text:
    BURGER et, Appellant, v. BOARD OF LIQUOR CONTROL et, Appellees.
    Ohio Appeals, Second District, Franklin County.
    No. 5295.
    Decided January 3, 1956.
    Roger Chacksfield, Cincinnati, Nelson Lancione, Columbus, for appellant.
    Hon. C. William O’Neill, Atty. Geni., Kiehner Johnson, Asst. Atty. Geni., Columbus, for appellees.
   OPINION

By HORNBECK, J.

Submitted upon motion of appellant for rehearing on our opinion of September 21, 1955, affirming the judgment of the Common Pleas Court which had affirmed ah order of defendant Board revoking certain permits of appellant.

Although our rules do not provide for applications for rehearing, it has been our practice to entertain such applications if it appears that in our original opinion we have failed to observe some controlling principle which, if applied, would require a different finding. Our decision when released was in accord with the construction of the nature of the review in these cases as defined in Farrand v. State Medical Board, 151 Oh St 222, 85 N. E. 2d 113.

Although the judgment entry in the Common Pleas Court merely recites that:

“The court finds that the order of the Board of Liquor Control is supported by reliable, probative and substantial evidence and is in accordance with law,”

following the rule announced by the Supreme Court in the cases of Andrews, Jr., d. b. a. Buffalo Grill and Hotel v. Board of Liquor Control, and Rufo, d. b. a. Mickey’s Cafe v. Board of Liquor Control, 164 Oh St 275, Ohio Bar, November 28, 1955, we resort to the opinion of the trial judge and there find that he said:

“In an appeal of this nature it is not the function of this court to weigh the evidence nor to determine the credibility of the witnesses as upon a trial de novo.”

Thus it becomes clear that the Common Pleas Judge, acting fully in accord with all of our holdings since the Farrand case, heard the appeal as upon questions of law and not de novo. In so acting the trial judge erred. First syllabus of the above cases which we hereinafter refer to as the Andrews case.

The rehearing will be allowed, the cause reversed and remanded to the Common Pleas Court for further proceedings according to law.

This court now has pending several such appeals as here involved which will be controlled by the Andrews case and others will come to us which may be affected not only by the foregoing case, but by certain provisions of §119.12 R. C., as effective October 21, 1953, and Amended Senate Bill No. 71, amending §§2501.02, 2505.21. R. C., effective October 1, 1955. The former section was considered briefly and in part only and the latter not at all in the Andrews case.

We are hopeful that the legal profession, and possibly the Supreme Court, in the light of the foregoing legislation, will give further consideration to the impact of the Andrews opinion upon future procedural questions in appeals from orders of administrative agencies and particularly, the Board of Liquor Control.

The Andrews case, although it says that the review in the Common Pleas Court is not a complete de novo hearing, holds, in effect, that it is a modified de novo trial.

It should be noted that the Andrews decision did not reverse the Farrand case which holds:

“1. The word ‘appeal,’ as used in §154-73 GC, means the proceedings whereby a court reviews the action or decision of an administrative agency and affirms, reverses, vacates or modifies an order of the agency complained of in the appeal. The court may not substitute its judgment for that of the agency but is confined to determining the rights of the parties in accordance with the statutes and other law applicable.
“2. The word ‘appeal,’ as used in §154-73 GC, does not authorize a trial de novo of the matter which was before an administrative agency ”

Our holding in the Farrand case was that the Common Pleas Court, in appeals from an administrative agency, when the record had been made up from the transcript of evidence before the agency together with original testimony taken in the Common Pleas Court, was required to consider the appeal, in part, at least, as upon a de novo trial. The bases for this decision were: (1) That the section provided that the hearing shall proceed as in the trial of a civil action. (Emphasis ours.) Law appeals do not so proceed. (2) That it was illogical to hold that the Common Pleas Court could consider in a law review evidence taken originally in that court which was never before the Board. Judge Turner, in the opinion of the Court, Chief Justice Weygandt only, dissenting, in the syllabus, discarded our theory and held as we have heretofore quoted. We, and, no doubt, the Common Pleas Courts, have followed the Farrand case in scores of cases and were of opinion that the Amendment to §145-73 GC in 1951 did not change the type of appeal.

Former §145-73 GC, as amended in 1951, §119.12 R. C., makes but two material changes in the statute which was construed in the Farrand case: (11 It spells out the degree of proof to be found as a prerequisite to the judgment; and in addition to an affirmance, reversal, or modification of the order of the Board, (2) The court may make such other ruling as is supported by reliable, probative, and substantial evidence and is in accordance with law. The form that the judgment may take is common to law appeals. Section S, Article IV, Ohio Constitution; §§2505.24, 2505.27 R. C.

Insofar as we are cognizant, the Andrews opinion is the first that has made the degree of proof the test in determining whether or not an appeal should be heard de novo or as upon a law review. Determination of different degrees of proof is made in many appeals which are recognized as upon questions of law, viz., all civil cases where the court on review tests the record, in its entirety, to determine if the judgment is manifestly against the weight of the evidence; in criminal cases where the test is whether or not the evidence reaches the degree of proof required,—beyond a reasonable doubt; reviews of orders of the Board of Tax Appeals and of the Public Utilities Commission where the Supreme Court determines whether the orders appealed from are reasonable and in which that court has said many times it will not substitute its judgment for the judgment of these Boards.

The Andrews opinion draws considerable support for its conclusion that the appeal there under consideration was not strictly upon law and fact because, by the provision of §119.12 R. C., the appeal is heard in the Common Pleas Court upon the record as certified by the agency and such additional evidence as the court may admit. In this connection, attention is directed to the provisions of Amended Senate Bill No. 71, §2505.21 R. C., in which marked change is made as to the composition of the record in appeals on questions of law and fact. The record now in such appeals is restricted to and consists of:

“Such part of the record made in the trial court as any party may present to the court and such additional evidence as upon application in the interest of justice, the court may authorize to be taken, such evidence to be presented in the manner and form prescribed by the court.”

Thus, in all appeals on questions of law and fact, the record in the appellate court is made up in part, or in whole, from the record below.

Amended Senate Bill No. 71, §2501.02 R. C., also defines certain classes of actions upon which appeals on questions of law and fact may be prosecuted and restricts these classes of actions to ten in number, none of which includes the class of cases arising under the administrative code. The section further provides:

“In all cases not falling within the classes designated above the court of appeals shall have jurisdiction to proceed as in an appeal on questions of law only.”

We realize that this section, in the first instance, is considering only appeals from courts of record inferior to the Court of Appeals, but the language just quoted is all-inclusive. This legislation having been enacted subsequent to the amendment to §154-78 GC, in 1851, and of October 21, 1853, may have some effect in the construction of the statute controlling subsequent appeals.

After the opinion in the case of Corn v. Board of Liquor Control, 160 Oh St 9, holding that the Court of Appeals had no jurisdiction to entertain an appeal of the Board of Liquor Control from an adverse judgment of the Common Pleas Court, the Legislature enacted Amended §119.12 R. C., effective October 21, 1953. It is reasonable to assume that the Legislature in granting to the Board the right of appeal to the Court of Appeals intended to accord to it the same right as to a permit-tee, if an appellant. The Amendment reads:

“Such appeals may be taken either by the party or agency and shall proceed as in the case of appeals in civil actions as provided in §2505.01 to §2505.45, inclusive, K,. C. Such appeal by the agency shall be taken on questions of law relating to the constitutionality, construction or interpretation of statutes and rules and regulations of the agency and in such appeal the court may also review and determine the correctness of the judgment of the court of common pleas that the order of the agency is not supported by any reliable, probative and substantial evidence in the entire record.” (Emphasis ours.)

This language imposes on the appellate court on review of the entire record the same obligation as upon the Common Pleas Court on an appeal from the Board, viz., to determine if the judgment is supported by reliable, probative and substantial evidence. But the appeal is designated as an appeal on questions of law.

The Board of Liquor Control is a quasi-judicial body as to which Judge Turner in the Farrand case said, at page 224, 151 Oh St, of the opinion:

“The purpose of the General Assembly in providing for administrative hearings in particular fields was to facilitate such matters by placing the decision on facts with boards or commissions composed of men equipped with the necessary knowledge and experience pertaining to a particular field in providing for an appeal from the decision of such a board or commission. The General Assembly did not intend that a court should substitute its judgment for that of the specially created board or commission but did intend to confer a revisory jurisdiction on the court. Otherwise, the section would not have contained the provision, ‘in the hearing of the appeal the court shall be confined to the record as certified to it by the agency, provided, however, the court may grant a request for the admission of additional evidence when satisfied that such additional evidence is newly discovered and could not with reasonable diligence have been ascertained prior to the hearing-before the agency.’
“We are of opinion that this last quoted provision is inconsistent with a de novo hearing whereby the court substitutes its judgment for that of the agency which heard the facts.”

