text:
    CALDWELL v. WARREN, et.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 9575.
    Decided Nov. 12, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    REAL ESTATE.
    (510 133f) Enclosing of porch, and transforming it into sun room, makes porch part of building, and if it extends beyond set back line, it violates building restriction. Mere fact that owner did not intend to plaster sun room inside, immaterial.
    Wm. J. Corrigan, Cleveland, for Caldwell.
    Wm. R. Pringle, Cleveland, for Warren, et.
    HISTORY: — Action in Common Pleas by Caldwell to enjoin Warren from violating building restriction. Heard on appeal. Injunction granted. _ No action in Supreme Court prior to publication date.
    STATEMENT OP PACTS.
    The purpose below was to enjoin the violation of a building line restriction.
    The plaintiff and the defendants are neighbors living in adjoining houses and both obtained title from a common grantor and the restrictions are the same in both deeds and are such that they run with the land and so far as they apply to this case, they are to the effect that no building shall be erected whose front wall is nearer than 25 feet to the street line, nor shall the porches on such buildings extend nearer than 17 feet to the street line.
    ■The defendant’s property was a double house having an upstairs and downstairs with a front entrance to each from the lower front porch. When the house was constructed the front wall was in accordance with the restrictions contained in the deeds, and the porch was an open porch extending not nearer than 17 feet from the street line. This house was so constructed that there was a porch for the downstairs and a porch for the upstairs. The roof of the lower porch was supported by wooden pillars or posts and between these was a railing with spindles in it and there was a railing with spindles in it similar to this on the upper porch. Between the floor of the upper porch which constituted the roof of the lower porch and the bottom of the cornice of this so-called roof was a space of 12 to 18 inches built so that it curved and this space was covered with shingles. About a year or more before the filing of this lawsuit, the owner defendant had taken out the spindles of the upper porch and had replaced them with studding and sheeting and covered the sheeting with shingles, thus carrying the shingled space heretofore referred to, up as high as the railing had been in which spindles had been set theretofore and upon this new-made part posts were placed. But it was still an open porch until the events which caused the bringing of this lawsuit took place, when a lot of windows were brought on the ground, and the plaintiff in this action, David Caldwell, inquired of the defendant, Joseph Warren, what he proposed to do and, from the record we learn that he was told they were going to enclose the. upper porch and Caldwell called the attention of Warner to the restriction showing it to him in the abstract and telling him that the same restriction was in his abstract and warned him not to proceed with the proposed building as it would be a violation of the restriction. Notwithstanding this neighborly tip, Warren proceeded to go forward and to take out these posts and put studding up to the roof and covered the studding with sheeting and filled in the space between these pilasters covered with sheeting, with frames for double windows in which, from the pictures that are shown in evidence, were to be placed French windows, so that when it was completed this upper porch would be an enclosed room and could be denominated a “sun room,” but for all intents and purposes it became a part of the house and instead of there being an open porch there would be an enclosed portion of the house within cne restricted area.
   VICKERY, J.

Now the testimony of the builder is important. His testimony is clear and unequivocal that the purpose was to build an enclosed room. True, he says .the windows could be removed. Of course, the windows could be removed from any house, but from the looks of the windows that were already in and that were to be put here, they were French windows and they were hung on hinges so they would open inward, and from the structure of the window frames it does not seem possible that these were intended to be simply temporary affairs, and the room thus enclosed would project the house out eight feet beyond the front wall of the house and the roof covering this enclosed porch would extend out farther than the original roof.

We think the manner in which they sought to do this, shows plainly and conclusively that it was designed by the defendants to violate the building restrictions and it was being done so gradually from time to time that it would lull the suspicions of the neighbor until it was all up. The mere fact that they did not intend to plaster it on the inside, although from the testimony of the builder that is uncertain, would be immaterial. On the outside it was a complete structure and it was an enclosed structure and these French windows were as much a part of the house as French windows are in any house and, of course, they could be removed, but the window frames would still be there and it would be an enclosed porch with the window sash taken out.

From the whole record we think there is an intended violation of the building restrictions and the plaintiff is entitled to the relief that he seeks and the injunction will be allowed and made perpetual and a decree may be drawn in favor of the plaintiff to carry out the purpose of this opinion.

(Sullivan, PJ., concurs. Levine, J., not participating.)


source: Caselaw Access Project

author: MAUCK, J.

license: Public Domain

text:
    SMITH v. STATE.
    Ohio Appeals, 4th Dist., Logan Co.
    Decided Oct. 29, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    CHILDREN.
    (100 M) Under 13008 and 13008-1 GC., accused who fails to support child, can avoid conviction only by affirmatively proving inability to support it. Burden of proof, upon question of ability, is upon accused.
    Fact that a number of witnesses testified that they did not have jobs for accused, did not necessarily prove that some one else would not have employed him at some other kind of work.
    Eugene Wright, Logan, for Smith.
    Phil A. Henderson, Pros. Atty., for State.
    HISTORY: — Smith convicted in Common Pleas on charge of failure to support minor child. Smith brings error. Judgment affirmed. No action in Supreme Court prior to publication date.
    STATEMENT OF FACTS.
    William Smith was tried in the Court of Common Pleas of Hocking County under an indictment charging him with failure to provide for his legitimate child from the first day of February, 1928, to April 2, 1928. He was found guilty and judgment entered upon the verdict.
   MAUCK, J.

The offense charged is one defined by Section 13008 GC. The contention of the plaintiff in error here is that the verdict is in violation of Section 13008-1 GC. It becomes necessary, therefore, to ascertain what the purpose and effect of this supplementary section is.

The effect of the statute was simply, this, that whereas formerly the state had to prove the ability of the accused in order to convict, under the new statute the accused who fails to support his child can only avoid conviction by affirmatively proving his inability to support it. The change, therefore, simply changed the burden of proof upon the question of the ability of the accused from, the state to the accused.

The trial court in the instant case accordingly charged that before the defendant was entitled to an acquittal because of his inability to support his child he must show by the preponderance of the evidence that he was unable to perform his parental duty. It is thus seen that if this charge is correct, and we hold it to be correct, the only real question before us is whether or not the jury was required to believe the testimony offered by Smith in regard to his inability to support the child. Smith testified that he had neither property nor earnings. He offered a number of witnesses who testified that Smith sought employment from these several witnesses and that none of them gave him employment. When all of the testimony is reduced to its lowest terms it amounts to nothing more than that a number of credible witnesses testified that the accused sought work from them and did not find it. The jury might well have believed all that these witnesses testified to and yet have been persuaded that there was some work some where in this country that an able bodied man might have performed at the time in question. The jury may have known that there were millions of able bodied men doing humble work and supporting families with the proceeds thereof and may have concluded that the defendant might as well have been engaged in like labor. The fact that a number of witnesses who testified in this case did not have a job for the accused did not necessarily prove that some one else would not have employed the accused at some other kind of work. Moreover, the testimony tended to show that the accused was a good worker at a skillful trade, and tended to show that he had not been out of employment for a very long time. It may have believed that being a good workman he had drawn good wages.and with the prudence that should characterize a father had saved those wages, and had as a result resources out of which he could have supported the child as easily as he supported himself during the months of February and March last. The defendant was only entitled to an acquittal when by the greater weight of the evidence he made it- appear that he was unable to provide his child with statutory support. This means that it had to so appear to the trial jury. By their verdict that body, was not satisfied with the truth of the defense so interposed, and we have no disposition to disturb the conclusion so reached.

(Middleton, PJ., and Thomas, J., concur.)


text:
    LEONARD v. MAYFIELD HEIGHTS (Vil.) et.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 9651.
    Decided Oct. 29, 1928.
    (Hughes, PJ., and Justice, J., of tho 3rd Dist., and Mauck, J., of the 4th Dist., sitting.)
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    CONTRACTS.
    (150 Pfd) No standard fixed by statute for ascertaining what is best bid. What is best bid is confided to discretion of council and judgment of latter is conclusive unless it be shown that those possessing the discretion have abused their power. Council not required to seek views or consult judgment of others.
    White, Hammon, Brewer & Curtiss, Cleveland, for Leonard.
    Gurney, Gurney & Gurney and B. D. Nicola, Cleveland, for Mayfield Heights (Vil.).
    HISTORY: — Action by taxpayer to enjoin village from entering into and carrying out contract. Heard on appeal. Decree for Village. No action in Supreme Court prior to publication date.
    STATEMENT OF FACTS.
    The plaintiff brought her action as a taxpayer to enjoin the Village of Mayfield Heights from entering into and carrying out two contracts with the plaintiff construction company, one for the construction of sewers in Genessee Avenue, the other for sewer and water connections in Parker Drive. The- bid of the Pfaff Company on the Genessee Avenue contract was $21,531.80, while the Angelo Mer-ra bid for the same job was $20,359.05. On the Parker Drive job the Pfaff Co., bid $3,150.00, another company bid $3,039.00 and the. Angelo-Merra Co., bid $3,015.00. The plaintiff charges that a majority of the village council had voted to award the two contracts to the Pfaff Co., and that in so doing they had abused their discretion in determining that company to be the best and lowest bidder.
   MAUCK, J.

