided November 9, 1956.

      John T. Feighan, Cleveland, for appellant.
    Hon. C. William O’Neill, S. Noel Melvin, Asst. Atty. Geni., Columbus, for appellee.
   OPINION

By BARTLETT, J.

BOARD OF LIQUOR CONTROL ORDER (SUSPENDING APPELLANT’S D-5 PERMIT), REVERSED.

This is an appeal under §119.12 R. C., seeking a reversal of an order of the Board of Liquor Control, suspending appellant’s D-5 permit.

There was no direct evidence submitted at the hearing before the Board as to a sale of intoxicating liquor. The permit holder testified only 3.2 beer was sold on the day in question, which was stipulated and agreed to be special election day in Cleveland. The only other witnesses were two Cleveland police officers. They admitted they saw no sales made. They testified there were nine patrons at the bar, but no beverages were consumed in their presence.

The corpus delicti of the alleged offense was not established. The permit holder should not be required to answer a complaint against him, in the absence of evidence sufficient to establish the corpus delicti, 12 O. Jur. Sec. 295, p. 300.

The officers were permitted to testify as to what the Appellant said, a substantial part of which was expressly denied by the appellant, permit holder. Extra Judicial confessions are not competent to prove the body of the offense. 12 O. Jur. Sec. 341, p. 448.

An alleged exhibit “F” was offered in evidence, without any identification whatever, in fact even counsel for the Department of Liquor Control never referred to this exhibit, except to offer it in evidence along with other exhibits. Exhibit “F” purports to be an affidavit by one Howard C. Prisk, “Chief Chemist” being his only identification, on a form with the heading “Department of Liquor Control.” The form affidavit shows the specimens in question were received, 2-24-56, yet the record shows the officers raided the permit premises, on 2-7-56 and then took the specimens directly that day to the City Chemist at the City Hall in Cleveland. There is no evidence even that Howard C. Prisk was the City Chemist to whom the officers delivered the specimens.

Sec. 2319.03 R. C. (§11523 GC), expressly provides in what cases, such an affidavit may be used. Gibberman, in re (Fed) 28 L. R. 215, 219; and certainly this hearing before the Board of Liquor Control on a complaint charging a violation of the liquor laws does not fall within the orbit permitting the use of such an affidavit.

Section 10, Article I of the Ohio Constitution, enumerating our Bill of Rights, provides among other things as follows:

“In any trial, in any court, the party accused shall be allowed to appear and defend in person and with counsel; * * * to meet the witnesses face to face, * *

It is important that the traffic in intoxicating liquors be strictly regulated; yet we must not forget that we are not living in a Police State, but under a constitutional form of government, including a Bill of Rights, sacred to all of us. It is very dangerous to ignore those rights in any legal forum.

The evidence produced, upon a consideration of the entire record, does not warrant a finding by this court that the order of the Board is supported by reliable, probative and substantial evidence and is in accordance with law; and, therefore, the order of the Board is reversed and the appeal affirmed. Entry accordingly with exceptions by counsel for the Board.


author: By THE COURT:

text:
    FORTNER, Plaintiff-Appellant, v. ADAMS et, Defendants-Appellees.
    Ohio Appeals, Second District, Montgomery County.
    No. 2290.
    Decided August 9, 1954.
    Otterbein Creager, Dayton, for plaintiff-appellant.
    Webb R. Clark, Dayton, for defendants-appellees.
   OPINION

By THE COURT:

Submitted on motions of defendants-appellees to strike the bill of exceptions from the files and to dismiss the appeal.

This is an appeal on questions of law. The bill of exceptions was not filed within forty days after final entry was journalized in the trial court, to conform to the provisions of §2321.05 R. C. The motion to strike the bill of exceptions will be sustained.

The defendants-appellees move to dismiss the appeal on the ground that the errors assigned are such as can be disclosed only by a bill of exceptions. We have examined the errors assigned, together with the brief of counsel for the plaintiff-appellant, and find that the bill of exceptions would be required to support the three errors assigned.

In Tenesy v. City of Cleveland, 133 Oh St 251, it was held that: “Where such bill of exceptions is not filed in the trial court within the time so prescribed, and the errors assigned are such as can be disclosed only by a bill of exceptions, the reviewing court has no alternative but to affirm the judgment.”

An entry may be drawn striking the bill and affirming the judgment.

WISEMAN, PJ, MILLER and HORNBECK, JJ, concur.


author: Per CURIAM. By NICHOLS, J.

text:
    McRAE, Plaintiff-Appellant, v. LESLIE, Jr., a Minor et, Defendants-Appellees. McNALLY, Plaintiff-Appellee, v. McRAE, a Minor et, Defendants-Appellants.
    Ohio Appeals, Seventh District, Mahoning County.
    Nos. 3782, 3783.
    Decided April 13, 1955.
    Andrew L. Johnson, Youngstown, for plaintiff-appellant, Raymond McRae.
    John J. Lynch, Jr., Youngstown, for appellee, John K. McNally.
    William E. Pfau, William E. Pfau, Jr., Youngstown, for appellees, James D. Leslie, Jr., and James D. Leslie, Sr.
   OPINION

Per CURIAM.

The cases we review being numbered 189388 and 189522 on the docket of the Municipal Court of Youngstown, and 3783 and 3782 respectively on the docket of this court, were tried and submitted to a judge of that court jointly. In case number 189368 the trial judge rendered judgment for plaintiff, John K. McNally, against defendant, Raymond McRae, Sr. In case number 189522 the trial judge rendered judgment against Raymond McRae in favor of defendants, James Leslie, Jr., and James Leslie, Sr„ and John K. McNally.

Raymond McRae, plaintiff-appellant in case number 3782 and defendant-appellant in case number 3783, appealed from the judgment Of the Municipal Court of Youngstown on questions of law.

By agreement of counsel, with the consent of this court, the cases were:—

“* * * appealed to this court on questions of law as shown by the transcripts of the records and the joint amended separate findings of fact and conclusions of law of the trial court; and for other good and sufficient cause, the parties in the above entitled actions are hereby authorized to and may file one assignment of error, one brief, one answer brief and one reply brief, respectively, which shall be filed, considered, treated, used and submitted to this court in both of the above entitled actions for all intents, uses and purposes.”