The language quoted by Judge Turner is still found in Amended §154-73 GC, §119.12 R. C. By the Andrews opinion there is taken away from administrative boards the benefit of the prerogative which has always been accorded even to a juror, viz., the right to determine the credibility of witnesses and placed it in the jurisdiction of the Common Pleas Courts of 88 counties.

We felt that we were well grounded in our opinion in the Farrand case but readily adopted the contrary conclusion enunciated by the Supreme Court. Subsequent legislation in our opinion, tends to strengthen the Farrand judgment, which, though not overruled in the Andrews case, has by that decision lost most of the reasons supporting the former judgment.

MILLER, PJ, concurs.

WISEMAN, J, not participating.


source: Caselaw Access Project

author: By THE COURT:

license: Public Domain

text:
    CLARK, Plaintiff-Appellant, v. DAVENPORT, Defendant-Appellee.
    Ohio Appeals, Second District, Clark County.
    No. 514.
    Decided October 30, 1954.
    Halloran, Rosenthal & Miley, Springfield, for plaintiff-appellant.
    Corry, Durfey, Martin & Browne, Springfield, for defendant-appellee.
   OPINION

By THE COURT:

Plaintiff-appellant applies for an extension of time of 30 days in which to file her assignment of errors, briefs and bill of exceptions, for the reason that the bill of exceptions and transcript of testimony was not available to counsel until September 25, 1954.

The time within which the appellant should file her bill of exceptions under §2321.05 R. C. has elapsed. The requirement of the statute is mandatory. We have no power to waive the requirement. Hornbeck and Adams, 1941 Supplement Trial and Appellate Practice in Ohio, Page 54 and many cases there cited, most of which are from this court.

The application must be denied.

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


text:
    BROWN AND CALVERT FIRE INSURANCE CO., Plaintiff-Appellees, v. FOLLROD et, Defendants-Appellants.
    Ohio Appeals, Second District, Madison County.
    No. 208.
    Decided February 18, 1956.
    Wiles & Doucher, Columbus, for plaintiffs-appellees.
    Jackman & Nichols, London, for defendants-appellants.
   OPINION

By THE COURT:

Three motions have been filed in this appeal which we designate Nos. 1, 2 and 3 in the chronological order in which they have been filed.

No. 1 is a motion of plaintiffsr'appellees to dismiss the appeal upon the contention that the order appealed from is not a final order.

Motion No. 2 is by the appellant, Ray Follrod, for an order reversing the order of the Common Pleas Court made on October 14, 1955, for the reason that appellees have failed to file a brief within 15 days after December 23, 1955, as required by Rule VII.

Motion No. 3, filed by defendant-appellant, Roy Follrod, is for an order “staying or suspending the final order of the Common Pleas Court entered on October 14, 1955, in the proceeding wherein a judgment erroneously entered August 8, 1953, was certified to the Bureau of Motor Vehicles under the financial responsibility law and for the reversal of which this appeal has been filed/’

Counsel for appellees, on motion No. 1 cite no authority in support of the contention that the order sought to be appealed from is not final. It answers the definition of a final order as found in §2505.02 R. C. in that it affected a substantial right, determined the action and prevented a judgment. Without respect to the reason upon which the Court predicated its order, the effect was a dismissal of appellant’s petition,—a final order. Eagan v. N. Y. C. & St. L. Ry. Co., 5 O. C. C. (N. S.) 482, Cox v. Cox, 104 Oh St 611.

The first motion will be overruled.

The second motion will be overruled for the reason that with or without a brief on the part of the appellees, the order of the Common Pleas Court may not be reversed by default. It is incumbent upon appellant to establish prejudicial error in the entering of the order from which the appeal is prosecuted. The burden on an appeal is not upon the appellee, but upon the appellant, which burden cannot be shifted by any default of the appellee.

The principle purpose of Rule VII of this Court is to expedite the adjudication of appeals. Its enforcement penalizes an appellant for failure to file briefs within the rule by dismissing his appeal. The only penalty that appellee may suffer is in the refusal to entertain his briefs or to refuse to defer the hearing of the appeal though he may not have filed briefs.

The third motion seeks a stay of the final order of the Common Pleas Court of October 14, 1955, wherein a judgment against defendant-appellant of August 8, 1953 was certified to the Bureau of Motor Vehicles under the financial responsibility law. (Emphasis ours.)

It is said that the application invokes the provision of §2505.17 R. C. which provides, under certain conditions, that a final order may be stayed, on such terms as are prescribed by the Court in which the appeal is filed, or by a judge, thereof.

For the purposes of the motion, we assume that the appellant has invoked the right section of the Code and that he is entitled to whatever relief can be accorded if his motion is sustained.

The action of the Common Pleas Court which is made the subject of this appeal is the dismissal of appellant’s petition seeking the vacation of a judgment entered in behalf of plaintiffs-appellees and against this defendant-appellant, a joint defendant, Stanley Follrod. The grounds of the vacation are that the petitioner was a minor at the time judgment was entered and at the time of his action to vacate the judgment, and, that no lawful service of summons was made upon him in the action in which the judgment was taken nor was any guardian ad litem appointed to make defense for him. Upon this petition, summons was had upon the individual plaintiff, Phillip E. Brown, but none was secured on the Calvert Fire Insurance Company, the other plaintiff, although attempt was made to serve it at the address given by it at the time of the original action against defendants.

On November 30, 1955, the Court journalized its order dismissing defendant’s application and petition for vacation for the reason that no service of summons had been made on the judgment creditors and therefore, the Court had no jurisdiction with respect to said motion. On October 14, 1955, the trial judge had ordered that the Clerk of the Common Pleas Court send a certified copy of the judgment of plaintiffs against defendant-appellant, Ray Follrod, to the Ohio Bureau of Motor Vehicles.

We recognize upon the facts appearing that there are certain equities which appear to be favorable to the appellant and certain harm which may result to him by reason of the certification of the judgment to the Registrar of Motor Vehicles.

The order of October 14, 1953 was not a final order. If it were, appellant has not saved the right to test it because the notice of appeal is not filed within time.

The obligation of §4509.35 R. C. to certify a copy of the judgment to the Registrar of Motor Vehicles is enjoined upon the Clerk, a ministerial duty. It is a mandatory requirement when the conditions of the section obtain, namely, that a judgment debtor has failed within 30 days to satisfy a judgment against him, and written request has been made by the judgment creditor, or his attorney, for the forwarding of the certified copy.

Of course, the order of the Court upon the request of counsel for the judgment creditors afforded direction to the Clerk to do that which the statute required him to do.

No relief can be afforded appellant from the specific provisions of §4509.35 R. C., until the judgment of August 8, 1953, is suspended or vacated. The procedure to accomplish vacation of a judgment is recognized by counsel for appellant, set out in the statutes and discussed in an opinion from this Court, Canal Winchester Bank v. Exline et al, 61 Oh Ap 253, wherein is cited a leading case, although from a nisi prius court, Metzger v. Zeissler, 13 N. P. (N. S.) 49. The Exline case involved the vacation of a judgment during term, but the discussion therein is general.

The trial judge, had it exercised jurisdiction, if it found that defendant-appellant made a prima facie case supporting his petition should have suspended the judgment and held it in abeyance until issues could have been made up and determined as to the right to have the judgment vacated. Notice of such action transmitted to the Registrar of Vehicles, no doubt would have stayed any action on his part.

This Court may not enter an order suspending or vacating the judgment against appellant. The appeal here on question of law is from the dismissal of appellant’s petition. The order in this Court, if we support the claim of appellant, will be a reversal of the dismissal of the petition and a remand with instructions to entertain, consider, and pass upon the petition. At this juncture we may not resolve any issue which might be joined on the averments of the petition. In other words, no order that we could make on this appeal could affect the validity of the judgment sought to be vacated. Without such an order, we would have no power to stay the effect of the certification of the judgment to the Registrar of Motor Vehicles.

The third motion will be overruled.

We will entertain the appeal on its merits which is ready for presentation, on February 23, 1956.

MILLER, PJ, HORNBECK, J, concur.

WISEMAN, J, not participating.


author: Per CURIAM:

text:
    TEUBL, a Minor, Plaintiff-Appellant, v. WIDDOWSON, Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22540.
    Decided December 8, 1952.
    Coleman Kiss, Albert H. Kiss, for plaintiff-appellant.
    McConnell, Blackmore, Cory & Burke, S. Burns Weston, of Counsel, for defendant-appellee.
    (NICHOLS, PJ, GRIFFITH and PHILLIPS, JJ, of the Seventh District, sitting by designation in the Eighth District.)
   OPINION

Per CURIAM:

Plaintiff appealed on questions of law from a judgment of the Court of Common Pleas of Cuyahoga County, entered on the verdict of the jury in favor of the defendant in an automobile accident case.