There is some suspicion of the good faith of the village officers, but this arises from the earlier history of the transaction. There had been a previous advertisement. for bids for the same jobs on the same specifications. Under the advertisement on the Genessee imr provement, the bids had run from $19,212.76 to $28,666.50, one Burkhardt being the low bidder, the Angelo-Merra Co., being the second lowest at $19,789.26, while the Pfaff construction Co. bid $23,609.89. All these bids were rejected for the alleged reason that they were too low, and under like circumstances all the bids on the Parker Drive improvement were rejected. On the second advertisement it will be observed that the Angelo-Merra Co., raised its bid and the Pfaff Construction Co., lowered its bid. From this the suspicion is generated that the trouble with the first bids was that Burkhardt and the Angelo-Merra Co., were then too low and The Pfaff Co. too high. The council however saw fit to reject all the first bids and its action is not open to review.

We mention this rather unusual action of the municipal authorities because it seems to us the only circumstance taken in connection with the fact that the Pfaff Co., was not the lowest bidder to reflect upon the good faith of the village in finding that the Pfaff Co., was the best bidder.

What we take to be the fact, however, is that the first bids were rejected not because they were all too low, but because some of them were too lo-w and others, if not all, were made under a misunderstanding of the physical conditions under which the contract would be performed. It is conceded by the plaintiff that the village officers were not bound to award the contract to the lowest bidder, that the bid must be the best as well as the lowest and that no standard is fixed by the statute for ascertaining what is the best bid. It is conceded that what is the best bid is confided to the discretion of the council and that the judgment of the latter is conclusive unless it be shown that those possessing the discretion have abused their power. It is argued, however, that such abuse is shown here because it appears that the council did not inquire of the low bidder as to his merits nor give him an opportunity to prove them. The course suggested would be one way to ascertain whether the low bidder was the best bidder but no statutory or other rule requires the council to have a hearing on the merits of the bidders. It may well be in a given case that the authorities know from official experience that the low bidder is not a good bidder, and their experience may have been such that no am'ount of protestation by the party would affect their judgment. Such seems to have been the case here. At least, that position is consistent with the other facts of the case. The low bidder had done other work in which this village was interested. That work was so performed that council was not satisfied with it. The council did not believe that the contractor was a good performer in that matter and hence did not consider him a good bidder for the new work.

It is argued that by inquiry of others the council might have been convinced of the error of their position. They were acting, however, upon their own experience, and as it was their discretion that was determinative they were not required to seek the views or consult the judgment of others. They may have been wrong. If so, there is nothing to show that they were not honest in it; nothing to show that they were acting in bad faith, or unreasonably. Indeed we can not even say that they were unwise.

(Hughes, PJ., and Justice, J., concur.)


author: JUSTICE, J.

text:
    NEWBURGH HEIGHTS (Vil.) v. VANEK.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8903.
    Decided Oct. 29, 1928.
    (Hughes and Justice, JJ., of the 3rd Dist., and Mauck, J., of the 4th Dist., sitting.)
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    AUTOMOBILES.
    (50 Eb) Driving automobile at night with headlights, which throw their rays about three feet in front of machine, in violation of 6310-1 GC., is negligence per se.
    J. E. Mathews, Cleveland, for Newburgh Heights (Vil.)'.
    Artl & Smolke, Cleveland, for Vanek.
    HISTORY;. — Action in Common Pleas by Vanek against Village for damages. Judgment for Vanek. Village brings error. Reversed and final judgment for Village. No action in Supreme Court prior to publication date.
    STATEMENT OF FACTS.
    Frank Vanek brought the action against the village of Newburgh Heights to recover damages for alleged personal injuries and property loss, caused, as he claimed, by the negligence of the village. An answer was filed by the village, denying any negligence on its part. Upon trial, a verdict was returned for Vanek. A motion for a new trial was overruled and a judgment entered upon the verdict. The reversal of that judgment is the object of this proceeding.
    A number of errors are assigned. Only one, however, is relied upon for a reversal; error of the trial court in overuling the motion of the village for a directed verdict in its favor at the close of all the evidence.
    The evidence discloses that on the morning of November 3, 1925, there existed on Harvard Avenue, one of the streets of said village, a hole described as being 3 feet long, 10 inches wide, and 8 inches deep; that said hole had existed in said street for several weeks prior to that date; that the village by and through its duly constituted officials, had either actual or constructive knowledge thereof; that on said day. about the hour of 6:00 A. M., Vanek, while operating his automobile upon said street, ran it into said hole and by reason thereof sustained injuries to his person and damages to his automobile; that according to Vanek, the street was covered with snow and that by reason thereof he could not see the hole in the street until about three feet from it.
    Vanek was interrogated about the lights on his automobile and we quote the questions asked and the answers given by him, concerning them:
    “Q. What lights did you have burning, bright or dim?
    A. Dim lights.

      Q. How far in front of your machine did your dim lights throw their light?
    A. About three feet.
    Q. You say that the rays of the lights you were using at the time of the accident illuminated the roadway only three feet in front of your machine?
    A. Yes, sir.”
    Vanek further testified that it was dark at the time of the accident; that he could not see the roadway beyond the rays of the lights of his automobile; that the falling snow did not interfere with his view of the street and that he was driving his car about 18 to 20 miles per hour.
    It further appears that the sun did not rise until 7:22 A. M.
    There are other facts to which our attention has been invited but they are not controlling and therefore will not be mentioned.
   JUSTICE, J.

Counsel for plaintiff in error contends that the testimony of Vanek establishes negligence on his part directly and proximately contributing to the production of the injuries complained of. With this contention we are in accord.

Section 6310-1 General Code, so far as pertinent here, provides:

(Here follows quotation from this, section.)

This statute is mandatory and a violation thereof is negligence per se.

In the instant case, plaintiff testified that the lights of his automobile at the time of the accident, threw their rays about three feet in front of his machine. Obviously he was not only driving his automobile at a place where he could not see but that too without the lights required by law.

Buddenberg v. Kavanaugh, 17 O. App. 252,

Pennsylvania Railroad Co. v. Rusynk, 117 OS. 322.

That the _ driving of the automobile by Vanek at a time when he could not see, directly and proximately contributed to the production of the injuries complained of is patent.

It is also most apparent from a reading of the record that the negligence, if any, of the village, was not wanton or wilful and hence not of such a character as to relieve against contributory negligence.

Youngstown & Suburban Railway Co. v. Faulk, 118 OS. 346.

Applying, the rule of law enounced in the above mentioned case, to. the facts in this case as testified to by plaintiff, it becomes at once apparent that plaintiff is not entitled under the law to any relief in the premises.

Holding these views it follows that the judgment of the court of Common Pleas should be reversed; and, that this court should now enter the judgment which that court should have rendered.

(Hughes and Mauck, JJ., concur.)


author: FARR, J.

text:
    WRIGHT et v. RAND et.
    Ohio Appeals, 7th Dist., Mahoning Co.
    Decided June 8, 1928.
    First Publication of This Opinion.
    Syllabus by' Editorial Staff.
    REAL ESTATE.
    (510 C3) Terms, of written contract, having been altered by grantor before signing
    and such alteration not having been communicated to grantee, there was no mutuality between parties and specific performance could not be decreed.
    CONTRACTS.
    (150 E) Minds of parties not having met, vendee is entitled to return of earnest money.
    M. C. Carman, Youngstown, for Wright, et.
    George, Roberts & Barrett, Youngstown, for Rand, et.
    HISTORY: — Action in Common ■ Pleas by John and Margaret Wright against Rand and others to recover earnest money paid on contract to buy real estate. Heard on appeal. Decree for Wrights. No action in Supreme Court prior to publication date.
    STATEMENT OF FACTS.
    It is alleged in the petition that on the 20th day of October, 1927, plaintiffs entered into a contract with Mary E. Rand, through her agents, C. E. Taylor and J. A. Burkholder, for the Benefit of Mary E. Rand, and subject to her approval, for the purchase of 67 acres of land in Trumbull County. It is further alleged that Mary E. Rand represented herself to plaintiffs as the executrix of the estate of Matilda Everett, deceased, and was designated in the contract as “Administrator.” At the time of the signing of said contract plaintiffs paid to the agents the sum of 500.00 to apply upon the purchase price of said premises. The contract was made in duplicate and the copy delivered to plaintiffs was signed by the agents individually and the plaintiffs, but does not bear the signature of Mary E. Rand. The copy retained by her or her agents below contained the following written endorsement: “The above sale and terms are satisfactory with the exception that the first mortgage mentioned above for the term of three years shall be paid on or before one year.”
    The prayer of the petition is for the recovery of $500.00 paid as earnest money upon the making of the contract, with interest thereon. The cause was heard in the court below and judgment entered and from which an appeal is perfected in this court.
   FARR, J.