No bill of exceptions was submitted to this court, and since, as indicated supra, the parties stipulated that the cases “are appealed to this court on questions of law as shown by the transcripts of the records and the joint amended separate findings of fact and conclusions of law of the trial court” we adopt the following amended findings of fact and conclusions of law of the trial judge made upon request of Raymond McRae, Sr., and in accordance with the provisions of §2315.22 R. C. (§11421-2 GC), as the factual statement of this opinion:—

“These cases were actions filed by Raymond McRae and John K. McNally, each of whom were the owners of cars involved in a collision on December 21, 1952 on Wick Avenue in the City of Youngstown. In each case these owners sought to recover for damages to their respective cars. Upon motion of the plaintiff in case No. 189522, James D. Leslie, Sr. was added as a Party Defendant.
“By agreement of the parties, the cases were tried jointly. On October 18, 1954 this court rendered judgment for the defendants in case No. 189522 and in case No. 189368, he rendered judgment for the plaintiff versus the defendant, Raymond McRae in the sum of One Hundred Nineteen and 45/100 ($119.45) Dollars and costs.
“Raymond McRae filed a motion in both cases for a separate finding of fact and conclusion of law. The court makes such finding of fact and conclusions of law as follows.

Finding of Fact

“Upon a consideration of the evidence in these cases, the court finds the following operative facts. On the 21st day of December, 1952, the plaintiff Raymond McRae in Case No. 189522 was the owner of a 1946 Chevrolet automobile and the plaintiff John K. McNally in Case No. 189368 was the owner of a 1951 Studebaker four door sedan. Prior to December 21, 1952, the plaintiff had placed his said automobile in the custody, care and control of James D. Leslie, Sr.; that on the day of this accident the said James D. Leslie, Sr. had allowed and permitted his minor son, James D. Leslie, Jr, to use and operate his automobile in helping his other minor son, Edward Leslie, to deliver newspapers and at the time of the collision, the car of John K. McNally was being driven by James D. Leslie, Jr. The car of Raymond McRae was being driven by Robert Bobby McRae, also a minor. At the time of the accident, James D. Leslie, Jr. was 17 years of age, Robert Bobby McRae was 16 years of age. On the day in question at about 7:30 in the morning, James D. Leslie, Jr. was driving the McNally car. He was helping his brother, Edward, deliver newspapers, He had entered Wick Avenue from the west from Spring Street, had made a left turn onto Wick Avenue and was proceeding in a northerly direction on Wick Avenue intending to make a right turn into a driveway at 639 Wick Avenue. It was dark at the time. As he approached 639 Wick Avenue, he was travelling to the right of the center line of Wick Avenue. He slowed the speed of his car to about 5 mph and in slowing the speed of his car the tail lights blinked as the brakes were applied. The driver James D. Leslie, Jr. did not make any hand signal nor did he give a mechanical signal of his intention to turn to the right. As he was about to make the turn, Robert Bobby McRae, driving Raymond McRae’s car, attempted to pass James D. Leslie, Jr. to his right. A collision of the cars occurred. Robert McRae drove over the right curb of Wick Avenue and then came back down onto the pavement. At the time of the collision, Robert McRae was travelling about 25 mph. As a result of this collision, damage occurred to both cars. Robert Bobby McRea, while following James D. Leslie’s car, saw the blinking of the tail lights and he expected James D. Leslie to make a left turn although no signal of a left turn was given. At the point where the accident occurred, Wick Avenue was of sufficient width to permit 3 lanes of traffic; but traffic was not moving in 2 or more substantial continuous lanes in a northerly direction.

“In the cases of both James D. Leslie, Jr. and Robert Bobby McRae, the driver’s licenses were issued to these minors under the provisions of §4507.07 R. C. (§7296-10 GC), and they were obtained by the fathers of these respective minors, James D. Leslie, Sr. and Raymond McRae, signing the applications for licenses.

“In failing to give a proper signal of his intention to make a right turn, James D. Leslie, Jr. was guilty of negligence. In the absence of a signal indicating the making of a left turn, Robert B. McRae was guilty of negligence in attempting to pass James D. Leslie, Jr. on his right. The court finds that the proximate cause of this accident was the negligence of Robert Bobby McRae in attempting to pass James D. Leslie, Jr. to his right. Damages to the McNally car amounted to One Hundred Nineteen and 45/100 Dollars and damages to the McRae car amounted to One Hundred Thirty-Three and 85/100 Dollars.

Conclusions of Law

“Under the provisions of §4511.28 R. C. (§6307-28 GC), the only time an operator of a motor vehicle is authorized to pass another car on the right in the absence of a signal indicating a left turn is when traffic is moving in 4 or more clearly marked lanes or whenever traffic is moving in 2 or more substantially continuous lanes in the same direction.

“Since, under the Fnding of Fact, the proximate cause of the accident was the negligence of Robert McRae in attempting to pass to the right of James D. Leslie, Jr. in violation of §4511.28 R. C., Robert McRae becomes legally liable for the damages to the McNally car.

“Under the provisions of §4507.07 R. C., Raymond McRae, father of Robert Bobby McRae, since he signed the application for the driver’s license of his minor son, who was under 16 at the time, becomes legally liable for his son’s negligence in this situation. Due to the failure of the plaintiff to have a Guardian Ad Litem appointed for the minor defendant Robert Bobby McRae, the court can not legally render judgment against him. Judgment is therefore rendered against Raymond McRae in the sum of One Hundred Nineteen and 45/100 Dollars, being the amount of damages to the McNally car, and costs.”