Under the pleadings and the evidence, the issues of the negligence of the defendant, as well as the contributory negligence of the plaintiff arose and were properly submitted to the jury by the trial court. In order to refute any claim of contributory negligence upon the part of the plaintiff, her counsel offered evidence for the purpose of showing that the driver of the automobile in which the plaintiff was riding was an experienced and careful operator. In offering the disputed testimony, counsel for plaintiff stated in the presence of the jury:

“The purpose is to show that a man who had been army-trained and had done overseas duty, the manner and method in which he drove an automobile. A jury, I think, ought to know something about this man because he isn’t here to testify himself.”

Plaintiff having opened the door as to the question of the competency of the driver, made the disputed evidence competent and admissible, which disposes of the plaintiff’s sole assignment of error. The judgment of the common pleas court is affirmed. Exceptions.

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


author: By THE COURT.

text:
    ANDERSON, Estate of, In re.
    Ohio Appeals, Second District, Franklin County.
    No. 5228.
    Decided February 16, 1956.
    Jenkins, Williams, Wendt, Murray & Deeg, Richard C. Deeg, of Counsel, Columbus, for appellee, Opal Green.
    Sater & Sater, Kenneth L. Sater, of Counsel, Columbus, for appellant, Edith R. Funke, Executrix and Beneficiary.

      (FESS, J, of the Sixth District, sitting by designation in the Second District.)
   OPINION

By THE COURT.

Appellant, who is Executrix of the Estate of Edith Hope Anderson and a legatee under her will, filed her first, final and distributive account in which it appeared that the net proceeds of the sale of certain real estate mentioned in Item 2 of the will of decedent were distributed to the ten named legatees in said item. Thereafter, Opal Green, one of the named legatees, filed exceptions to the account claiming that the Executrix had erred in her account and in failing to pay to exceptor rents received by the Executrix from the real estate which was sold following the death of testatrix. The total amount of the rents collected from the real estate was approximately $2200.00 which sum was distributed to appellant under Item 7, the residuary clause of the will of decedent. Edith R. Funke, as Executrix and legatee, moved to dismiss the exceptions. The Court overruled appellant’s motion.

At the outset we direct attention to the order from which the appeal is taken. It reads, “ordered that said motions” (to dismiss the exceptions to Executrix’s account) “be and they hereby are overruled.”

“And movants not desiring to plead further, it is further ordered that said exceptions are duly and properly filed.”

Obviously, this is not a final order.

Had the entry fully responded to the written decision of the trial judge, it would have disposed of the exceptions favorably to the exceptor and have been final and appealable. This is exemplified by the last sentence of the opinion:

“It, therefore, follows that the rents collected between the date of the death of the testatrix and the sale, belong to the legatees named in Item 2 of the will and the executrix should account therefor.”

The situation can be corrected by remanding the case for a nunc pro tunc entry and when it is returned to this Court our opinion herewith can be journalized. If this cannot be agreed upon the matter may be taken up with the Court.

The issue between the parties must be resolved by construction of Items 2 and 7 of the will of Edith Hope Anderson. The second item of the will,

“I give, devise and bequeath to:
“Evelyn Wilson Hammond
“Lorene Wilson Schaeker
“Opal Stanley Green
“Helen Mae Stanley Wyatt
“Paul E. Stanley
“Eileen Saulters Cline
“George S. Thompson
“Harold D. Robinson
“Stanley J. Robinson
“Glen S. Bagley
“the monies realized from sale of 1159 Dennison Ave. and 1097 and 1099 16th Ave.
“Seventh: All residue of my property both real and personal which I may own or have the right to dispose of at time of my decease I give devise and bequeath to Edith Funke—same to be disposed of according to my wishes and of which she knows.”

The estate of decedent was solvent. The assets far in excess of indebtedness. The executrix held the real estate described in the second item of the will for several months and pursuant to the implied authority and direction of Item 2 sold the real estate therein described and distributed the net proceeds among the ten named legatees in the item. All of the legatees were properly before the court in the sale of the real estate; no one objected and neither individually nor collectively was election made to take the real estate under §2127.31 R. C.

The trial judge held that Item 2 of the will was, in effect, a devise of the real estate to the ten persons named in that item. This conclusion was reached upon the theory that as the individuals named in Item 2 had the right to take the real estate under the statute the title to the real estate vested in the named persons.

It is our judgment that the meaning of Item 2 of the will is clear and requires no resort to rules of construction. The item constituted ten legacies, probably specific, but whether specific or demonstrative is of no effect on the question presented. It must be assumed that the testatrix knew the distinction between “monies realized from sale of real estate” and rental received therefrom. The bequest is for the monies realized from the sale of the described real estate and not the real estate.

In the case of Schaupp et al v. Jones et al, 3 O. O. C. N. S. 176, the court held that

“Where a testator provides that land shall be sold and the proceeds thereof divided equally among four persons, no one of the devisees acquires title to the property under the will, but the devisees might, by all uniting, avoid a sale by the executor, and take the premises instead of the proceeds therefrom.”

Here, if the statute has any application to the facts, which we do not hold, the legatees did not avail themselves of its provisions. The administration of the estate was carried on and completed without interposition of any of the legatees to assert any other or different right than his proportionate share of the monies realized from the share of the real estate. If it is conceivable that an election to take under the statute would have changed the character of the interest granted by Item 2 of the will, no such action was taken.

We can find no support in the specific language of Item 2 of the will of decedent for an interpretation that it was a devise in any sense of the term. The rents were no part of the monies realized from the sale of the real estate and passd to Edith R. Funke under Item 7, the residuary clause of the will.

Order as hereinbefore indicated.

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


text:
    LANUM, Plaintiff-Appellant, v. BEATTY, Defendant-Appellee.
    Ohio Appeals, Second District, Greene County.
    No. 542.
    Decided March 5, 1955.
    Robert Dow Hamilton, Columbus, for plaintiff-appellant.
    Robert H. Wead, Philip Aultman, Xenia, for defendant-appellee.
   OPINION

By THE COURT:

This is an appeal on questions of law from a judgment of the Common Pleas Court entered upon a directed verdict. Appellant had appealed from an order of the Industrial Commission disallowing appellant’s claim upon re-hearing for the reason that claimant was not an employee of J. L. Beatty, aka Roy Beatty, in the course of the alleged employer’s usual trade or business.

Although the transcript of the testimony taken on the re-hearing was not read to the jury and there was no motion for directed verdict, the Court acting on its own motion, so directed the verdict.

Although this was somewhat irregular, it does not change the ultimate question, namely, whether the record offers any proof whatever of the essential that the appellant at the time of his injury was hi the employ of J. L. Beatty in the course of his usual trade or business.

We have read the record in its entirety and find no proof whatever from which it may be inferred that the work which appellant testifies he was doing when he was injured was in the usual course of the occupation of his employer. The evidence is meager as to the purpose in tearing down the barn and as to its ownership. There is some evidence from which it could be inferred that the barn was owned by Mr. Beatty, although he did not own the land upon which it stood. However, Mr. Beatty was engaged in the business of farming two miles from the place where applicant was employed, there is no showing that this barn, standing or torn down, was, ever had been, or was intended to be, used in connection with Mr, Beatty’s farming operation.

In the situation developed, under the second syllabus of State ex rel. Bentman, Attorney General v. Christen, 128 Oh St 56, the appellant produced no evidence on all material elements of his case which would have required it to be presented to the jury for verdict.

The judgment will be affirmed.

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


author: Per CURIAM.

text:
    McCRORY STORES CORPORATION, Appellant, v. WALKER, Appellee.
    United States Court of Appeals, Sixth Circuit.
    No. 12216.
    Decided February 16, 1955.
    P. Eugene Smith, Dayton, for appellant.
    Harry P. Jeffrey, Dayton, for appellee.
    Before SIMONS, Chief Judge, and ALLEN and MARTIN, Circuit Judges.
   OPINION

Per CURIAM.

This appeal by McCrory Stores Corporation from a judgment entered on the verdict of a jury, awarding $16,624.43 to the appellee as damages for personal injuries received as the result of her fall in the aisle of appellant’s store in Dayton, Ohio, has been heard and duly considered;

And it appearing that there was substantial evidence of negligence upon the part of the appellant in piling boxes in front of the banister of its store in such manner that an inference could properly be drawn by the jury that one of the boxes against which appellee stumbled had become loose from the pile and fallen to the floor, thus causing appellee’s injury;

And it being the law of Ohio that the operator of a store who invites people into his premises to transact business must exercise toward them ordinary care to maintain the premises in a reasonably safe condition, Campbell v. Hughes Provision Co., 153 Oh St 9, 41 O. O. 107, 90 N. E. (2d) 694; J. C. Penney Co., Inc. v. Robison, 128 Oh St 626, 193 N. E. 401, 100 A. L. R. 705; S. S. Kresge Co. v. Holland, 6 Cir., 158 F. (2d) 495, 498, and Ohio cases there cited;

And there being substantial evidence to support the verdict of the jury;

The judgment of the District Court is ordered to be affirmed.


author: By BARTLETT, J.

text:
    McCLINTOCK et, Plaintiffs, v. CAIN, Clerk, Defendant.
    Common Pleas Court, Franklin County.
    No. 194388.
    Decided December 19, 1956.