There is some dispute here with reference to the period for which a mortgage of $5,000 was to run and as to whether or not Mary E. Rand had consented to a three year period, and in this behalf it is contended that there was endorsed upon her copy of the contract the paragraph above set out. However, it is not shown that this fact was ever communicated to the plaintiffs or that such endorsement was made upon the contract held by them, it having been their desire that the mortgage for $5,000, together with the note secured thereby, should run for a period of three years, and this being the situation as to the proof, it follows. that this alteration in the terms of the original contract so changed its terms and conditions as to render it null and void.

To establish this principle does not require the citation of authorities because it is a rule well recognized in practically every jurisdiction, as announced in Elliott on Contracts, .Sections 3841 and 3843; 1 Parson on Contracts, 491, and the numerous cases cited as sustaining the text.

It is not shown that the endorsement on the copy of the contract held by Mrs. Rand with reference to a change in the terms of their original contract was ever communicated to the plaintiffs herein. There is, therefore, no valid contract between them. Consequently, specific performance can not be decreed for the reason that the contract was never completed; that is, there was no mutuality between the parties, and it follows that the plaintiffs are entitled to recover the sum paid upon the original contract, which is $500.00. Judgment accordingly.

(Pollock and Roberts, JJ., concur.)


author: MARSHALL, CJ.

text:
    SILSBY et v. STATE STATE ex SILSBY et v. WHITE, Judge
    Ohio Supreme Court
    Nos. 21250 and 21255.
    Decided Nov. 26, 1928.
    Error to Cuyahoga Appeals.
    Judgment Reversed.
    In Mandamus.
    Writ Denied.
   MARSHALL, CJ.

CRIMINAL LAW

(190 S3) The requirements of section 13694 General Code impose a mandatory duty upon a trial judge to ask an accused person whether he has anything to say why judgment should not be pronounced against him.

Where that duty has not been discharged by the court and error is prosecuted therefrom anda court of review finds no other error in the record, the judgment should be reversed and the cause remanded to the trial court for the sole purpose of resentence.

Day, Allen, Kinkade, Robinson, Jones and Matthias, JJ., concur.


text:
    STEPHENSON v. STATE
    Ohio Supreme Court.
    No. 21230.
    Decided Nov. 26, 1928.
    On Motion to Dismiss Petition in Error.
    Dismissed.
   MARSHALL, CJ.

CONSTITUTIONAL LAW

(140 F) Article 6 of the Amendments to the Federal Constitution was not intended to limit the powers of the state governments in respect to their own people but to operate on the national government alone.

TRIAL

(590 J3) Trial by jury is not a necessary requisite of due process of law, and a denial of that right is not violative of Section 1 of Article 14 of the Amendments to the Federal Constitution.

ERROR PROCEEDINGS

(260 P) Except where the jurisdiction of the trial court over the subject-matter of the action is involved, assignments of error in a petition in error filed in a reviewing court reach only alleged errors of law where objections were made and exceptions reserved in the trial court, and such reviewing court will only consider and determine alleged errors of law where the questions involved were raised and determined in the court of first instance.

Day, Allen, Kinkade and Matthias, JJ., concur.


author: ALLEN, J.

text:
    C. Z. & W. TRANSP. CO. v. P. U. C.
    Ohio Supreme Court.
    No. 21172.
    Decided Nov. 26, 1928.
    Error to P. U. C.
    Order Reversed.
   ALLEN, J.

AUTOMOBILES

(50 P2b) Where a motor transportation company abandons ' operation over a portion of its cei'tificated route without the approval of such abandonment by the Public Utilities Commission, good cause for the revocation of the certificate is thereby established. However, under Section 614-92, General Code, when part of a route becomes concededly impassable and the motor transportation company notifies the Public Utilities Commission of that fact, the Public Utilities Commission is justified in approving a suspension of operation.

Where the uncontradicted facts of the record show that a motor transportation company, through its president, conferred upon various occasions with the Public Utilities Commission as to the impassability of part of its route, and that such motor transportation company at such conferences offered to operate over that part of the route which was passable, and that a letter was sent by the attorney of such motor transportation company to the Public Utilities Commission, notifying the commission of the impassability of such route, and that the chairman of the Public Utilities Commission noted upon such letter, “Approved,” followed by his signature, upon complaint being instituted thereafter that the route has been abandoned, the Public Utilities Commission is not justified in revoking the certificate.

Marshall, CJ., Day, Kinkade, Robinson, Jones and Matthias, JJ., concur.


author: JONES, J.

text:
    MADISON TWP. BD. OF ED. v. WAITS
    Ohio Supreme Court.
    No. 21103.
    Decided Nov. 26, 1928.
    Error to Perry Appeals.
    Reversed and Final Judgment.
   JONES, J.

SCHOOLS & SCHOOL DISTRICTS

(530 T) Section 7730, General Code, provides that a teacher’s contract of employment shall be terminated when a board of education suspends a school “because of disadvantageous location or any other cause.” The quoted clause is unambiguous. “Other” causes for suspension are not confined to disadvan-tag-eous location or the like; inability to comply with an order of the State Department of Industrial Relations may be a valid cause for suspension.

Marshall, CJ., Day, Allen, Kinkade, Robinson and Matthias, JJ., concur.


author: ROBINSON, J.

text:
    N. Y. C. RD. CO. v. P. U. C.
    Ohio Supreme Court.
    No. 21275.
    Decided Nov. 26, 1928.
    Error to P. U. C.
    Order Affirmed.
   ROBINSON, J.

COMMON CARRIERS

(130 R2) The fact that a controversy exists between a shipper and a common carrier does not justify such common carrier in refusing to serve such shipper.

PUBLIC UTILITIES COMMISSION

(480 P) The fact that such controversy arises out of a contract does not deprive the Public Utlities Commission of Ohio of jurisdiction to require service.

The Public Utilities Commission of Ohio has jurisdiction to require just and reasonable freight and passenger service from an interstate common carrier for intrastate business, so long as such requirement is not inconsistent with an order of the Interstate Commerce Commission, Section 1, Article 17, Interstate Commerce Act; and has jurisdiction over the construction or abandonment of spur, industrial, team, switching or side tracks, located wholly within the state, Article 22, same section.

Marshall, CJ., Day, Allen, Kinkade, Jones and Matthias, JJ., concur.


author: By McNEILL, J.

text:
    VAN WERT COUNTY LAW LIBRARY ASSOCIATION v. STUCKEY et al.
    Common Pleas Court, Van Wert County.
    No. 19789.
    Decided December 30, 1949.

      Kerns-Wright, S. S. Beard, C. E. Drury, Van Wert, for plaintiff:
   OPINION

By McNEILL, J.

The Van Wert County Law Library Association filed its petition asking for declaratory judgment. The petition indicates that the auditor of Van Wert County has not made a certificate showing the liability of each municipal corporation to the Law Library Association. The auditor does not deny that the certificate should be made but has stated that insufficient data is provided to him by such municipal corporations to make such a certificate. In addition, many other questions relative to the interpretation of the Law Library Sections have been raised. As these are numerous, they will be taken up separately in each part of the opinion.

General

1. See. 3056 and §3056-2 GC are modified by the provisions of §3056-3 GC.

In interpreting §3056-3 GC it would be simpler to find that it does not apply to municipal corporations or courts of common pleas, as §3056 and §3056-2 GC seemingly provide for the distribution of all fines received by them. However, all three sections were enacted at the same time, and it is apparent that the legislature intended that all should be operative.