It is claimed that the trial judge refused to include in his amended findings of fact and conclusions of law items of “operative facts” requested by counsel for Robert McRae. Thereupon he filed the following exceptions to the foregoing findings of fact and conclusions of law of the trial judge:—

“Now comes Raymond McRae, defendant and plaintiff respectively in the above entitled and numbered actions, and hereby enters his exceptions to the court’s findings of fact and conclusions of law and amended findings of fact and conclusions of law rendered in the above entitled and numbered actions, in the following respects:
“1. In finding that it was dark at said time and place of said accident. The fact being that it was either daylight or the street lights were burning, or both.
“2. In finding that traffic was not moving in 2 or more substantial continuous lanes in a northerly direction at said time and place of said accident. The fact being that said James D. Leslie, Jr. was then and there driving said McNally car in the middle lane of traffic about 5 miles per hour and said Robert Bobby McRae was then and there driving said McRae car in the outer and right hand lane of traffic about 25 miles per hour, about parallel with said McNally car, in a northerly direction in and upon said Wick Avenue.
“3. In finding that said Robert Bobby McRae was guilty of negligence in then and there attempting to pass said James D. Leslie, Jr. to his right.
“4. In finding that the proximate cause of said accident was the negligence of said Robert Bobby McRae in attempting to pass said James D. Leslie, Jr. to his right.
“5. The court’s conclusions of law.
“Said Raymond McRae further hereby enters his exceptions to the court’s refusal to consider and include in the court’s aforesaid findings of fact and conclusions of law and amended findings of fact and conclusions of law the following operative facts established by undisputed evidence introduced at the trial of said actions, upon request duly made to do so:
“1. At the time James D. Leslie, Jr. entered Wick Avenue from the west from Spring Street and made a left turn thereon in a northerly direction, he saw the McRae car south of Spring Street about parallel with the Sunoco Gasoline Service Station on the east side and the main office building of Youngstown College on the west side of Wick Avenue, coming in a northerly direction in the right hand lane of travel in and upon Wick Avenue.
“2. James D. Leslie, Jr. then drove the McNally car in a northerly direction on Wick Avenue, with full knowledge that the McRae car was then proceeding in the same direction in the rear of him, until he reached a point about 50 feet from the scene of the accident, at which point he drove over into the middle of the street and proceeded therein until he approached a driveway at 639 Wick Avenue, the scene of the accident. As he was approaching the driveway at 639 Wick Avenue, he slowed the speed of the McNally car to about 5 miles per hour in the middle lane of traffic, and in slowing the speed of the car the tail lights blinked as he applied the brakes of the car, and he then saw the headlights of the McRae car and saw it as it was approaching from behind in the right hand lane of traffic and as it came almost parallel with the McNally car, and at the time James D. Leslie, Jr. started to make the right turn from the middle of Wick Avenue into the driveway at 639 Wick Avenue, the McRae car was two-thirds of the way past the McNally car on the right side, Edward Leslie, who was sitting on right front seat of the McNally car hollered ‘look out,’ and the collision of the two cars occurred by reason of which Robert Bobby McRae swerved the McRae car to the right and its right front wheel went over the right curb of Wick Avenue a:&d then back down onto the pavement.
“3. On December 21, 1952, shortly after the accident occurred, James D. Leslie, Jr. and Robert Bobby McRae made the following reports to the Youngstown Police Department of the accident, respectively:
“ ‘Driver No. 2 (James D. Leslie, Jr.) states he was driving north on Wick Avenue and while making a right turn off Wick into the drive of 639 Wick Avenue Driver No. 1 (Robert Bobby McRae) passed on the right and collision occurred.’
“ ‘Driver No. 1 (Robert Bobby McRae) states he was driving north on Wick Avenue and saw Car No. 2 (James D. Leslie, Jr.) slow down in the middle of the street so he started to pass Car No. 2 on the right. When Car No. 1 was just along side of Car No. 2, Car No. 2 turned right and hit Car No. 1.’
“4. Three or four days after the accident occurred, defendants James D. Leslie, Sr. and James D. Leslie, Jr. took the McNally car to the Underwood Garage, had it repaired at the cost of $119.45 and paid the same.
“5. On January 11, 1954, John K. McNally transferred the title of said Studebaker automobile to James D. Leslie, Sr.”

The trial judge made no ruling on the above quoted exceptions of McRae, Sr.

By assignments of error Raymond McRae contends:—

“1. The trial court erred in refusing to make further and more complete findings of fact as requested by said Raymond McRae in the respects set forth in his exceptions filed in both of said actions, which are hereby attached hereto, made a part hereof, to which reference is hereby made.
“2. The trial court erred in his amended findings of fact and conclusions of law rendered in said actions in the respects set forth in said exceptions of said Raymond McRae, which are hereby attached hereto, made a part hereof, to which reference is hereby made.
‘‘3. The aforesaid judgments of the trial court are not sustained by sufficient evidence, are against the manifest weight of the evidence, and are contrary to law.
“4. The trial court erred in not rendering judgment for the defendant, Raymond McRae, in the aforesaid case of John K. McNally v. Robert Bobby McRae, a minor, and Raymond McRae; and in not rendering judgment for the plaintiff, Raymond McRae, in the aforesaid case of Raymond McRae v. James D. Leslie, Jr., a minor, James D. Leslie, Sr., and John K. McNally.”

By brief counsel for McRae, Sr., and McRae, Jr., states that the “questions presented” are:—

“I. Was Robert Bobby McRae negligent in the operation of Raymond McRae’s Chevrolet Automobile?

II. If Robert Bobby McRae were negligent in the operation of said automobile, was his negligence or the admitted negligence per se of said James D. Leslie, Jr., in the operation of John K. McNally’s Studebaker automobile the proximate cause of said collision and damages?

“III. Or, if Robert Bobby McRae were negligent in the operation of said automobile, was the concurrent and combined negligence of both him and said James D. Leslie, Jr. the proximate cause of said collision and damages?”

In a word, it is the contention of Robert McRae, as shown by oral argument, that “the appeals are principally upon the court’s finding of facts and conclusions of law; that the court’s findings of fact and conclusions of law are erroneous; and that the conclusions of law as applied to the facts as the trial judge found the facts to be are erroneous.”

Obviously in the absence of a bill of exceptions we have no means of knowing whether the facts found by the trial judge are supported by the evidence; nor whether he applied the law properly to the facts as elicited from the mouths of the witnesses, or erroneously applied the law to the facts as he stated them; nor can we determine whether defendant McRae’s Sr., exceptions directed against the trial court’s amended findings of fact and conclusions of law are well taken.