      John E. Palcich, Columbus, for plaintiffs.
    Chalmers P. Wylie, City Atty., Russell Leach, Chief Counsel, Harrison Smith, Jr., Special Counsel, Columbus, for defendant.
   OPINION

By BARTLETT, J.

MOTION OF DEFENDANT SUSTAINED FOR JUDGMENT OF DISMISSAL AT CLOSE OF PLAINTIFFS’ CASE AT PLAINTIFFS’ COSTS.

The plaintiffs in this action seek to enjoin the defendant, as Clerk of said City, from certifying to the Council of the City of Columbus the transcript of the proceedings of the Board of County Commissioners, ordering the annexation to said city of some 359 acres situated in Sharon Township of this county, and the accompanying map or plat, and to further enjoin the defendant from any further proceedings with respect to said proposed annexation.

The case has been submitted upon the pleadings, the evidence and the briefs of counsel.

At the close of plaintiffs’ case, counsel for the defendant moved that the Court grant a judgment of dismissal and counsel for the plaintiffs and the defendant have submitted their respective briefs on said motion.

We shall first discuss certain controlling principles in a case of this nature, and thereafter will determine the specific issues involved, in the light of such principles and the decisions of the courts thereon.

The burden of proof is upon the plaintiff seeking an injunction in an annexation petition. Lamneck v. Cain, Case No. 191, 454, dockets of this court, by Gessaman, J.; Roush v. Barthalow, No. 179742, dockets of this court (105 N. E. [2d] 85), Rutherford, J., sitting in this county by assignment. The Roush case was affirmed by the Court of Appeals in 104 N. E. (2d) 697, and the appeal therefrom was dismissed by the Supreme Court in 156 Oh St 452. See also 21 O. Jur. Injunctions, Sec. 202, p. 1280.

Clear proof, rather than mere preponderance of the evidence, is required in such cases. Draper, J., in Dunford v. Cain, Case No. 194,082, dockets of this court; 21 O. Jur., Injunctions, Sec. 204, p. 1280.

“To entitle a party to an injunction his right must be clear. It is said that no rule in equity is better settled than this. Injunctions are issued to prevent injury to clear rights, and the cases which will justify interference of this kind are those of clear, incontestable, well defined rights. Courts will not exercise this extraordinary authority when the right is doubtful or the facts are not definitely ascertained.” 21 O. Jur. Injunctions, Sec. 13, p. 1000.

“The extraordinary character of the remedy of injunction, and the danger that its use in improper cases may cause serious loss or inconvenience to an innocent party, require that the injunctive power shall be exercised sparingly and cautiously and only after thoughtful deliberation.” 21 O. Jur. Injunctions, Sec. 18, p. 1007; Arthur Murray Studios v. Witter, 62 Abs 17; Ohio Midland Light and Power Co. v. Columbus and Southern Ohio Electric Co., 69 Abs 56.

“The burden is upon one who seeks to enjoin the action of a public board in the exercise of its discretion, to show with that clearness which is always necessary to move a court of equity to interfere, a state of facts which would constitute an abuse of discretion.” 21 O. Jur. Injunctions, Sec. 202, p. 1277.

“The principle is well stated in the case of Lessee of Coombs and Ewing v. Lane, 4 Oh St 112. In the first syllabus, it is laid down as follows:

“ ‘In respect to official acts, the law will presume all to be rightfully done, unless the circumstances of the «ase overturn this presumption; and, consequently, acts done which presuppose the existence of other acts to make them legally operative, are presumptive proof of the latter.’ See Dalrymple v. State of Ohio, 5 C. C. (n. s.) 185;” Libby v. Paul, Recorder 17 N. N. (n. s.) 433, 437, wherein it was held that
“The truth of the recitals contained in the resolutions (of the township trustees with reference to incorporation of a village) relating to this matter will be presumed.”

The petition in the instant case avers each of the plaintiffs to be a “person interested” in said annexation as contemplated by §§707.11 and 709.07 and other related sections of R. C. The plaintiffs, Mr. and Mrs. McClintock, are adult freeholders residing within the area proposed to be annexed by said petition, and all the other plaintiffs are freeholders outside the territory proposed to be annexed, but residing immediately adjacent thereto.

In the case of Markos v. Cain, No. 191,704, dockets of this court, the evidence disclosed the plaintiff Markos was not a resident of the area sought to be annexed, the same as the plaintiffs in the instant case, except the McClintocks; and Gessaman, J., in the Markos case construed the term “person interested” as used in such statute, “to mean that to qualify as a person interested, one’s rights must be affected substantially, but not remotely, by the annexation itself.”

In the case of Branson v. Cain, No. 194,081, dockets of this court, again the evidence showed the plaintiff was not a resident of the area proposed to be annexed, and Draper, J., ruled:

“In order for a plaintiff to maintain such type of action, he must not only show his interest in the action but how the alleged annexation adversely affects his legal rights.”

To the same effect, see Draper, J., decision in the case of Dunford v. Cain, supra.

“1. The weighing of various factors in connection with a proposed annexation of territory to a municipality, such as the possible interference with existing school facilities, is a political rather than a judicial function, and in a suit to restrain an annexatin proceeding the court will not consider the merits of the proposed annexation but only the legality of the proceeding.” Pickelheimer v. Urner, Auditor, 29 N. P. (n. s.) 547, affirmed, 45 Oh Ap 343.

Matthews, J., in the Pickelheimer case on p. 548, says:

“(1; There are allegations in the petition showing the great inconvenience to the plaintiff and others by the annexation because of the transfer from one school district to another, resulting from requiring children to travel several times as far over a much travelled road in order to reach the nearest school building in the Cincinnati district, which, it is alleged, is already overcrowded. While this result could be obviated by an arrangement under §7734 GC, between the two school districts, it is assumed for the purpose of this demurrer that the interference with existing school facilities is a factor that should be considered in determining whether annexation should or should not be approved. The court is of the opinion, however, that the weighing of this factor is a political rather than a juridical function * *

Continuing on p. 548, Matthews, J., says:

“The syllabus to Cole v. Watertown, 174 N. W. 91, says:
“ ‘The power to add territory to or take it from a municipal corporation is a political power vested in the legislature and in those to whom the legislature delegates it, and courts exercising such delegated power are limited to powers given by express provisions of statute.’
“In so far as the allegations of the petition set forth facts tending to show that the decision of the commissioners is unsound on the merits, the Court is of the opinion that they present no basis for judicial relief. The legislature has delegated that power to the commissioners and not to the courts.”

On p. 553 of his opinion Matthews, J., further says:

“Under our statutes the action of two governmental bodies is necessary to effect its annexation. These two bodies are the County Commissioners and the Municipal Council. The action of the County Commissioners in approving the annexation has the effect of a consent to withdrawing of the territory from the unincorporated and to its incorporation into the incorporated territory. It is, however, only an approval or consent, and in the case of annexation proceedings initiated by a petition of freeholders, the petition approved by the County Commissioners is an offer made to the municipal corporation and is without effect until the municipal council accepts it.”
“4. The claim that the annexation of territory will reduce the tax duplicate and thereby curtail the revenue of a village, is not a valid objection, since the statute provides a method whereby an adjustment of financial matters between the municipalities is to be made.” Village of Brook Park, Ohio, v. City of Cleveland et al, 26 O. O. p. 536.

Sec. 3311.06 R. C., provides:

“* * * when territory is annexed to a city * * *, such territory thereby becomes a part of the city school district * * *, and the legal title to school property in such territory for school purposes shall be vested in the board of education of the city or school district * * *. An equitable division of the funds and indebtedness between the districts involved shall be made under the supervision of the superintendent of public instruction, whose decision shall be final.” (Emphasis ours.)

Again, as pointed out by Judge Matthews, these political matters have been committed to an administrative official rather than the courts.

Also, as suggested by Matthews, J., in the Fickelheimer case, any unusual hardship or inconvenience, resulting from requiring children to travel too far or where one of the schools is overcrowded, could be obviated by an arrangement between the two school districts, under §3327.04 R. C. (§7734 GC), by a contract for the admission or transportation or both of pupils attending the school in question but residing outside the area proposed to be annexed, and in which the school is located.

“5. The fact that the incorporation of territory of a township into a hamlet may result in increased taxation in other parts of the township cannot avail in equity to prevent the organization and incorporation thereof under Sec. 1561a, Rev. Stat., if the people residing in its limits so desire, especially where the advantages resulting to its inhabitants in the way of public improvements, police protection and better government overwhelmingly counterbalance the resulting loss to persons residing without, in the township from which the territory is separated.” R. Hall v. J. C. Siegrist, Recorder, 13 Ohio Dec. 46.