2. Sec. 3056-3 GC does not provide an additional maximum liability for payments by municipalities, courts of common pleas, or probate courts, to the law library association but the limitation provided in §3056-3 GC is limited by the provisions of §3056 and §3056-2 GC.

To hold that payments to a law library association for violations of the Liquor Control Act as provided in §3056-3 GC shall be made in addition to the total amount payable under §3056 and §3056-2 GC would necessarily mean that all payments provided in §3056-3 GC are in addition to the limits provided in the other sections. Thus, payments because of violations of the State Traffic Law would be unlimited as no limit is provided in §3056-3 GC. The Court does not feel this was the intention of the legislature as a reading of all the act shows an intent to specifically limit the liability of courts of common pleas and by municipalities. Therefore, when a clerk of the court of common pleas has paid $1250.00 under §3056-2 GC to a law library association or a municipality has paid the amount provided in the certificate of the auditor under §3058 GC, they shall make no further payments to a law 'library association whether or not $1200.00, has been paid because of violations of the Liquor Control Act. However, even if the maximum under the certificate has not been reached, no more than $1200.00 may be paid for violations of the Liquor Control Act.

3. The maximum of $1200.00 provided in §3056-3 GC is $1200.00 for each municipal corporation; $1200.00 for the courts of common pleas of a county or probate court, and $1200.00 for all of the justices of peace courts for monies to be paid because of Liquor Control Act violations.

Some confusion is caused by the use of the word “treasurer” in said section. In §§3056 and 3056-2 GC the term “clerk” is used. In reading the sections together the reasonable interpretation is' that when “treasurer” is used in §3056-3 GC it must be read as “clerk” when considering the court of common pleas and municipalities, and “treasurer” in the reference to justices of the peace, as these are the county offices that make payments to law library associations. Sees. 3056, 3056-1, 3056-2 GC.

4. Secs. 3056, 3056-1, 3056-2, 3056-3 GC and Secs. 6064-59 and 1183-4 GC are compatible. The enactment of §1183-4 GC does not repeal by implication §§3056, 3056-1, 3056-2 and 3056-3 GC.

In Greenville v. Law Library Association, 21 O. O. 238, the court held that the enactment of §3056-3 GC by implication overruled §1181-5 now §1183-4 GC. A similar decision was announced in Law Library Association v. Parker, 22 O. O. 170. If this Court follows a similar view it necessarily would be held that the enactment of §1183-4 GC, October 11, 1945, would by implication repeal all parts of §3056-3 GC that are inconsistent therewith. However, an examination of the second case indicates that although the court announced the above rule of law, it did not actually so hold. In the Greenville case, the court held that §3056-3 GC overruled §1181-5 GC by implication in so far as they were incompatible, §1181-5 GC providing that if an arrest were made by a state highway patrolman, 50 per cent of the fine should go to the state and 50 per cent to a local subdivision. The court ruled that 50 per cent of all fines arising from arrests made by state highway patrolmen should go to the law library association; 25 per cent to the local subdivision; and 25 per cent to the state. Thus it was held that §3056-3 GC did repeal §1181-5 GC in that 50 per cent of the fines must go to a law library association, regardless of the effect of §1181-5 GC. However, the court’s interpretation of the compatibility of §3056-3 with §6064-59 GC was not completely consistent with the above holding.

In the Warren case, although the court announced the same rule of law, its actual holding was that the 50 per cent of traffic fines payable to a law libraray association under §3056-3 GC was only 50 per cent of that available to the local subdivisions and therefore, 25 per cent went to a law library association, 25 per cent to the local subdivision, and 50 per. cent to the state. Thus, in the Warren case, it actually was found that the sections were compatible, even if part of the language used seemed to indicate otherwise, or necessarily, the decision would have been the same as in the Green-ville case.

This court is of the opinion that the actual decision reached in the Warren case is the proper one. This court does not feel that each time the legislature re-enacts or recodifies a section or makes some minor changes that they intend to repeal all other sections relating to-fines. This matter is con-' fusing enough in its present state without making such a ruling. If such a ruling were followed, each time there was a minor change or reeodification of the laws relating to fines, the complete distribution would be thereby changed. Such repeals by implication are not favored and should not be indulged in if any other reasonable construction may be found. 37 O. Jur. 401.

5. In construing §§3058, 3056-1, 3056-3, 3056-3 GC and §1181-4 and §6064-59 GC together, the combined meaning of these sections is that the monies or per cent of monies payable to a law library association by local subdivisions or other local authorities as provided in §§3056, 3056-1, 3056-3 and 3058-3 GC " is only that per cent of money available to the local subdivision or county.

Generally, if by law only a part of a fine is made available to a local subdivision • or a county, then the percentage payable to the law library association under §3056 to 3056-3 GC is only a percentage of that available to such municipality or county and is not a percentage of the whole amount. Sec. 3056 to §3056-3 GC provide for payments to a law library association by units the size of a county or smaller. It is apparent that the provisions of §3056 to §3056-3 GC only apply to funds that would be distributed to such subdivisions except for such sections and does not apply to funds payable to the state. Thus, §3056 to §3056-3 GC are still applicable to monies payable to local subdivisions.

6. The term “Violations of the Liquor Control Act”, as set forth in §3056-3 GC, includes only those statutes included in §§6064-1 to 6064-68 GC, inclusive, or any additions thereto and does not include such offenses as driving while intoxicated, drunkenness, or illegally selling intoxicating liquors to minors. Greenville Law Library Association v. Taylor, supra, approved and followed.

7. Violations of the State Traffic Laws or amendments thereto as contemplated in §3056-3 GC include only those provisions entitled Uniform Traffic Act, which is comprised of §§6307-1 to 6307-119 GC and any additions thereto and §§7246 to 7251 GC entitled Traffic Regulations, and any future amendments thereto.

Any other violations, including violations of §6296-30 GC are not violations of the State Traffic Laws as provided in §3056-3 GC. Greenville Law Library Association v.' Taylor, supra, approved and followed.

Municipal Corporations

8. If a county auditor fails to make the certificate required by §3056 GC, it is not necessary for a municipal corporation to make any payments to the law library association as provided by §3056 GC, as no limit of its liability has been set.

9. It is mandatory under §3056 GC for each municipal corporation to pay over to the law library association all monies for fines, penalties, forfeited deposits, bail bonds and recognizances prosecuted under a municipal ordinance when there is in force a state statute under which the offense might be prosecuted. It is also mandatory that it pay to a law library association all like funds received in cases prosecuted in the name of the state up. to the amount set forth in the auditor’s certificate, unless such payment is exempted hereafter. Law Library Association v. Parker, supra, followed and approved.

1Ó. The wording of a penal ordinance of a municipality does not need to be word for word the same as the penal statute of the state to come within the provisions of §3056 GC. It is sufficient that the person arrested could also have been arrested and fined under state statute for the same offense. Even though the wording be different, it is sufficient that the arrest could be made under the state statute. If this is possible, the fines must be paid over to the law library association up to the limit set forth in the statute. Law Library Association v. Parker, supra, followed and approved.

11. Where a municipal corporation has no clerk, the mayor is to be considered the clerk of his own court and he is required to pay the money to the law library association.

He should not pay the same to the municipal treasurer and the treasurer in turn pay it to the law library association; neither should he pay it to the county auditor, but should make such payments direct to the Secretary-Treasurer of the law library association. Sec. 3056; 3056-3 GC. Law Library Association v. Parker, supra, followed and approved. However, such mayor as his own clerk should make no distribution until the time for appeal has passed.

12. All monies received by a municipality because of violations of criminal laws, up to the maximum set by the county auditor, where there is rio municipal court, should be distributed as follows:

a. If the arrest is made by a state highway patrolman in all cases 50 per cent to the state; 25-per cent to the law library association, and 25 per cent to the road and bridge fund of the municipality.

b. If an arrest is made for a violation of the state traffic laws, as defined herein, except when the arrest is made by a state highway patrolman, 50 per cent to the law library association and 5Q per cent to the road and bridge fund of the county.

c. If the arrest is for violation of the Liquor Control Act, as defined herein, 50 per cent to the state treasury, 25 per cent to the county treasury, and 25 per cent to the law library association.

d. In all other cases not covered by sections a to c, including violations of a municipal or village ordinance and violations of state laws, all funds received shall be paid to the law library association. Of course all funds received from violations of municipal ordinances where there is no similar state law, are retained by the municipality.