“Error in a finding of fact and as to the law arising upon facts appearing in evidence and in overruling a motion for a new trial predicated upon such supposed error must be shown by a bill of exception.” 3 Oh Jur. (2d), Par. 369, Page 281.

The trial judge found that the operators of both vehicles involved in the collision from which the appeals arise were negligent and that the negligence of McRae, Jr., was the proximate cause of such collision, and rendered his judgment accordingly.

In the cases we review the question of proximate cause was a question for the trial judge as trier of the facts, even though one of the parties was guilty of negligence as a matter of law.

See Smith v. Zone Cabs, 135 Oh St 415, 21 N. E. (2d) 336, where it is said on page 418:—

“The law presumes negligence from appellant’s violation of the ordinance (Schell v. DuBois, Admr., 94 Oh St, 93, 113 N. E., 664, L. R. A. 1917A, 710), but does not, from that presumption alone, presume that such negligence was the proximate cause of his injuries. Although the former is presumed as a matter of law, the latter must be proved as a matter of fact. ‘Proximate cause and negligence are wholly different elements and should not be confused.’ Blackford v. Kaplan, ante, 268 at 273.
“Whether appellant’s negligence was the proximate cause of his injuries is a question which can be determined only from a consideration of all the evidence—a function peculiarly for the jury. Where the state of the evidence is such as to justify different minds in reasonably arriving at different conclusions with respect to that question, or whether it is doubtful whether reasonable minds would or would not differ in the inferences drawn from such evidence, the question remains one for the jury. See Durbin v. Humphrey Co., 133 Oh St 367, 370, 14 N. E. (2d), 5.”

We have considered the assignments of. error and questions presented, the oral argument and briefs of counsel and the law applicable thereto, and find no error committed to the prejudice of appellants warranting this court disturbing the judgment of the trial court, which must be and hereby is affirmed.

PHILLIPS, PJ, GRIFFITH, J, concur.

CONCURRING OPINION

By NICHOLS, J.

In these two cases, which were tried together in the Municipal Court of the City of Youngstown, growing out of a collision of two automobiles on Wick Avenue in that city, the trial judge found the drivers of each automobile to have been negligent, but further found that the negligence of one was the proximate cause of the collision and resulting damages.

In the absence of a bill of exceptions in the trial court we must conclude that the trial court correctly found that the negligence of one such driver was the proximate cause of the collision, and it being the province of the trial court, as the trier of the facts, to so find proximate cause this court can not reverse such judgments but must affirm the same upon authority of Smith v. Zone Cabs, 135 Oh St 415.


text:
    CODOSKY, d. b. a. BUTCH’S PLACE, Appellant, v. STATE, DEPARTMENT OF LIQUOR CONTROL, Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 5281.
    Decided February, 1956.
    H. David Lefkowitz, Cleveland, for appellant.
    C. William O’Neill, Atty. Genl., Kiehner Johnson, S. Noel Melvin, Asst. Attys. Geni., Columbus, for appellee.
    (FESS, J, of the Sixth District, sitting by designation in the Second District.)
   OPINION

By THE COURT.

This is an appeal from an order of the Common Pleas Court affirming an order of the Board of Liquor Control revoking certain permits of appellant to sell beer and wine upon finding that three charges against him were sustained by proper proof under the statute.

All of the acts charged were claimed to have been committed on May 21, 1954. The first was the keeping, exhibiting and possessing about the permit premises of forms, tickets, bowling machine tip tickets, which may or can be used for gaming or wagering, * * * or chances of a contest —in violation of the Liquor Control Act and regulations of the Board of Liquor Control. Second, keeping and possessing in and upon the permit premises spirituous liquor, to wit, Whiskey, while not the holder of a proper permit. Third, having and possessing on the permit premises intoxicating liquor, to wit, whiskey, not purchased from the Department of Liquor Control, or with special consent issued by the Department of Liquor Control.

The evidence before the Board fairly suggested that the Department had withdrawn permittee’s permit to operate under his certificate, although the specific order is not before us, and that his place of business was not open to the public, although there were a few men inside. Permittee claimed that he was preparing to do some painting and that one or more of the men who were to do the painting and were assisting in moving equipment preparatory thereto were in the premises on the date in question. A police officer first went to the rear door of the premises and was not admitted. Later he was admitted as were two inspectors of the Department. The testimony in behalf of the Department offered by the officer only developed that an amber liquid was placed in a glass in front of a man at the bar whom it appears was one Stanley Zupon. The liquid which was served to Zupon was confiscated, analyzed and offered as an exhibit, and the result of the analysis is in the record. It appears that it was in part whiskey which permittee claims Zupon brought onto the premises in the morning of the day in question for his own use and which was served and consumed by him.

Five errors are assigned. Without comment we hold against appellant as to all but the fourth, which is that the court erred in sustaining the order of the Board in refusing to receive testimony in behalf of appellant.

We are agreed that the record made before the Board, certified to the Common Pleas Court, and which is before us, supports the judgment and the finding that the order of the Board was supported by reliable, probative and substantial evidence and is in accordance with law. However, the error assigned by appellant is that he was not permitted to complete his record and that this failure was prejudicial to his defense,

The situation of which complaint is made arose by reason of the fact that three witnesses, presumably in the permit premises when permittee was arrested, were subpoenaed by the permit holder but did not appear on August 5, 1954, the date of the hearing of the charges. After the Department had rested, counsel for permittee moved for dismissal of each and all of the charges against him. These motions were overruled. Thereupon, a member of the Board moved that proceedings in contempt be instituted against the three witnesses who had not appeared in response to subpoenas claimed to have been served upon them. This proposal was approved, whereupon permittee testified. At the conclusion of his cross-examination and testimony, a member of the Board inquired of counsel for permittee, “Have you anything further?” Counsel replied, “No, except I would like the record to show that Frank Lamosek, Stanley Zupon, and Ernest Robinson were subpoenaed. I would like to make a proffer for the record that if Frank Lamosek were here—”

Member of the Board: “Just a minute!”
Counsel for Department: “I’ll object to it.”
Member of the Board: “How can you make a proffer of anybody that isn’t in the Court Room?” “We are going to get him here.”