On page 58 of the Hall case, Neff, J., says:

“Passing now to a consideration of the next objection, which is, that it would not be right, just or equitable for the prayer of the petition to be granted. Upon the proof it appears, indeed the plaintiff says that the only objection which he has to the incorporation of this territory into a hamlet is that it would increase, or might increase his taxes. There is nothing to show that he would be especially affected or that any peculiar result as to the increase of taxes would arise as to him that would not be sustained equally by those owning property in other portions of the township.”

Neff, J., on page 59 of his opinion, cites with approval Rouseville Borough, 21 Pa. Co. Ct. 262, which holds among other things:

“The mere disarrangement of school districts and election districts in a township is no ground for refusing to incorporate a borough.” and on the same page of his opinion, Neff, J., cites Smithfield Borough, 23 Pa. Co. Ct. 583, which holds:
“It is no objection to the incorporation of a borough that it will necessitate a rearrangement of school districts and polling places, and that the financial burdens of the rest of the township may be slightly increased.”
“In determining whether a borough should be incorporated, the court will consider the subject broadly, having in view the highest interests of all concerned, and not only the present situation, but the needs and growth of the locality in the future.”

Neff, J., then concludes on p. 60 of the Hall case, supra,

“Both upon principle and authority, therefore, I am of the opinion that the proposed incorporation of this Hamlet of Bay cannot be restrained because it might result in some slight increase in the taxes of the plaintiff.”
“Now looking to the broader question, as to whether it is equitable and just that this incorporation should be effected.
“* * * Many advantages would, doubtless, result to the residents of this territory if they were permitted to form a more compact and energetic form of government than can be afforded to them by the loose and inadequate government which the township may provide. If that territory is organized into a hamlet, improvements can be introduced into the territory, which would be of great advantage to the residents of that territory. From the location of this territory, it is a matter of manifest destiny that in the near fuure large numbers of persons will reside there during the summer. Its situation is peculiar, peculiarly adapted to summer residences. It seems to me for the court to hold that the many advantages that would result both in the way of improvements and police protection and better government,—shall be denied to the residents of that territory because the incorporation of the territory would result in a slight increase in the taxes of the remaining portion of the township, would be a conclusion unwarrantable and unjustifiable; that the resulting loss to the persons nonresident in the proposed hamlet, are so overwhelmingly counterbalanced by the advantages which result to the inhabitants of the territory, that I am unable to say that the incorporation of the proposed territory into a hamlet would be unequitable and unjust. But whatever else may be said, to permit the organization of this territory into a hamlet would promote progress and would confer very material benefits on a large number of people, while to refuse to permit it to be organized into a hamlet would be tantamount to allowing a very slight inappreciable injury to the plaintiff, or to those similarly circumstanced with him, to avail against such manifest and important advantages. And, taking into consideration all these things, I am of the opinion that the incorporation of the proposed territory is not unjust or inequitable. It would, therefore, seem to me that the petition should be dismissed.”

The burden is upon one seeking an injunction to protect rights claimed by him to establish a greater right than any claimed by the defendants. Kovaliczky v. Istvanik, 16 Abs 263, motion to certify record overruled, December 26, 1935.

“1. The word ‘interest’ as used in §3532 GC (now §707.11 R. C.) allowing application for injunction with reference to the incorporation of villages, means that some legal right, title or interest of a resident of the territory newly incorporated will be adversely affected by the incorporation.” City of Lockland et al, v. Shaver et al, 59 Abs 600.

On page 602 of the Lockland case, Weber, J„ comments the court cannot be required:

“* * * to reserve to each municipality, according to its speculative future needs, such part of said territory as will tend to equalize the per capita tax valuation of all the municipalities. No such principle is expressly or impliedly contained in the statutes.”

In the case of City of Cincinnati v. Rost et al, 92 Oh Ap 8, Matthews, J., speaking for the Court of Appeals of Hamilton County on p. 11, says:

“We also agree with the interpretation of ‘person’ as used in §3532 GC (now §707.11 R. C.), made by the court in City of Lockland v. Shaver,” supra.

In the Markos case, supra, the plaintiff, not being a resident of the area sought to be annexed, claimed that if the annexation proceeds, “it will deprive said township of considerable taxable property;” and Judge Gessaman stated:

“We observe that every annexation substraéis considerable taxable property from one area and adds it to another. That fact, in and of itself, does not make the plaintiff a ‘person interested.’ ”

See to the same effect Ohio Edison Co. et al v. McElrath, Recorder, et al, 73 Abs 236, where township lost certain tax revenues by the incorporation of part of its territory into a village.

It was further ruled in the Edison case, supra:

“5. Speculation as to how the finances of a village may be handled, or how inadequate may be the income of a village, should not in itself determine the right to incorporate.”

“Nor is ground afforded for refusing a prayer for incorporation because some of those owning farm lands will be inconvenienced by reason of the fact that they do their shopping in a neighboring village and their social relations are maintained there.” Libby et al v. Paul, Recorder, supra.

The statutes of the Municipal Code, relating to the general subject of the creation of villages, and the annexation of territory to municipalities already created, are treated, for the purpose of construction, as one act, the course of procedure at the hearing before the County Commissioners, directed by §707.06 R. C. (§3521 GC), being applicable to each branch of the subject. Sec. 28, O. Jur. 880, §709.03 R. C. (§3549 GC); and Shugars v. Williams, 50 Oh St 297. Consequently the foregoing citations of authorities on incorporation of villages, apply as well to the annexation of territory to a municipality.

Plaintiffs assert that the annexation petition in the instant case involves part of the same territory proposed to be annexed to the City of Columbus which proposal was defeated by a substantial vote at the November election in 1954; and plaintiffs insist that by virtue of §709.17 R. c., “no further proceedings shall be had for at least five years,” to annex,said territory to the City of Columbus, after the defeat of said proposal in 1954.

The Ohio statutes provide two methods for the initiation Qf annexa,tion proceedings, one, §709.02 et seq, R. C., on application by citizens, and the other, §709.13 et seq, R. C., on application by a municipal corporation, by the passage of an ordinance seeking annexation. See. 709.17 R. C., requires that the question of annexation must be submitted to a vote by the electors of the area involved, where the proposal to annex territory is by ordinance of the municipality itself. No such election is required where the application to annex is by a majority of the adult freeholders residing in such territory.

The proposed annexation to the City of Columbus, which was defeated at the polls in 1954, was on an application of the city itself by ordinance passed by its council. The annexation proposal in the instant case is by petition of the resident freeholders of the area in question.

The mandate of §709.17 R. C. (§3561 GC), that “Thereupon all annexation proceedings shall be stayed until the result of the election is known,” “does not stay annexation proceedings as to which no election is required,” such as proceedings initiated by the freeholders. Roush et al v. Barthalow, Auditor, etc., et al, 105 N. E. (2d) 85. This case was affirmed by the Court of Appeals, 104 N. E. (2d) 697, and the appeal dismissed by the Supreme Court, 156 Oh St 452.

On page 88 of his opinion in the Roush case, Rutherford, J., says:

“The purpose of the election is not to determine whether or not the territory should be finally annexed as that is for the County Commissioners to determine but is a step to be taken by the Municipality as a condition precedent to their right to proceed.” * * *
“The fact that the people of the entire district voted for annexation to Gahanna does not give them that right, but only the right to place the matter before the commissioners within 90 days thereafter. This is the same right given to the majority of the resident freeholders of any given district upon the filing of a proper petition.” * * *
“Thus it appears that the legislature made provision for both annexation by municipalities and by individuáis, the former requiring an election to obtain the consent of the individuals while, in the latter case the consent appears from the signatures on the petition.”

In the case of State, ex rel. Loofbourrow v. County Commissioners of Franklin County, 132 N. E. (2d) 259, our Court of Appeals held:

“7. Upon completion of the hearing required by §707.06 and §707.07 R. C., requires the board of County Commissioners to exercise a discretion, and a writ of mandamus may issue to compel the exercise of such discretion.”

In the Loofbourrow case the annexation proceeding was initiated by the Village of Worthington by an ordinance of its council to annex certain territory, including the area in the instant case, and pursuant to the mandate of §709.17 R. C., the matter of such annexation to the Village of Worthington was placed on the ballot and approved by a substantial majority of the electors of the area sought to be annexed to Worthington. After such election the County Commissioners refused to act on said application for annexation, and our Court of Appeals allowed the Writ of Mandamus ordering the County Commissioners to exercise their discretion upon said annexation proposal of Worthington, after approval thereof by the electors of the area proposed for annexation; and, thereupon the County Commissioners refused to approve annexation of said area to Worthington.