13. If the maximum amount payable under the certificate of the county auditor has been paid to a law library association by the municipality, thereafter all monies received from violation of ordinances shall be retained by the municipality. All money for violations of any of the state laws shall, except when the arrest is made by a state highway patrolman, be paid to the county treasury, credited to the credit of the general fund, except monies received for violations of state traffic laws which shall be credited to the road and bridge fund as provided by §S30'J-108 GC. If an arrést is made by a state highway patrolman, then 50 per cent should be paid to the state and the municipality shall retain 50 per cent to be credited to the road and street fund as provided by' §1184-4 GC.

Justice of Peace

14. A justice of the peace shall make distribution of monies received because of violations of the criminal laws of the state as follows:

a. If the arrest is made by a state highway patrolman, 50 per cent to the state treasury and 50 per cent to the road and bridge fund of the county.

b. If violation of the Liquor Control Act as defined herein, 50 per cent to the state treasury and 50 per cent to the general fund of the county.

c. In all other cases all the fine shall be paid into the county treasury to the credit of'the general fund.

However, it is necessary for the county treasurer upon the warrant of the county auditor, to properly distribute the funds so received from justices of the peace as provided herein. Sec. 3056-1'GC makes no provisions for direct distribution of fines to a law library association by justices of the peace.

Court of Common Pleas, Probate Court, and Juvenile Courts

15. See. 3056-2 GC provides that the Probate court of each county shall pay yearly up to $1250.00 to a county law library association from monies arising from violations of the criminal laws, and in addition, the clerk of the court of common pleas shall likewise pay up to $1250.00 to such law library

associations from monies arising from violations of the criminal laws. Such payments should be made directly to such law library association and not to the county treasurer.

16. None of the monies arising from criminal violations in the juvenile court are payable to a law library association but shall be distributed as otherwise provided by law.

At the time of the enactment of §3056 to 3056-8 GC the juvenile court was in existence, either being a division of the court of common pleas or a separate court, the judge also serving as probate judge. Although the judge may hold'an- ' other position, the juvenile court' in fact a separate court having separate records and a separate jurisdiction. The juvenile court is not specifically mentioned in §3056-2 GC. As all other courts are specifically referred to, it must be deemed that the legislature intended that such section should not apply to juvenile courts.

17. Sec. 1184-4 GC, providing for the distribution of fines where an arrest is made by a state highway patrolman, is not applicable in cases prosecuted in the common pleas court.

Sec. 1184-4 GC provides that when the arrest is made by a state highway patrolman, the money shall be distributed as therein provided. However, when charges are prosecuted in the court of common pleas, they cannot be heard on an affidavit of a state highway patrolman, but must be brought upon an indictment, information, or an affidavit filed by the prosecuting attorney. Arrest is then made by the Sheriff, even though a person is actually in custody. Sec. 13438-1 GC. Thus, in cases prosecuted in the court of common pleas the arrest upon which a conviction is secured cannot be made by a state highway patrolman as he has no power to serve such indictment or information or warrant, even though such patrolman may have made the original detention.

18. In the court of common pleas, 50 per cent of the monies arising because of violations of the state traffic laws, as herein defined, regardless of the officer making the arrest, is payable to the law library association and 50 per cent to the county, to be credited to the road and bridge fund. Sec. 3056-3; §6307-108 GC. Likewise, fifty per cent of the monies arising from violations of the Liquor Control Act, as herein defined, shall be paid the state treasury, twenty-five per cent to the county treasury, and twenty-five per cent to the law library association. In all other cases, such monies shall be paid by the clerk of the court of common pleas to- the law library association. However, when the maximum of $1250.00 has been paid by a clerk of courts to a law library association, no further payments shall be made to such association.

• 19. After the maximum amounts payable to a law library association has been reached as provided by §3056-2 and §3056-3 GC, all monies received because of violations of the State Liquor Control Act shall be paid one-half to the state and one-half to the general fund of the county; monies received because of violations of the State Traffic Laws, shall be paid to the county treasurer, credited to the road and bridge fund; §6307-108 GC; and all other monies resulting from violations of the state criminal laws shall be paid to the county treasury to the credit of the general fund.

County Auditor

20. It is mandatory for the county auditor to certify the maximum amount payable by each municipality to a law library association before December 31st of each year. Sec. 3056 GC is clear in this respect as the word “shall” is used. As this is a duty imposed by law, the auditor has no discretion whether or not to prepare such certificate.

21. In computing the certificate of amounts payable to a law library association by each municipality as provided by §3056 GC for the next year, the certificate is based on the actual receipts of such municipality for the second preceding year from the year covered by such certificate. For simplification, if the certificate were prepared on December 31, 1948, for the year of 1949, the certificate is based upon the estimated budgets submitted in mid-year of 1948, showing the receipts of monies for the year 1947.

22. The county auditor does not have authority to refuse municipal budgets failing to declare actual receipts as provided by §5620-21 GC. Even though this information is not furnished, the auditor must accept the budget. Warren county Law Library Association v. Parker, 23 O. O. 511, followed and approved.

23. The budget commission does have authority to refuse to act on a budget of a municipal corporation that is not complete in that it does not show the total fines received as provided by the Bureau of Inspection and Supervision of Public Offices requirements under §2737 GC. Law Library Association v. Parker, 23 O. O. 511, followed and approved. However, this action by the budget commission is not mandatory but is discretionary.

The court feels this must be the rule ás matters relating to a law library association comprises but a very small part of the budget, and if it is the judgment of the budget commission that they proceed without these figures, they may so do. '

24. If the accepted budget does not include the fines received by the municipal corporations and the budget commission does not return it, then the county auditor may use his own discretion in computing the total receipts because of violations of the criminal law that are missing from the budget. He may use old records, estimates based on population, or any other reasonable basis. The law requires that he shall act and if any subdivision by its failure to obey the law makes it difficult or impossible for him to act, it cannot complain if he uses any reasonable method to supply the missing information. The auditor should adopt figures most unfavorable to the municipal corporation failing to include such receipts so as not to prejudice any municipal corporations that have properly included their figures.

25. If fines are improperly paid to the auditor when they should be paid directly to the law library association, the auditor in his discretion may return these fines to the municipality for proper forwarding, or if sufficient information is accompanied to indicate that they should be received by the law library association' he may turn them over to such association. The auditor may require any clerk, treasurer, or proper person paying fines or forfeited deposits or recognaisance in his office to execute a proper form showing the origin of such fine so that he may determine if proper distribution has been made.

26. It is the duty of the county auditor to draw his warrant upon the county treasurer and to pay to the law library association 50 per cent of all monies received by the county treasurer from justices of the peace because of violations of the criminal laws. However, not more than $1200.00 shall be so paid because of violations of the Liquor Control Act.

No problem arises herein because of State Traffic Law violations, as §3056-1 and 3056-3 GC each provide for 50 per cent to be paid to the law library association. Likewise, the duty rests upon a justice of the peace to make distribution to the state. Consequently, 50 per cent of all monies received by the treasurer from justices of the peace is payable to the law library association.

27. Even though a county auditor has not made a certificate showing the amount payable by a municipal corporation to a law library association, and as a result said municipal corporation had no duty to make payments to a law library association as provided herein, monies paid by a municipal corporation to the county treasury that would have been paid, to a law library association, except for the failure to make’ such certificate, must be paid by the county treasurer on the. warrant of the auditor to the law library association.

Such monies are not properly retainable by the county as-. §83056 to S056-3 GC indicate that such monies up to $7500.00¡ are payable to the law library association. The failure of an. auditor to make a certificate, although depriving the association of monies resulting from convictions where the arrest is made by state highway patrolmen, cannot deprive the association of monies actually due it that are paid into the-county treasury. In such case, even though the auditor has. not made a certificate, it. lies within his own knowledge that, such funds are improperly in the county treasury and it is. his duty to see that distribution is made to the one entitled; to the funds.

Law Library Association

28. The law library association may expend funds received under §3056 to §3056-3 GC for purchase of books; repair of books; a reasonable amount to any person acting as custodian or performing other reasonable duties that are not within the usual duties of librarian; the reasonable purchase of furniture, such as tables and chairs for the use of persons using the books; and any other reasonable expenses necessary for the maintenance of the law library such as purchase of library cards, catalogs, indexes, etc.

29. However, a law library association may not use funds collected under §§3056 to 3056-3 GC for the purchase of bookcases, light fixtures, rent or heat, as §3055 GC provides that the county commissioners shall furnish the above.

30. The salary of the law librarian may not be paid from funds received by the law library association under §3056 to §3056-3 GC, as §3054 GC provides that the salary of the law librarian shall be paid by the county commissioners and provides the maximum amount payable.