“Recess the case until after the contempt proceedings are over with.” (Emphasis ours.)

The record discloses that the hearing was then recessed until September 9, 1954, at Cleveland, Ohio, at which time the three persons who had been subpoenaed by permittee were interrogated to determine if they should be cited for contempt. Early in these proceedings, counsel for permittee said, “If it please the Board, it was my understanding the case was recessed, so that if the witnesses could be produced, they could testify.”

One member of the Board then said,

“The reason for it, as far as I’m concerned—may I state this in the record—and I asked the recess to be on my behalf, was because three witnesses were subpoened, and you said you subpoened them, and ‘they aren’t here,’ and I wanted to know why they aren’t here. I want your subpoenas honored. When a permit holder subpoenaes witnesses, I want those witnesses here, or be held in contempt. If they haven’t got a reasonable excuse for not being here, I’m going to ask the Attorney General to institute contempt proceedings in the Common Pleas Court of Cuyahoga County against these witnesses.”
Counsel for permittee: “It was my understanding that we would have an opportunity to testify.”

Thereupon, the three witnesses were interrogated and it appeared that all had been served but each had an excuse for not appearing. No inquiry of them was made or permitted respecting facts relevant to the charges against permittee and at the conclusion of the testimony of the last of these three witnesses, counsel for permittee said: “It is my understanding that I can’t offer any testimony whatsoever.” “Is that correct?”

Member of the Board: “That is correct.”
Counsel for permittee: “Exception.”

In our judgment, the statement of tire jnember of the Board, at the end of the first hearing of the charges against permittee, that the hearing would be recessed was sufficient reason for counsel for permittee to believe that when the proceedings, looking to possible contempt charges against the witnesses, who had not appeared, had been concluded, permittee would have an opportunity to introduce their testimony.

The Board evidently ruled that permittee had rested his case, but the record does not support this conclusion. Permittee could not proffer his testimony because the Board would not permit his witnesses to take the stand.

The denial to permittee of the right to have these witnesses testify, in our judgment, was not only erroneous, but it was prejudicial.

The only witness for the Department who testified on the material matters said that he saw permittee take an empty glass from Zupon, refill it from a bottle, which he described; that there was beer and wine on the premises but no rear room thereto. In stating that there was beer and wine on the premises, it is clear.that the witness did not mean the wine and beer which had been sealed in the back room as appears from page 9 of the record. The other officers did not corroborate the foregoing testimony in any particular and in the main controverted it.

The Department did not claim, and the proof did not establish, that there was more than a small jar into which had been placed a serving of whiskey taken from Mr. Stanley Zupon and another quart jar containing what was designated as about two shots of whiskey. The Common Pleas Court Judge found that permittee had made a sale of the liquor. Permittee denied that he had poured any liquor out of the container or that he had a container such as described by the witnesses for the Department. Although, even under permittee’s testimony, he could properly have been found to possess the whiskey found on his premises, his statement was that his place was not open for business, that the whiskey had been brought to the permit premises by Mr. Zupon from his home for his own use and placed in permittee’s refrigerator, that Zupon poured out and served his own liquor, which, if true, did not constitute a sale.

Charge No. 3, among other things, averred that permittee possessed on the permit premises whiskey which was not purchased from the Department of Liquor Control. Had Zupon supported the testimony of the permittee it may have further developed, if believed, that the liquor was purchased from the Department of Liquor Control.

The principal prejudice in the failure and refusal to permit appellant to offer the testimony of any of the three witnesses which he had subpoenaed relates to the punishment which the Board inflicted by-reason of finding that all three of the charges were proven. Although the testimony of any or all of the witnesses may not, and in probability would not, have absolved permittee from guilt upon any one of the three charges, the circumstances concerning the bringing of the liquor on to the permit premises and the full explanation of the presence of the three witnesses in the permittee’s place of business if corroborative of permittee, may have been such as to move the Board to be less severe in the extreme penalty inflicted upon permittee, the revocation of his permits. The denial of the right to permittee to complete his record likewise prevented the Common Pleas Judge, who reviewed the case de novo, having all the material facts upon which the guilt or innocence of permittee of the charges, and the justness of the penalty under review, could be evaluated.

The cause will be reversed and remanded for further proceedings according to law, and should be remanded to the Board with instructions to take the testimony of one or all of the three witnesses who were not permitted to testify as to the charges preferred against the permittee.

MILLER, PJ, HORNBECK and FESS, JJ, concur.


author: By PHILLIPS, PJ.

text:
    APPROPRIATION BY OHIO TURNPIKE COMMISSION PROPERTY OF FIEHLER et, In re: OHIO TURNPIKE COMMISSION, Appellant, v. FIEHLER et, Appellees.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3642.
    Decided March 23, 1955.
    Frank C. Dunbar, Jr., Columbus, Myron E. Reinman, Youngstown, for appellant.
    W. O. R. Johnson, Nils P. Johnson, Youngstown, for appellees.
   OPINION

By PHILLIPS, PJ.

A jury in the court of common pleas in this appropriation case returned a verdict for appellees, called landowners, for $8,000.00 for land taken, $1500.00 for buildings, and $10,000.00 for damages to the residue of the landowners property. The trial judge entered judgment upon the jury’s verdict, and from that judgment the commission appealed to this court on questions of law.

At the time of appropriation landowner Piehler owned 32.52 acres of land situated on the southeast corner of the intersection of Ohio State Routes 46 and 62, north of the village of Canfield.

The commission appropriated a triangular shaped parcel of 1.8 acres situated on the south-westerly portion of landowners’ farm, and also a strip of their land thirty-two feet wide, which parallelled and abutted on Ohio State Route 46 from such triangle to Route 62.

A one story frame house, a one story cinder block factory building, and a one story frame restaurant building, which latter was the only building taken, were situated on landowners’ land at the time of the appropriation, leaving a residue of 29.93 acres of owners land. Also thirty-three feet of owners land fronts on Ohio State Route 62 and four hundred ninety-seven feet fronts on Route 46, which land has no access to that highway. All such buildings, except the restaurant building, are now situated on the residue of landowners’ land.