This Court, therefore, holds that §709.17 R. C., has no application to an annexation proceeding initiated by the resident freeholders of the area affected, since the election required by said section is limited to annexation proceedings initiated by the municipality itself, and consequently the provision contained in said section that “no further proceedings shall be had for at least five years,” when the vote in the election is against annexation, does not stay annexation proceedings by the resident freeholders themselves.

This Court further holds that after said election in 1954 when the electors approved the annexation of certain territory to the Village of Worthington, the County Commissioners were still invested with the discretion to either allow or refuse said annexation of such territory to Worthington; and that in the exercise of that discretion said County Commissioners refused said application for annexation to the Village of Worthington.

Counsel for plaintiffs contend that the present action is in the nature of a proceeding in error as stated in Hulbert v. Mason, 29 Oh St 562, and at the same time, is an equitable proceeding for injunction as set forth in Geauga Lake Improvement Association v. Lozier, 125 Oh St 565.

In the case of Caito v. Cain, etc., No. 191,084, dockets of this court, Leach, J., after discussing the Hulbert case, supra, says:

“However, since the amendment of the statute all this has been changed by subsequent court decision;”

and then cites the opinion of Allen, J., in the case of Geauga Lake Improvement Assn., supra. It may be that the Hulbert case has not been expressly overruled, but the statute on which the Hulbert case was founded has been so materially changed that the Geauga Lake Improvement Assn, case based on the revamped statute, has superseded the Hulbert case.

In the Geauga Lake Improvement Assn, case, Allen, J., on page 574, says;

“Under §3535 GC (§707.14 R. C;), as it now exists, the injunction proceeding, with its question as to the inaccurate description of boundaries, the unreasonable size of the limits of the proposed corporation, and whether it is right, just or equitable that the prayer of the petition be granted, presents certain issues that we commonly describe as judicial. The function of the court in this case is to try an issue framed by pleadings in an injunction suit, according to the rules of procedure in injunction suits, to hear evidence and to administer justice according to that evidence adduced at the trial.
“The initial hearing before the commissioners is political, or administrative, but how does that fact divest the application for injunction of its judicial nature? (Emphasis ours.)

By virtue of §709.03 R. C., it is now well established that issues before the court in an annexation proceeding, are the same as those set out in §707.11 R. C., and referred to by Allen, J., in the Geauga Lake Improvement Assn. case.

We come now to the more specific issues raised by the respective plaintiffs, in the light of the controlling principles in a case of annexation proceedings, as stated in the numerous decisions of our courts in the cases heretofore noticed.

The McClintocks assert, among other reasons, that they are a “person interested” as contemplated by the statutes relating thereto, and that it is not just, right and equitable that the proposed annexation be granted, since they would become subject to the Columbus Income Tax, but no evidence was offered as their particular income that would be subject to such tax, and no evidence was offered that they would be especially affected or that any peculiar result as to the increase of their taxes would arise that would not be sustained by others in the area sought to be annexed. See the Hall v. Siegrist case, supra, and in that case Neff, J., reaches the conclusion that the proposed incorporation of the hamlet (same principle in annexation), cannot be restrained because it might result in some slight increase in the taxes of the plaintiff.

At the time of the hearing in this case it was a matter of common knowledge, as well as knowledge which the Court has virtute officii Fawick Airflex Co., v. United Electrical R. & M., 87 Oh Ap 371, dismissed for want of debatable question, 154 Oh St 106; 31 O. Jur. [3d] p. 40), that the tax rate on real property in Sharon Township was substantially higher than in the City of Columbus. To illustrate: the rate in Sharon Township was $26.20 per thousand dollar valuation, while the rate in Columbus was $21.40 per thousand dollar valuation; and there will be a reduction in 1957 in said rate in Columbus of $1.60 compared to ,70c per thousand in Sharon Township. It stands to reason that this substantial reduction of the real property tax in Columbus was made possible by the income tax of which the plaintiffs McClintocks complain.

It is understandable that the plaintiffs, Watkins and Hewlett, who do not reside in the territory proposed to be annexed, make no complaint as to the Columbus Income Tax, since, as members of the faculty of Ohio State University, they are already subject to such tax, as well as being burdened with the high real property tax of Sharon Township. Moreover, the courts must know as judges what they know as men. Leonard v. State, 100 Oh St 456; 31 O. Jur. (3d) 40; and it is well known that services such as sewers and water cost more in the suburban areas than in the city which provides such services.

Let us now examine further the complaints of the plaintiffs Mc-Clintocks as to the reasons why they are opposed to annexation to Columbus. They assert that the City of Columbus cannot provide adequate police protection for their area, and does not have adequate facilities to provide fire protection for their area, as well as adequate road service. The Court is of the opinion, however, that the weighing of these factors is a political rather than a juridical function, and presents no basis for judicial relief. See case of Pickelheimer v. Urner as Auditor, supra.

However, if it be assumed that these are factors that should be considered in determining whether the annexation should or should not be approved, the Court cannot say that the factual evidence in this case is clear and convincing that such services as they presently exist are superior to such services as they, in all probability, would be if the annexation were completed. It stands to reason that such services would be more likely to improve in the future, under the facilities of a metropolitan city like Columbus, than they would under the township form of government, which is ill adapted to serve the needs of a fast-growing community.

In determining whether the annexation in this case is just, right and equitable, the Court will consider the subject broadly, having in view the highest interests of all concerned, and not only the present situation, but the needs and growth of the locality in the future.

The other objections raised by plaintiffs McClintocks, are not only of a purely political nature, but no proof whatever has been offered in support thereof, or that such factors will be detrimental or cause real injury to the complainants.

Both upon principle and authority, therefore, this Court is of the opinion that the proposed annexation should not be restrained because of any or all the grounds advanced by the McClintocks, the only plaintiffs who reside in the territory proposed to be annexed to Columbus.

Let us now examine the reasons advanced by the other plaintiffs against said annexation in the light of the fact that they do not reside in the area proposed to be annexed.

The chief objection lodged against said annexation proposal by the plaintiffs who are non-residents of the area sought to be annexed, is that they have children attending the Sharon Elementary School which is located within the area proposed to be annexed, and that said school is the only elementary school advantageously located for their children due to its proximity to their residences.

It has been repeatedly held by the courts that the mere disarrangement of school districts in a township is no valid ground for refusing to annex territory within said township, to a municipality (or to incorporate a municipality within said township based on the same principles) ; and that no valid objection can be lodged against such annexation, because it will necessitate a rearrangement of school districts and the financial burdens of the rest of the township will be somewhat increased. Hall v. Siegrist as Recorder, supra, citing with approval two Pennsylvania cases. In the Pickelheimer Case, supra, which was affirmed by the Court of Appeals of Hamilton County, Matthews, J„ ruled that the weighing of this factor is a political rather than a juridical function, and presents no basis for judicial relief.

The Pickelheimer case presented a problem very similar to the one suggested in the instant case, in that the petition averred great inconvenience to the plaintiff and others by the annexation because of the transfer from one school district to another, resulting from requiring children to travel several times as far over a much travelled road in order to reach the nearest school building in the Cincinnati district, which, it was alleged, was already overcrowded; but it was very wisely observed by Matthews, J., that this result could be obviated by §7734 GC (now §3327.04 R. C.) by a contract between the two school districts for the admission or transportation or both, of pupils attending the school in question, but residing outside of the area to be annexed in which said school is located.

Then, too, §3311.06 R. C., provides:

“When territory is annexed to a city, * * * becomes a part of the city school district * * * an equitable division of the funds and indebtedness between the districts involved shall be made under the supervision of the superintendent of public instruction, whose decision shall he final.” (Emphasis ours.)

It is the opinion of this Court that these two sections of the school code afford a legal remedy that will solve the problems of the plaintiffs’ children attending this same school until other arrangements may be made. If so, their problems afford no basis for an injunction.

It is essential to the right of one to an injunction that it be averred and proved that the plaintiff has no adequate remedy at law. White v. Columbus, 27 Abs 489.

It has been argued by counsel for the plaintiffs that the several decisions by other judges of this court cited herein were erroneous; and that this branch of the court should not make the mistake of following such decisions. We are not inclined to the view that such decisions were erroneous, but this branch of the court might well have differed with the opinion of some of his colleagues at the time, but is disinclined to overrule any such decisions unless clearly satisfied such decision or decisions were erroneous.

“The doctrine of stare decisis, however, comes into operation, and makes a court disinclined to overrule a former decision. It has been said to be a general rule and practice for a judge of the Common Pleas Court to follow the former decisions of that court that are unreversed, even though made in a different case.” 11 O. Jur. Courts, Sec. 128, p. 774; Heintz v. Coldwell, 18 O. D. N. p. 725, 6 O. L. Rep. 45; Merrick, et al. v. Merrick, et al., 57 Abs 49.