31. The law library association may purchase bookcases or light fixtures, expend funds for rent, light and heat, or for additional salary to the l,aw librarian from funds that it may receive from a private source. If the law library association receives private donations; in respect to such monies it. is like any other private association- and may use such private funds for any proper purposes of the association, even though it is prohibited by law from expending funds received from a public source for such purposes. In many counties, including this one, the law librarian donates all or part of his salary to the association. In such cases, these funds along with any other donations or dues, are private funds and are not accountable to the county auditor as are the funds received under §3056 to §3056-3 GC, but are accountable only to the law library association. Their use is subject only to the rules of such association and they are not re-. tiirnable to any subdivision. An account of such funds should be kept separate from funds received from a public source.

32. At the end of the year, 90 per cent of the balance remaining in the hands of the law library association as certified by the county auditor, shall be returned by the law library association to each subdivision. However, this applies only to 90 per cent of the unincumbered balance and if a debt has been contracted against his balance, the same is not unincumbered. This limitation applies only to the funds received from §3056 to 3056-3 GC and it is not applicable to any private funds received by the association.

33. In determining the amount to be repaid to any municipality, such funds should be computed on an actual cash receipt basis. The monies received in one year are only those actually- received, regardless of when the same should be levied. If a fine is levied in a municipality on December 20, 1948, and it is not paid into the law library association until January 10, 1949, such funds should be considered as being received for the year 1949. Law Library Association v. Parker, supra, followed and approved.

34. The pro-rata returnable under §3056 GC is to be made to the subdivision entitled to retain the funds rather than from the subdivision paying the fund. That is, in state cases, a-municipality under §3056 GC is required to pay the same to the law library association. However, if it were not for §3056 GC such monies would be paid to the county treasurer. Sec. 4270 GC. Thus, the test in determining the pro-rata return of 90 per cent of the balance each year is a determination of what treasury would be actually entitled to such monies except for §§3056, 3056-1, 3056-2 and 3056-3 GC.

35. In making a pro-rata return to the subdivisions under §3056 GC the secretary-treasurer of the law library association should keep separate accounts for each of the various subdivisions. This account should be broken into tw.o parts, one representing the general fund of the county or subdivision and one the road and bridge fund. Upon the receipt of monies, the proper fund of a subdivision should be credited. At the end of the year 90 per cent of the unincumbered monies should be distributed to each fund of each subdivision on a pro-rata basis as provided herein.

36. The secretary-treasurer of the law library association should credit the funds of each unit paying into the law library association as follows:

a. If the arrest is made by a state highway patrolman and funds are paid in by a municipality, the street fund of such city should be credited. If by a justice of the peace through the county treasurer, the road and bridge fund of the county should be credited.

b. If the funds are paid in because of a violation of an . ordinance of a municipality, the general fund of said municipality should be credited.

c. In all cases of monies arising because of violations of the state traffic laws, except where the arrest is made by a state highway patrolman, it should be credited to the road and bridge fund of the county.

d. In all other cases the general fund of the county should be credited. '

37. The secretary-treasurer of a law library association may be unable to ascertain what amounts are due to a municipality and what are due to a county because of insufficient information accompanying such pay-in. In such case the secretary-treasurer of a law library association may properly credit such monies to the general fund of the county. This rule may seem harsh to a municipality; however, any municipality is only entitled to the return of any funds paid to a law library association if such funds are exempted from the operation of §4270 GC by other legislation. A municipal corporation has the opportunity to protect-itself by supplying proper information to the secretary-treasurer of the law library association as to the origin of the fíne. If it fails to supply this information, it cannot complain.


author: By THE COURT:

text:
    MEEHAN, Appellee, v. CINCINNATI (City), Appellant.
    Ohio Appeals, First District, Hamilton County.
    No. 6188.
    Decided November 23, 1942.
    Hauer & Topmoeller, Cincinnati, for appellee.
    John D. Ellis, J. B. Grause, Jr., Cincinnati, for appellant.
   OPINION

By THE COURT:

It is true that the description of the defect in the sidewalk in the evidence does not conform in all respects to the allegations in the bill of particulars, but the specific evidence does .fall within the defect described generally in the bill.

The evidence did not show a very great defect in the sidewalk, but a defect was proven and one witness (Weber) testified that the plaintiff caught her foot, tripped and fell by reason i of the defect.

The only error urged for a reversal of this judgment is that it is not sustained by sufficient evidence.

No error in the submission of the issues to the jury was presented.

On the one issue urged, we find that, there was evidence of a defect, and that the plaintiff was injured thereby, and we cannot say that the verdict is manifestly against the weight of the evidence on that issue or on the issue of the plaintiff’s contributory negligence.

The judgment is affirmed.

MATTHEWS, PJ, ROSS, J, concur.


author: By PHILLIPS, J.

text:
    TROCK, Plaintiff-Appellee, v. HUBBARD (Village) et al, Defendants-Appellants.
    Ohio Appeals, Seventh District, Trumbull County.
    No. 1229.
    Decided March 16, 1950.
    C. H. Anderson, Warren, for plaintiff-appellee.
    Leo L. Luchette, Masury, for defendants-appellants.
   OPINION

By PHILLIPS, J.

In his petition, filed in the court of common pleas', plaintiff (so designated here), a non-resident and non-taxpayer of the village of Hubbard, sought to permanently restrain defendants there, so called here, the Village of Hubbard, and its mayor, solicitor, and the members of the Trumbull County Board of Elections, from placing on the ballot and submitting to the electors of Hubbard Township, of which he is a resident, at the election to be held on November 8, 1949, the issue of the annexation of land situated therein to the defendant village, in accordance with Ordinance Number 1090 of such village, passed by its council on'September 6, 1949, entitled “An ordinance authorizing the Board of Elections of Trumbull County, Ohio, to submit to the voters of Hubbard Township the annexation of certain territory”; and for a judgment of the court of common pleas declaring such ordinance invalid and void.

Defendant village moved to dismiss such petition on the ground that plaintiff failed to comply with the provisions of §4314 GC, compelling him to make a demand on, and receive the refusal of, the solicitor of such village to bring that action before filing his action; and because he furnished no security for costs.

Defendant village demurred to plaintiff’s petition on the ground that plaintiff- was not a taxpayer, nor resident of defendant village, and therefore was not a real party in interest, and could not maintain such action; and accordingly his petition did not state a cause of action against defendants.

The trial judge did not rule on such motion, or such demurrer, specifically except by proceeding to hear the action we review on its merits, which was tantamount to overruling defendant’s demurrer; and. upon hearing had on November 5, 1949, entered judgment declaring such ordinance invalid and void.

Defendants appealed from that judgment on questions of law.

By assignments of error defendants contend that “the trial court erred in failing to consider and to sustain defendants’ motion for dismissal”; and “in failing to consider and failing to sustain defendants’ demurrer to plaintiff’s petition.”

Defendants contend that no demand was made “upon the village solicitor,” and no security was given for costs before plaintiff filed his petition in the court- of common pleas; which statement is supported by the allegation of plaintiff’s petition, in which he alleges that he brought his action “as a taxpayer and on behalf of all other taxpayers in Hubbard Township,” and by the evidence contained in the bill of exceptions.

Clearly, as shown by the pleadings and the evidence, plaintiff had no right to bring such action as a taxpayer on behalf of all other taxpayers of Hubbard Township because he failed to furnish security for costs as required by §43Í4 GC; and failed to make legal demand upon the proper official to commence such action.

The time for submission of the ordinance pleaded having’ expired, it follows that-a--new valid ordinance must be adopted "authorizing -the-submission of'the question upon a future date to be fixed.

Obviously none of plaintiff’s rights are affected now by the ordinance pleaded. Accordingly all questions involving the rights of plaintiff as' an individual are moot.

Furthermore, it is apparent that plaintiff instituted his action prematurely, because it has not been determined that the annexation would have been approved by the electorate. Until such approval none of plaintiff’s rights could, nor would, have been affected.

Therefore, the trial judge should have sustained defendants’ motion and dismissed plaintiff’s action at his costs.

The judgment of the trial court is reversed, and coming now to render the judgment the trial judge should have rendered plaintiff’s petition is dismissed at his costs.

NICHOLS, J, CONN, J, concur in judgment.


author: By WEBER, J.

text:
    HENNEMAN, Plaintiff-Appellant, v. VAUGHAN, Defendant-Appellee.
    Common Pleas Court, Hamilton County.
    No. A-120480.
    Decided November 1, 1950.
    Robert L. Young, Cincinnati, for plaintiff-appellant.
    Prentice Clay Wilson, Cincinnati, for defendant-appellee.
   OPINION

By WEBER, J.