Appellant contends by assignments of error, oral arguments and brief, that the trial judge erred to its prejudice in admitting a plat, identified as property owners’ exhibit No. 5, showing the property as a subdivision, and in permitting landowners’ witnesses to testify, again over objection, to values based upon such plat; that the trial judge erred in admitting evidence, over the commission’s objection, of rentals which were currently being paid for the use of the restaurant building which was taken and of the factory building which was not taken; that the court erred in overruling the commission’s motion to withdraw a juror and declare a mistrial for misconduct of landowners’ counsel in interrogating on cross-examination and incorporating “within the question” an alleged sale price of a lot of land by way of comparison of its value with the appropriated land; and finally that the court erred in admitting evidence of installation costs of leaching beds servicing the restaurant building situated within the area of the lands taken.

On cross-examination landowners’ expert witness Taylor testified as follows:—

“Q. Now, Mr. Taylor, in your approach to the appraisal of the Fiehler property, in your opinion what is the highest and best use to which that property can reasonably be put?
“A. Well, the highest and best use would be to sell it in lots.”

On direct examination landowners’ expert witness Mellinger testified:—

“Q. I am speaking now, disregarding the Turnpike, as the land is today, what is the highest and best use in your opinion as a developer of 30 years’ experience?
“A. Not thinking of the Turnpike?
“Q. Not thinking of the Turnpike, what is the highest and best use?
“A. Platting it into lots.”
Commission’s expert witness Kroeck testified on cross-examination inter alia as follows:—
“Q. In your opinion as a real estate expert the highest and best use of this property is platting purposes?
“A. Yes.
“Q. Not acreage?
“A. Lots, yes.”
On cross-examination commission’s expert witness Foulk testified:—
“Q. I would ask you, Mr. Foulk, in the consideration of the Fiehler property, its highest and best use in your opinion is platting purposes; is that correct?
“A. It could be.”
Commission’s expert witness Summers testified on cross-examination that:—
“Q. In your opinion, Mr. Summers, what is the highest and best use that can reasonably be expected to be made of the Fiehler property?
“A. Well, I would—to get the best results with the least cost, if it was my land and the experience that I have had with others, I would sell off the frontage, at least a hundred foot front by the entire depth, thereby eliminating any cost of streets or—
<<* * *
“A. —the cost of the improvements by the installation of streets and utilities and other expenses attendant on developing of the lands for lots.
“Q. In your opinion, then, it would not be practicable to install or go to the expense as a developer of putting in streets, and so forth, to enable the selling of small lots in the rear; is that correct?
“A. That’s correct, l don’t believe it would be economical.
“Q. And from your experience as a developer, Mr. Summers, can this land be developed as you think it could be most economically developed after the Ohio Turnpike is constructed?
“A. I would think so, yes.”

There is evidence that twelve of the remaining acres of landowners’ land were landlocked, and could not be subdivided. On this subject commission’s expert witness Kroeck testified:—

“Q. * * * What do you propose to do with the balance of the land that is left landlocked in the corner after the Turnpike is constructed; what will the Fiehlers do with this land?
“A. Well, they could still farm it.
“Q. Now, you said that the highest and best use to which this property can be put is platting purposes. If that is the case, isn’t it logical to assume that a platter or developer is going to devise a method of plotting that will entail all the land that is available to him to plat?
“A. Yes, sir.”

Also on this subject commission’s witness Foulk testified:—

“Q. » * * You would sell off all the frontage on Route 46, you would sell off all the frontage available for lots on Route 62, and you would landlock 10 to 12 acres in the back and give it a value of $200.00 an acre?
“A. That’s right.
“Q. How will Mrs. Fiehler get to that property after those lots are sold off?
“A. Just by walking back to it.”

Commission’s witness Summers suggests that the platting would not conform with the requirements of Section IV of the Mahoning County Planning Regulations.

On the admission of land owners’ exhibit number 5

“It is the contention of the appellee, the evidence as above set out, precludes any tenable argument, that the jury was mislead by the admission of Property Owners’ Exhibit No. 5. The exhibit No. 5, on the contrary served to support the contentions of all expert witnesses, that platting of the land was the obvious highest and best use. Whether the jury would follow the highest and best use, as outlined by the exhibit No. 5, or on the other hand, accept the platting method as advocated by the commission’s witnesses was solely within the jury’s province.”

By brief the commission says:—

“We are not unaware that several cases have been decided in the State of Ohio where the courts have held that it was proper to introduce into evidence in an appropriation case a plat of a proposed subdivision of land, even though the plat had not been recorded.”
“It is error in an appropriation proceeding to refuse to permit the owner of the property to fix its value upon any plan most desirable to secure its sale at the best price available.” 15 O. Jur., Section 159, Page 851.

We conclude that the admission of landowners’ exhibit number 5 was not so erroneous as to prejudice the rights of the commission.

There is evidence that Margaret Leach held a two year lease on the restaurant building; that the Carbonic Dispenser Corporation held a five year lease, with a renewal option for five years, on the factory building; and that the fee to the properties was held by landowner Emma Fiehler.

Thus there were several and different interests or estates in the disputed land, and under the ruling of the Supreme Court in the case Sowers v. Schaeffer, 155 Oh St 454, evidence of rental values was admissible in the case under review.

On this question landowners contend by brief:—

“However, the property owner contends, it is not necessary to consider the law in this claimed error by reason of the facts established in evidence.
“The appellee propounds one question.' What substantial rights of the commission were effected by the introduction of rental values and assuming evidence of rental values are not properly admissible?
“Witnesses for the property owners placed a value of $1,500.00 on the restaurant building. (Taylor page 88 and Mellinger page 144). On the other hand, the appellant’s witnesses placed a higher value for the restaurant. Mr. Kroeck said in his opinion, the restaurant building was worth $1,709.00 (page 213), Mr. Summers $1,600 (page 302) and Mr. Foulk in his direct examination testified that he felt the restaurant was worth $1,944.00 (page 265). We therefore note for the court’s consideration the condemnor’s witnesses testified to values in excess of those claimed by the property owner.
“What was the jury’s verdict as to the value of the restaurant? The jury gave $1,500.00, as compensation for the building taken. The introduction of evidence of rental income of $75.00 per month could have in no way been prejudicial to the rights of the condemnor when the jury gave an amount less than the condemnor witnesses testified to the fair value of the property, viz., the restaurant building.”