“It is very evident that the simplest justice to our predecessors as well as the public, should prevent us from interfering with decisions deliberately made, merely because a difference of opinion might exist between them and us upon a doubtful and difficult question of construction.” Ranney, J., delivering the opinion of the Court, Kearney v. Buttles, 1 Oh St 362, 366; 11 O. Jur. Courts, Sec. 138, p. 786.

Under the evidence at the close of the plaintiffs’ case, it is this Court’s finding that the plaintiffs have not first established any interest which they have, so as to entitle them to raise questions of errors or irregularities as to procedure. Certainly there is no evidence before the Court from which it can be determined that the County Commissioners did not act in a proper manner upon the questions now before the Court.

This Court must find that the plaintiffs have not maintained the issues on their part to be maintained, in showing a clear right to bring this action, and especially have not shown a clear right to an injunction permanently restraining the annexation allowed by the County Commissioners; and, therefore, the Court sustains the motion of counsel for defendant for a judgment of dismissal at the close of plaintiffs’ case. Entry accordingly with exceptions by counsel for the plaintiff.


author: By COLLIER, J. By MILLER, Presiding Judge: By HORNBECK, J.:

text:
    GRIFFITH, Plaintiff-Appellee, v. RUTLEDGE, Defendant-Appellant.
    Ohio Appeals, Second District, Montgomery County.
    No. 2339.
    Decided January 7, 1956.
    Jacobson, Durst, Pollak & Jacobson, Dayton, By Wm. T. Poliak, of Counsel, for plaintiff-appellee.
    Altick & McDaniel, Dayton, By Hugh H. Altick, of Counsel, foj defendant-appellant.
    (COLLIER, J, of the Fourth District, sitting by designation in the Second District.)
   OPINION

By COLLIER, J.

This action arises out of a collision between two automobiles operated by the parties, wherein plaintiff-appellee, William Roger Griffith, is seeking to recover damages for personal injuries. The case was submitted to a jury upon the issues presented by the amended petition and answer thereto. A special verdict on all the issues was requested and returned. The jury rejected the forms of verdict submitted by the court and prepared and returned their own form of verdict. Both parties moved for judgment on the special verdict, which were both overruled and the trial court ordered a new trial sua sponte. In order to avoid confusion, the parties will be referred to herein as they appeared in the Common Pleas Court, as the plaintiff and defendant.

It is alleged in the amended petition that the plaintiff was driving a 1939 Chevrolet sedan eastwardly on Airway Road, on the south half of said road, at twenty miles per hour, when the Chevrolet was struck by a 1953 Oldsmobile sedan driven westerly on said road by the defendant, resulting in certain injuries and damages to the plaintiff.

The plaintiff charges the defendant with the following specifications of negligence: 1) Defendant was driving said Oldsmobile just prior to and at the time of the collision at a speed of 75 miles per hour; 2) Defendant was driving said Oldsmobile without having same under any control at the time of and just prior to the collision in that said Oldsmobile was not in the westbound lane of traffic; 3) Defendant drove said Oldsmobile just prior to and at the time of the collision partially upon the south one-half of Airway Road, and across the center line of Airway Road in the lane for eastbound traffic occupied by plaintiff.

The special verdict returned by the jury, omitting the caption and formal parts, is as follows:

“On the morning of August 24th, 1953, at about 1:15 A. M. Mr. Clarence Rutledge, accompanied by Miss Zelma Shropshire, a passenger, was driving a 1953 Oldsmobile toward Dayton, Ohio on Airway Road in the vicinity of the B & O Railroad tracks. The speed of this car being driven by Mr. Clarence Rutledge after crossing the B & O tracks, and at the time of impact, was determined to be 70 miles per hour. At approximately the same time on the morning of August 24, 1953, Mr. William Roger Griffith, driving a 1939 Chevrolet, entered this same highway from the North side, driving across the highway in a Southeasterly direction from the vicinity of the Bonnie Lee Tavern. That Mr. Griffith drove into the path of the Oldsmobile, resulting in a collision of the two vehicles. That the point of impact was placed as North of the center line of the highway known as Airway Road and in the passing lane for traffic traveling toward the West. That all participants did receive injuries as set forth in the amended petition.
“William Roger Griffith was injured as a result of said collision as described in his amended petition and as a result of said injuries has suffered a loss of wages and hospital and medical expenses. If the Court decides that judgment should be entered on this Special Verdict in favor of William Roger Griffith, we assess his damages at $59,845.20.”

Both parties claim the court erred in overruling their motion for judgment in their favor on the special verdict of the jury. In other words, both parties claim they are entitled, as a matter of law, to final judgment on the special verdict. The defendant’s first contention is that the special verdict shows that the plaintiff has failed to prove the negligence of the defendant which he charged in the amended petition and, secondly, that the special verdict shows conclusively that plaintiff was negligent in a manner directly and proximately causing his own injuries.

It will be observed that plaintiff in his amended petition sets forth three grounds of negligence against the defendant, viz.: 1) Excessive speed; 2) That defendant did not have his automobile under control; 3) That defendant drove his automobile across the center line of Airway Road, in the lane for eastbound traffic occupied by the plaintiff.

An examination of the special verdict shows the jury found that the defendant was driving his Oldsmobile at the rate of 70 miles per hour at the time of the collision; that the special verdict is silent on the second ground of negligence which charges the defendant with failure to have his automobile under control. On the third specification of negligence the jury finds that the point of impact was north of the center line of the highway and in the passing lane of traffic traveling toward the west and the collision did not occur south of the center line as alleged by plaintiff. Briefly stated, the verdict establishes the rate of speed of defendant’s automobile only 5 miles per hour less than alleged by the plaintiff; there is no finding of fact as to whether the defendant failed to have his automobile under control; the finding of the jury as to the third specification of negligence, that the defendant drove his Oldsmobile across the center line onto the wrong side of the highway, is adverse to the plaintiff. So that we have only one specification of negligence shown by the verdict upon which a judgment for the plaintiff may be predicated and that is that the defendant was driving his Oldsmobile at an excessive rate of speed at the time of the collision. As to the other two charges there is a complete failure of proof.

The defendant contends that the mere finding of the jury that the defendant was driving his automobile at the rate of 70 miles per hour when the collision occurred is not sufficient to show that he was driving at an unreasonable or improper rate of speed; that in order to establish this specification of negligence it is necessary that the verdict show conditions as to the surface of the highway, traffic and such other conditions at the time and place as may have existed to make such rate of speed unreasonable or improper. It is conceded that the maximum lawful rate of speed on the highway where the collision occurred is 50 miles per hour and the plaintiff claims that a showing of any rate of speed greater than the maximum lawful rate is sufficient to establish a prima facie case of negligence.

The plaintiff’s claim in this respect is supported by a recent decision of the Supreme Court of Ohio in the case of Cleveland v. Keah, 157 Oh St 331, 105 N. E. (2d) 402, wherein it is held:

"Where a municipal ordinance makes it prima facie unlawful for a motor vehicle to exceed a certain speed limit in a described locality, a speed greater than that specified does not establish the commission of an offense or constitute unlawful conduct per se, but establishes only a prima facie case under the ordinance. Such a provision as to speed is merely a rule of evidence raising a rebuttable presumption which may be overcome by evidence showing that in the circumstances the speed was neither excessive nor unreasonable."

The second paragraph of the syllabus of this case defines a prima facie case as follows:

“A prima facie case is one in which the evidence is sufficient to support but not to compel a certain conclusion and does no more than furnish evidence to be considered and weighed but not necessarily to be accepted by the trier of the facts.”

On this authority, in the absence of any finding of facts in the special verdict showing conditions sufficient to overcome the rebuttable presumption created by the evidence showing a rate of speed of 70 miles per hour, the plaintiff has established a prima facie case of negligence under the allegation of excessive speed. It is not essential that the plaintiff prove all the allegations of his amended petition, if enough is proved to constitute a cause of action. Sufficient proof of only one of the specific acts or omissions of negligence alleged in the amended petition entitles the plaintiff to recover.

Having determined the defendant was negligent in one particular charged, we next consider defendant’s contention that the special verdict clearly shows contributory negligence by the plaintiff. The defendant bases his argument in this respect upon the following statement in the special verdict:

“At approximately the same time on the morning of August 24, 1953, Mr. William Roger Griffith, driving a 1939 Chevrolet, entered this same highway from the north side, driving across the highway in a southeasterly direction from the vicinity of the Bonnie Lee Tavern. That Mr. Griffith drove into the path of the Oldsmobile, resulting in a collision .of the two vehicles.”

If the jury meant to say that plaintiff drove into the path of defendant’s automobile, thereby causing the collision, there could be no question but that the plaintiff was guilty of negligence, directly and proximately contributing to his own injuries, which would prevent a recovery by the plaintiff. On the other hand, if we read this statement in context, as we are required to do, and thus determine the meaning from a consideration of the entire verdict, it is just as reasonable and logical to conclude that the statement is merely the recital of an event in a chain of events which led to the point of impact of the two automobiles. This is the conclusion reached by the trial court, and we are inclined also to take that view. At any rate, reasonable minds may easily reach different conclusions in construing this special verdict as to just wir it the jury intended by this statement.