This case is before this court on an appeal from the Municipal Court case No. 477087. The sole question of law is whether the Municipal Court properly sustained a demurrer to the Bill of Particulars on the ground that it was manifest that the action was not brought within the time limited far the commencement of such actions.

The Bill of Particulars was filed on December 28, 1949. The action. was for the recovery of excessive rents collected by the defendant and the penalty provided therefor. The Bill of Particulars sets forth that the last overcharge of rent was made on December 25, 1948.' It is further alleged that under authority of Emergency Price Control Act of 1942, and as amended and supplemented, and the regulations promulgated thereunder, and the Housing and Rent Act of 1947, and as amended, and the regulations promulgated thereunder by the housing expediter, on December 28, 1948, an order was issued by the rent director for the Cincinnati Area decreasing the rent * * *. It is further alleged that said order stated:

"Any rent collected from the effective date of this order in excess of the amount provided in this order shall be refunded to the tenant within thirty days from the date this order is issued unless the refund is staid * *

The Bill of Particulars further alleges that in direct violation of the order the defendant had refused to make the refund to the plaintiff.

The Municipal Court apparently based its conclusion that the one year statute of limitations began to run from the time of the overcharge, that is, from December 25, 1948, and prior thereto, and not from the time of the defendant’s failure to make the refund within thirty days after the date said order of refund was issued, namely, December 28, 1948.

The identical question was decided March 15,1948, in Woods; Housing Expediter v. Stone, 333 U. S., 472, from which we quote as follows:

“1.. The one-year period of limitations prescribed by Section 205 (e) of the Emergency Price Control Act of 1942 as amended, on an action against a landlord on account of an overcharge in rent of property .which the landlord had failed to register as required by rent regulations, begins to run not from the date of payment of the rent but from the date of the landlord’s failure to comply with a refund order.”

Page 447:

"The duty to refund was created and measured by the refund order and was not breached until that order was disobeyed. * * * It was from the violation which occurred when the order was not obeyed within the required time that the statute of limitations commenced to run.”

The Bill of Particulars in this case was filed on December 28, 1949, which is less than one year after thirty days after the date on which the order to refund was issued, namely, December 28, 1948.

The demurrer to the Bill of Particulars should have been overruled.

It is therefore ordered, adjudged and decreed that the decision of the Municipal Court sustaining the demurrer to the Bill of Particulars is reversed and the case should be and is hereby remanded to the Municipal Court for further proceedings according to law and the holding in this,opinion.


author: By THE COURT: By THE COURT:

text:
    INGBERG, Plaintiff-Appellant, v. CHAPMAN, Defendant-Appellee.
    Ohio Appeals, Second District, Montgomery County.
    No. 2053.
    Decided December 7, 1949.
    Froug & Froug, Dayton, for plaintiff-appellant.
    Beigel & Mahrt, Dayton, for defendant-appellee.
   OPINION

By THE COURT:

This is an appeal on questions of law from the judgment of the Common Pleas Court of Montgomery County, Ohio, affirming the judgment of the Municipal Court of Dayton rendered in favor of the defendant.

This is an action for damages for the conversion of two furnaces. The sole question for determination is whether the two furnaces which were used in the place of business conducted by the plaintiff and' the defendant as partners are fixtures. After giving careful consideration to the agreement to dissolve partnership, and the bill of sale, which are not in themselves determinative of the question involved, the issue must be decided by other evidence in the record.

The trial court and the Court of Common Pleas found that the principal test to be applied in this case was whether the partners intended that the two furnaces should be regarded as chattels or as a part of the realty. The intention of the parties must be determined from the facts. With respect to the manner in which the furnaces were installed the evidence shows that the furnaces were set on a concrete base; the gas pipes came from the outside and were connected to the furnaces by the use of couplings; the flue from the furnaces extended upward through a hole in the roof of the building; the furnaces operated by the use of a thermostat. There was nothing peculiar about the installation. Regardless of the fact that the furnaces were a part of the building, if they were regarded as personal property by the partners, the furnaces would pass to the appellant under the bill of sale since all assets of the partnership, except the real estate, were transferred to him.

In such matters one item of evidence alone may point to the intention of the parties. This is true here. In the balance sheet dated July 31, 1946, which was the date on which the agreement dissolving the partnership was executed, the two furnaces were carried as personal property under the item of “Fixed Assets” with the machinery and equipment. This is convincing evidence supporting the contention that the partners did not .regard the furnaces as a part of the real estate. On the other hand, it indicates an intention to regard the furnaces as personal property, otherwise they would not have been so listed.

The balance sheet listed the furnaces at $571.17. This was the amount for which the plaintiff brought suit. However, the balance sheet shows a depreciation item of $180.87, and carried the value of the furnaces as of July 31, 1946, at $390.30.

This was the only evidence as to value, but it is of sufficient probative effect on which- to base a judgment for the appellant.

It is our opinion the judgment below is contrary to law and it is hereby reversed.

This Court is authorized to render the judgment which should have been rendered. Judgment for plaintiff-appellant for $390.30.

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

ON APPLICATION FOR REHEARING

No. 2053.

Decided January 7, 1950.

By THE COURT:

Submitted on application for rehearing and on the motion of the appellant to strike the application for rehearing from the files.

In support of the motion to strike counsel for appellant cites the case of Nickerson v. Nickerson, 54 Abs 445, which held that since there is no present rule of Court which provides for the filing of an application for rehearing a motion to strike such application from the files is appropriately filed. However, in the Nickerson case this Court held:

“While the present Rules of Court do not provide -for the filing of an application for a rehearing, such application, if presented, will be given such recognition as the Court deems proper. If a vital question is raised which would require a different decision by the Court, the Court will give due recognition to such application.”

After giving due consideration to the question presented on the application for rehearing, the Court overrules the motion to strike the application from the files.

The application for rehearing calls attention of the Court to the fact that there was a conflict in the evidence on the question as to whether the parties intended the furnaces to be personalty or a part of the real estate. On this issue different minds could reasonably arrive at different conclusions. We cannot say that the judgment of the trial court was manifestly against the weight of the evidence. We find no merit in the other errors assigned.

Our former opinion will be modified accordingly.

The judgment of the Common Pleas Court, affirming the judgment of the Municipal Court, will be affirmed.

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


author: By MARTIN, CJ.

text:
    PHEIFFER v. PENNSYLVANIA R. CO. et al.
    United States Court of Appeals Sixth Circuit.
    No. 11166.
    Decided January 31, 1951.
    Britton D. Young, Young & Young, Norwalk,.of counsel, for appellant.
    Robert B. Gosline, Toledo, G. Ray Craig, Norwalk, Shumaker, Loop, Kendrick & Winn, Toledo, of counsel, for appellees.
    Before HICKS, Chief Judge, ALLEN and MARTIN, Circuit Judges.
   OPINION

By MARTIN, CJ.

The issue presented is whether, as was held by the district court, the averments of the amended petition or complaint of the appellant administratrix brings her decedent, killed in an automobile accident, within the definition of a “guest” under a correct interpretation of the so-called “guest statute” of Ohio, §6308-6 GC.

Appellant’s action for damages for death by wrongful act, brought in behalf of herself, as widow, and her infant twin daughters, was filed against the Pennsylvania Railroad Company and the administrator of William Myers, deceased, as joint defendants.

The petition, or complaint, alleged that the death of her intestate was directly and proximately caused by the joint and concurrent negligence of the railroad company and the appellee’s decedent, William Myers. The railroad company’s negligence was specified in detail in several separate paragraphs. The complaint charged that William Myers, in whose truck appellant’s intestate was riding when killed, failed to keep a lookout, failed -to keep his automobile under control, and undertook to cross a railroad grade-crossing when he saw or in the exercise of ordinary care should, have seen the approaching train with which the truck collided. It will be observed that only failure to exercise ordinary care was averred against Myers. No wilful or wanton misconduct on his part in operating the motor vehicle was charged. If appellant’s intestate was a guest of Myers at the tinie of the accident, there would be no liability placed by the Ohio statute upon the estate of the latter, unless the death of appellant’s decedent was caused by the wilful or wanton misconduct of Myers in operating the motor vehicle.