Landowners contend that no error prejudicial to the commission was committed by the trial judge in the admission of evidence of the rental value of the factory building.

Only one expert witness testified to a decrease in value of the factory building.

With reference to that evidence landowners argue:—

“The facts are irrefutable that rental values even considered inadmissible could not rationally be construed as being prejudicial, when the condemnor’s witnesses were the only witnesses to reflect any decrease in value by reason of the taking.
“It would be difficult indeed to claim an invasion of the appellant’s substantial rights, in fact a situation wherein the property owner receiving rental for a building admits through her expert witnesses that the before and after values remain the same.”

We find no error prejudicial to the commission in the respects urged in this assigned ground of error under discussion.

On cross-examination landowners’ counsel incorporated in a question asked commission’s witness Kroeck whether he knew of a sale for $2,000.00 of a parcel of land 75 feet by 400 feet on the Clay property situated across from the disputed land. The commission contends that landowners counsel was guilty of misconduct in asking that question of so serious a nature and so “misleading to the jury” as to make it “impossible to proceed with the case to an impartial verdict,” which necessitated the trial judge granting commission’s motion to withdraw a juror and declare a mistrial, even though the trial judge sustained an objection to the question as asked and notwithstanding such sale.

Landowners’ expert witnesses established by their testimony that such land situated across from landowners’ land was similar in character, location, and in other respects to landowners’ land, and was sold in the open market.

We conclude no error prejudicial to the commission was committed by the trial judge in overruling its motion to withdraw a juror and continue the case for trial.

With reference to commission’s assigned ground of error that the trial judge erred to its prejudice in admitting evidence of installation costs of leaching beds serving the restaurant building situated within the area of the lands appropriated counsel for property owners state by brief:—

“It is the contention of the property owner that by reason of the latest pronouncements of the supreme court of Ohio a burden of proof has been placed on property owners on certain types of damages resulting from the condemnation of land.”

Landowners’ counsel then cite:—

“In an action for the condemnation of land, the owner has the burden of proving claimed special damage to residue, such as that to underlying minerals.
“* * * It would seem that the condemnor has an opportunity to see the land to be taken and even to observe the probable ordinary damage to the residue. But special damage, such as that to underlying minerals, is a matter usually within the knowledge of the owner rather than the condemner, and there is no valid reason for excusing the owner from the burden of proving the special damage he claims.” Tennessee Gas Transmission Co. v. Wolfe et al, 159 Oh St 391 and 394.

On this question commission’s witness Kroeck on cross-examination testified:—

“Q. August the 17th. Did you know their location at that time?
“A. No—well, I still don’t know their location. The only thing I do know about them is that they are in between the house and the road and between the buildings and the road.
“Q. Do you know the extent of how much is between the house and the road and the building and the road?
“A. No, sir, I don’t.”

Upon authority of Tennessee Gas Transmission Co. v. Wolfe et al, supra, we conclude that the trial judge did not err to the commission’s prejudice in admitting evidence of the installation costs of leaching bed and septic tanks serving the restaurant building situated within the area of the appropriated lands.

We do not believe that “each of the foregoing assignments of error on its own constitute prejudicial error sufficient to warrant reversal of the judgment on the verdict rendered in this case, and that cumulatively the effect of the foregoing errors resulted in completely misleading the jury as to the measure of damages that the landowner was entitled to,” as the commission urges.

The judgment of the court of common pleas is affirmed.

NICHOLS and GRIFFITH, JJ, concur.


text:
    COLUMBIA FIRE INSURANCE COMPANY, Plaintiff-Appellee, v. TRACY, Treas., Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 5020.
    Decided February 26, 1954.
    Landis, Ferguson, Bieser & Greer, Robert K. Landis, of Counsel, Dayton, for plaintiff-appellee.
    Hon. C. William O’Neill, Atty. Geni., Franklin A. Kropp, Asst. Atty. Geni., Columbus, for defendant-appellant.
   OPINION

By THE COURT.

This is a law appeal from the judgment of the Common Pleas Court overruling the defendant’s demurrer to the petition, the grounds for which were that the same did not constitute facts sufficient to state a cause of action. The only legal question presented is whether the annual franchise tax imposed upon a domestic insurance corporation under the provisions of §5414-9 GC is a tax for the year in which the report must be filed and the tax collected, or is it a tax for the previous year which the report covers?

We have examined the opinion of the trial court and concur in his conclusion that the tax is for the year in which it is required to be paid and which time is fixed by §5414-13 GC.

It would serve no good purpose for us to again state the reasons given by Judge Reynolds in his well considered opinion, which we think is sound and adequate.

The judgment will be affirmed.

WISEMAN, PJ, MILLER and HORNBECK, JJ, concur.


author: Per CURIAM.

text:
    PHILLIPS et, Plaintiffs-Appellees, v. LOWELLVILLE CONSTRUCTION CO., Defendant-Appellant.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3760.
    Decided April 13, 1955.
    Paul A. Stevens, Youngstown, for plaintiffs-appellees.
    Raleigh P. Swanner, Raymond J. Parillo, Youngstown, for defendant-appellant.
   OPINION

Per CURIAM.

The defendant-appellant drafted its own warranty deed conveying to plaintiff certain premises “free and clear of all incumbrances whatsoever except taxes becoming due and payable in December 1952 and thereafter which the grantees assume and agree to pay.”

Two questions present themselves: First, in this action may the defendant by parol evidence show the actual consideration in the deed? Second, is the word “taxes” in this covenant of the deed broad enough to inciude “special assessments”?

If this were an action to reform the deed by the defendant then parol evidence would be admissible, but parol evidence in the absence of fraud or mistake is inadmissible to create, extend or limit covenants of title. Jones v. Timmons, 21 Oh St 596. Hoyt v. McDonough, 3 O. C. C. 177.

This deed must be construed most strongly against the grantor for the reason that the grantor drafted and executed it. Goebel v. The Cincinnati Postal Terminal & Realty Co., 120 Oh St 19.

Assessments are distinguished from taxes proper. See Reeves v. Treasurer of Wood County, 8 Oh St 333; Jackson, Treasurer, v. Board of Education, 115 Oh St 368; and Lima v. Cemetery Association, 42 Oh St 128.

We hold that the use of the word ‘'taxes” as an exception in the deed does not include special assessments, and that the court was not in error in excluding parol evidence in this case, and that the judgment of the court of common pleas must be and hereby is affirmed.

PHILLIPS, PJ, GRIFFITH and NICHOLS, JJ, concur.


author: By MILLER, PJ.

text:
    REGAL MOTOR PRODUCTS, Inc., Plaintiff-Appellant, v. BENDER, d. b. a. U. S. AUTO PARTS, Defendants-Appellees.
    Ohio Appeals, Second District, Franklin County.
    No. 5347.
    Decided March 13, 1956.
    Maugan & Vacca, Columbus, for plaintiff-appellant.
    Thomas W. Applegate, Columbus, for defendants-appellees
    (FESS, J, of the Sixth District, sitting by designation in the Second District.)
   OPINION

By MILLER, PJ.

This is a law appeal from the judgment of the Municipal Court of Columbus, Ohio, rendered in favor of the plaintiff for the sum of $154.21 plus interest from January 16, 1953. The plaintiff is appealing because of the inadequacy of the amount of the judgment. The record reveals that the action was instituted by Regal Motor Products, Inc., seeking to recover upon an account the sum of $796.70 plus interest for goods sold and delivered to the defendant, A1 Bender. To this petition the defendant has filed the following answer:

“Defendant for answer to the petition of plaintiff admits that he is an individual operating under the trade name and style of U. S. Auto Parts, and that he received the merchandise covered by the invoices attached to the petition of plaintiff and that the agreed price for the same was $773.50, and that none of said sum has been paid.
“Defendant further says that merchandise covered by said invoices was misrepresented to the defendant as being readily saleable merchandise and that the demand for the same would create a market for this product. Defendant further says that plaintiff and its agents well knew that said merchandise was not in demand and that defendant would not be able to sell the merchandise in the quantity shipped to him.”

The plaintiff’s reply to the answer denies that the merchandise was misrepresented to the defendant. The record reveals that on July 15, 1952, the defendant signed an order for the merchandise which is the subject of this action; that the same was received by the defendant on or about August 12, 1952; that it consisted of 175 units of accessory mouldings for used automobiles which were to be used to make them appear as more recent models; that upon receipt of the goods it was placed in stock and salesmen were given descriptive circulars on the same and an effort was made to sell the various units to the defendant’s retail customers, the plaintiff acting as a jobber.

The record reveals further that the defendant sold 38 of these units, for which the court rendered judgment and held that the balance of the units were held by Bender subject to the orders of the plaintiff.

During the course of the trial the Court admitted into evidence over the objection of counsel for the plaintiff, testimony of the defendant to the effect that the units were not as represented; that some of them were too long to fit the model car they were intended for; that they were chrome plated and not aluminum plated as represented; also, that they were not readily saleable for the reason that it took too much time and labor to install them. Now, did the Court commit prejudicial error m admitting this testimony? We are of the opinion that it did as to the alleged defects in the merchandise. The issues were raised by the pleadings and the testimony should have been limited to them. The defendant was attmpting to establish a breach of warranty which was not pleaded The evidence clearly reveals that the conduct of the defendant was such as to constitute an acceptance under §1315.48 R. C., which provides:

“When goods are delivered to the buyer, which he has not previously examined, he is not deemed to have accepted them until he has had a reasonable opportunity of examining them for the purpose of ascertaining whether they are in conformity with the contract
“Unless otherwise agreed, when the seller tenders delivery of goods to the buyer, he is bound, on request, to afford the buyer a reasonable opportunity of examining the goods for the purpose of ascertaining whether they are in conformity with the contract.
“When goods are delivered to a carrier by the seller, in accordance with an order from or agreement with the buyer, upon the terms that the goods shall not be delivered by the carrier to the buyer until he has paid the price, whether such terms are indicated by marking the goods ‘collect on delivery,’ or otherwise, the buyer is not entitled to examine the goods before payment of the price in the absence of agreement permitting such examination.”

By selling 38 units the defendant committed acts inconsistent with the ownership of the seller. The only representation set forth in the answer is that the merchandise was not “readily saleable” and that no demand was created for the same as the plaintiff represented there would be. These alleged representations do not describe the merchandise but are what is commonly known as “puffing.” It is merely sales talk and an expression of the opinion of the seller. But even if these were actual misrepresentations sufficient to constitute a breach, the defendant has not pursued the remedies available to him under §1315.70 R. C-Since the defendant had accepted the goods and did not rescind the contract and offered to return the same he had available to him the following remedies under this sectidn, to wit:

“When there is a breach of warranty by a seller, the buyer may, at his election:
“(A) Accept or keep the goods and set up against the seller, the breach of warranty by way of recoupment in diminution or extinction of the price;
“(B) Accept or keep the goods and maintain an action against the seller for damages for the breach of warranty.”
“The defendant testified that he complained to one of the plaintiff’s salesmen approximately thirty days after the goods were received, that the units were not selling as represented and offered to settle for one-half and return the other one-half. This cannot be considered as a rescission of the contract under §1315.70 R. C. It is more in the nature of an attempt to enter into a new contract and which, if established, has not been pleaded. We find that the defendant offered no competent evidence which under the pleadings constitutes a defense to the action, hence the court erred in overruling the plaintiff’s motion for a judgment non obstante veredicto.

The judgment is ordered reversed, the motion is sustained and judgment is rendered for the plaintiff for the sum of $796.70 and interest per petition.

HORNBECK and FESS, JJ, concur.