The applicable Ohio law reads as follows: “[Guest Statute] §6308-6 GC. [Liability of owners and operators of motor vehicles to guests; exception.] The owner, operator or person responsible for the operation of a motor vehicle shall not be liable for loss or damage arising from injuries to or death of a guest while being transported without payment therefor in or upon said motor vehicle, resulting from the operation thereof, unless such injuries or death are caused by the wilful or wanton misconduct of such operator, owner or person responsible for the operation of said motor vehicle.”

The appellant administratrix averred in her amended complaint that “her decedent and one Clemons Smith were neighboring farmers and as such exchanged work as is the custom existing, that on November 23, 1948, her decedent was thus exchanging work and was helping the said Clemons Smith preparatory to tiling; that the said Clemons Smith had employed the sa>d William Myers and his truck to drive to the tile yard at St. Stephens, Ohio, and to convey with him the plaintiff’s decedent who in pursuance of said agreement for the exchange of work would and did assist in the loading and unloading of the tile required by the said Clemons Smith;” [emphasis ours] and that while her decedent was riding in the truck so operated he was instantly killed in consequence of a collision between a passenger train operated by the appellee railroad company and the truck of William Myers.

The district court sustained a motion of the appellee administrator of William Myers, deceased, to dismiss upon the ground that the amended petition failed to state a cause of action against his intestate. No opinion, but only a bare order of dismissal with prejudice, was filed by the district judge upon the stated authority of the Ohio Code Section quoted above and of Dorn v. Village of North Olmsted, 133 Oh St 375, 11 O. O. 31, 14 N. E. 2d 11, 14.

In our judgment, the, dismissal of appellant’s cause of action was erroneous, because it is not in conformity with correct interpretation either of the Ohio statute or of the sole opinion of the Supreme Court of Ohio cited by the district court. We think, moreover, that the dismissal was not in consonance with the law of Ohio as we have derived it from other opinions promulgated by the courts of that state.

In Dorn v. Olmsted, supra, the Supreme Court of Ohio asserted that the guest statute is in derogation of the common law and, therefore, must be strictly construed;' and that the statute was intended to prevent a person “getting a free ride from suing his benefactor,” unless the latter was guilty of wilful or wanton misconduct. It was held that a person invited by the driver of a motor vehicle to ride with him to locate a certain residence was not a guest within the purview of §6308-6 GC. The opinion quoted with approval the following paragraph from a California decision: “A guest is one who is invited, either directly or by implication, to enjoy the hospitality of the driver of a car, who accepts such hospitality and takes a ride either for his own pleasure or on his business without making any return to or conferring, any benefit upon the driver of the car other than the mere pleasure of his company.”

On a motion to dismiss, the averments of the complaint together with all reasonable inferences therefrom must be accepted as true; and all legitimate intendments of the pleader in narrating alleged facts must be resolved in favor of the pleading attacked. The complaint declares that a neighboring farmer who was exchanging work with appellant’s intestate had employed William Myers to drive his truck to a tile yard and to convey with him appellant’s decedent who, in pursuance of his agreement with the neighboring farmer, assisted in the loading and unloading of the tile required by him. We think this statement in the complaint carries the clear implication that Myers was to be paid for transporting-appellant’s decedent in his automobile truck. It would be splitting hairs to construe the employment of Myers by the neighboring farmer not to be .employment for compensation. The fair intendment of the pleading is, in our view, that appellant’s intestate was not a guest of Myers when riding in the truck in which he was killed but was a passenger for hire, the cost of his transportation to be paid by a third person. Myers was under the legal duty to exercise ordinary and reasonable care for the safety of his passenger, which the complaint charges he failed to do. It follows that appellant’s action should not have been dismissed.

Ohio authorities, other than the Dorn case, supra, will be briefly reviewed. In Sprenger v. Braker, 71 Oh Ap, 349, 26 O. O. 270, 49 N. E. 2d 958, it was held in interpreting the Ohio Guest Statute that there is no logical distinction between payment by the passenger and payment by someone else in his behalf; and that members of a lodge conveyed by a co-member by automobile to a lodge meeting on the assumption and expectation by him that the lodge would pay him for the transportation, which expectation was realized, were passengers and not guests of the driver. In Bailey v. Neale, 63 Oh Ap 62, 16 O. O. 290, 25 N. E. 2d 310, it was held that a person invited by the driver of a motor vehicle to make a trip with him to assist in a business transaction without promise, expectation, or receipt of pay, is not a guest within the purview of §6308-6 GC, and is owed the duty of having ordinary care exercised by the driver in the operation of the motor vehicle even though the person transported may receive an indirect benefit from the arrangement. If payment for transportation is agreed upon the rider in the, automobile of another is, of course, a passenger and not a guest. Dougherty, Admrs., v. Hall, 70 Oh Ap 163, 24 O. O. 502, 45 N. E. 2d 608.

The Pennsylvania Railroad Company, through its attorneys, made the main argument for appellees and filed a brief in behalf of the judgment below. It insists that because appellant’s intestate was riding in Myers’ truck “on his own business” any benefit conferred by loading tile is, under the law of Ohio, insufficient to remove him from the category of a guest; and, further, that the amended complaint does not properly allege payment for the transportation of appellant’s intestate and, “even if considered as payment by third person,” it is insufficient to remove appellant’s decedent from the category of a guest. The argument is unsound and the authorities cited do not lend it reasonable support. Hasbrook v. Wingate, 152 Oh St 50, 39 O. O. 372, 87 N. E. 2d 87, 10 A. L. R. 2d 1342, holds that the test whether a passenger status existed at the time of an accident resulting in an injury to one riding in the automobile of another is the existence of the right of the motorist host to recover in an action at law the reasonable or agreed value of the transportation furnished. Here, the allegation of the complaint is that the neighboring farmer “employed” Myers to transport in his automobile appellant’s decedent. If so, Myers could have recovered by judgment against the neighboring farmer the reasonable value of the transportation of appellant’s decedent. In the absence of agreement upon a specific sum, recovery would be allowed upon a quantum meruit basis. In the course of its opinion, 152 Oh St at page 57, 87 N. E. 2d at page 91, the Supreme Court of Ohio explained that “where the rider accompanies the driver at the instance of the latter for the purpose of having the rider render a benefit or service to the driver on a trip which is primarily for the attainment of'some objective of the driver, the rider is a passenger and not a guest.” Here, the allegation of the complaint is that appellant’s intestate assisted Myers in loading and unloading tile.

Miller v. Fairley, 141 Oh St 327, 25 O. O. 459, 48 N. E. 2d 217, 218, cited by the railroad company, does not support its position. There, the State Supreme Court again pointed out that §6308-6 GC, being in derogation of the common law, must be strictly construed, and held that “if any payment which may be considered as payment for transportation is accepted” by the operator of a motor vehicle, the guest statute does not apply and he is not protected by limitation upon the relief to be granted persons injured while riding with him. On the facts presented in that case, persons being transported between their homes and their places of employment were declared to be entitled to judgment for injuries arising out of the negligence, of the operator of the automobile transr porting them.

While in Duncan v. Hutchinson, 139 Oh St 185, 22 O. O. 199, 39 N. E. 2d 140, 142, the injured party was held to be a guest and denied recovery on facts wholly dissimilar to those alleged here, the opinion of the Ohio Supreme Court (page 189) declared that it is not necessary that payment be made hi money to constitute an individual transported a passenger and not a guest. It was pointed out by the court that payment for transportation may be made in numerous ways: among others, “when the automobile host has a financial or business interest in the time or service of the passenger and the purpose of the transportation is to take the passenger to or from his place of employment”; when a substantial or tangible benefit is conferred upon the automobile host in lieu of and for the transportation; or “when the compensation is paid by a third person.”

Decisions under the Ohio Workmen’s Compensation Act, §1465-37 et seq, GC, cited by attorneys for the railroad company to the effect that a custom to exchange work existing among farmers does not constitute' employment, are deemed wholly irrelevant and will not be discussed.

The following Ohio cases in which persons injured while riding in the automobile of another were held to be guests are not in point for the reason that they differ in essential circumstances from the facts alleged in the complaint in the instant case: Iles v. Lamphere, 60 Oh Ap 4, 13 O. O. 333, 18 N. E. 2d 989 (voluntary Ladies Aid workers riding together); Pantall v. Shriver-Allison Co., 61 Oh Ap 119, 14 O. O. 178, 22 N. E. 2d 497 (involving driver of his own car in a funeral procession); Ernest v. Bellville, 53 Oh Ap 110, 6 O. O. 569, 4 N. E. 2d 286 (companions on a fishing trip riding together).

The judgment of the district court dismissing appellant’s petition or complaint is reversed, and the cause is remanded for trial upon its merits.