It is said of special verdicts, in 39 O. Jur., page 1145:

“Such verdicts cannot be aided by intendment or by extrinsic facts. The finding must be so clear, consistent and complete that the proper judgment can be rendered as a legal conclusion from the pleading and findings of fact constituting the special verdict, without looking beyond such findings of fact to any evidence disclosed by the record.”

Since the special verdict in the instant case is so uncertain and ambiguous on the issue of contributory negligence, in our opinion, the trial court was justified in overruling both motions for judgment on the special verdict and ordering a new trial, sua sponte, under §2323.17 R. C., which provides:

“Where a verdict is so indefinite, uncertain, or defective that a judgment cannot be rendered thereon, the court shall order a new trial.”

Finding no error prejudicial to either party, the judgment of the Common Pleas Court is affirmed.

Judgment accordingly.

CONCURRING OPINION

By MILLER, Presiding Judge:

I concur in the judgment for the reason that the verdict does not contain sufficient ultimate facts to enable the Court to draw any conclusions of law. A special verdict must contain the ultimate facts and' be “so clear, consistent and complete that the proper judgment can be rendered from the pleadings and the facts found without reference to the evidence disclosed by the record.” Dowd-Feder Co. v. Schreyer, 124 Oh St 504. The finding that the defendant was driving his car at a speed of 70 miles per hour constitutes only prima facie evidence of an unlawful rate of speed. The jury should have found the ultimate fact of whether or not he was driving in violation of §4511.21 R. C. and if so, whether such a violation was a proximate cause of the plaintiff’s injuries.

DISSENTING OPINION

By HORNBECK, J.:

If the trial court had discretion as to the granting of a new trial, would agree that the order appealed from should be supported. But the principles controlling are too well-defined to justify a new trial upon the special verdict.

The finding in the special verdict:

“The speed of this car being driven by Mr. Clarence Rutledge after crossing the B. & O. tracks, and at the time of impact, was determined to be 70 miles per hour.”

was not sufficient basis for a judgment for the plaintiff. It is true that the finding made a prima facie case of an unlawful rate of speed under §4511.21 R. C. But, the issue was as to the violation of the statute. The prima facie case was insufficient to compel that conclusion, and that the defendant was negligent and that his negligence proximately caused injuries to the plaintiff. The special verdict must incorporate all findings of fact essential to the judgment—the pronouncement of the law required by the facts.

The offense defined in §4511.21 R. C. is the driving oí an automobile upon a public highway at a rate of speed greater or less than is reasonable and proper. Certain speeds are designated as prima facie lawful, and any excess above these speed limitations is prima facie unlawful, but whether the act of driving the automobile at such speed as is faster than is reasonable and proper must be considered with “due regard to the traffic, surface, and width of the street or highway and any other condition.” Speed alone does not constitute a violation of the statute.

“The test prescribed by §12603 GC, to determine the lawfulness or unlawfulness of speed of motor vehicles upon the public highway is whether such speed is greater or less than is reasonable or proper under existing conditions.” Swoboda v. Brown, 129 Oh St 512, 5th syllabus.

To like effect, Cleveland v. Keah, 157 Oh St 331.

The special verdict to support the legal conclusion that the speed statute was violated should have found, in addition to the speed, applicable condition or conditions set out in the statute and that the speed so determined was faster than was reasonable and proper, which conduct caused the collision. All of these elements of the speed statute are facts to be determined as a prerequisite to the pronouncement of a judgment for the plaintiff.

The instances where proximate cause may be found as a matter of law certainly are few since the pronouncement of Glasco v. Mendelman, 143 Oh St 649. For a full statement of the facts in this case, some of which are not found in Supreme Court opinion, see 41 Abs 257. A helpful annotation on proximate cause is found in 24 L. R. A. (N. S.) page 28, et seq.

As the negligence of the defendant was not established by the special verdict, no attention need be given to the claim that it required the conclusion that plaintiff was contributorily negligent.

Certain of the decisive issues of fact in this case were not determined by the special verdict; they were essential to plaintiff’s recovery and must be regarded as not proven. Noseda v. Delmul, 123 Oh St 648.

Judgment should have been entered for the defendant.


author: By SKEEL, J:

text:
    SNAP-TITE, INC., Plaintiff-Appellant, v. NOLL EQUIPMENT COMPANY, Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23749.
    Decided June 6. 1956.

      Jones, Day, Cockley & Reavis, Thomas P. Mulligan, of Counsel, for plaintiff-appellant.
    Samuel K. Walzer, Stanley B. Wiener, for defendant-appellee.
   OPINION

By SKEEL, J:

This appeal comes to this Court on questions of law and fact from a judgment entered for the defendant in the Common Pleas Court of Cuyahoga County. The action is one to rescind a sale of a lathe and for the return of the purchase price and for special damages incurred because of the unsatisfactory operation of such lathe, causing loss in the operation of plaintiff’s plant, and for the return of freight paid by the plaintiff.

The plaintiff’s petition presents a cause of action for rescission based on breach of warranty, the allegations being that they informed the defendant as to the nature of the work for which they needed a lathe, that defendant represented and warranted that the lathe offered plaintiff was suitable for the purpose, that it was reconditioned and guaranteed to be satisfactory mechanically. It is further alleged that for a number of reasons the lathe did not meet the requirements of the plaintiff nor conform to the express warranty of the defendant; that when plaintiff discovered the breach of warranty, the defendant was notified but that it “failed and refused to take any corrective action.” It is then alleged that on April 13, 1953, the defendant was notified of the plaintiff’s election to rescind the sale and a request was made for the return of the purchase price.

The amended answer and cross-petition of the defendant alleges that on January 12, 1953, the defendant, pursuant to its written quotation and the plaintiff’s purchase order for a No. 5 Used Gisholt Turret Lathe, sold the same to the plaintiff for $7825.00. That it received the consideration therefor and the lathe was delivered about February 1, 1953. The defendant says that the plaintiff returned the lathe without its consent on April 13, 1953, and that plaintiff was notified that unless the machine was “picked up” on or before June 5, 1953, storage charges would be made. This the plaintiff failed to do and defendant seeks storage charges at the rate of $25.00 per day.

The amended answer also alleges that the written contract of sale provided that “if the above described reconditioned machine was not satisfactory mechanically, the purchaser could return it, freight prepaid, within thirty days and we will refund the purchase price in full.” The plaintiff, it is alleged, failed to return the machine within the thirty day period or within a like period provided by Ceiling Price Regulation No. 80 of the Office of Price Stabilization of the United States, then in full force (the contract for the lathe being made within and controlled by such price stabilization regulations) by reason thereof plaintiff waived and is estopped from asserting its claim of rescission.

The plaintiff, by reply and answer to defendant’s cross-petition, while admitting the thirty day provision of defendant’s quotation and that the provisions of Ceiling Price Regulation No. 80 were in full force until March 12, 1953, denies any waiver or that it is estopped of its right to claim rescission and to rescind the contract. By motion subsequently filed, the plaintiff by leave of court over defendant’s objection, amended its petition to state that if the contract required the plaintiff to return the lathe at any time prior to April 13, 1953, that the defendant waived such requirement.

The facts, except as to the extent, if any, that the lathe was in disrepair when received by the plaintiff, are not in great dispute. In January and February and until the early part of March, 1953, when price regulations were removed, machine tools were hard to get. In fact, the sale of this lathe to the plaintiff was accomplished only by securing a waiver or release of a prior claim to it by the Kaiser Fraser Company.

The facts, sustained by the evidence, show that the defects which plaintiff relies upon as grounds for exercising the right to rescind, claiming a breach of warranty, were known to the plaintiff within a few days after receiving delivery of the lathe. The provisions of the offer to sell showed clearly that the plaintiff had thirty days from February 2, 1953, to return the lathe and demand return of the purchase price. That such was the agreement is given support by plaintiff’s letter of April 20th, 1953, which in part, is as follows:

“This confirms our telephone conversation of Friday, April 17th, concerning our Purchase Order No. 8307—your invoice No. 3843, for the Gisholt Turret Lathe, which we have now returned to you asking that you sell same and refund our money inasmuch as this machine has not performed in our plant to our satisfaction and also we notified you of its unsatisfactory condition before the thirty days were up.”

But notice did not come within the terms of the contract. The contract required the reshipment of the lathe to the seller freight prepaid.

The evidence clearly shows the plaintiff, knowing machine tools were hard to find, did not want to return the machine but instead attempted to make it work with full knowledge of its condition. There is not a syllable of evidence indicating a direct and unequivocal rescission or that the seller by its conduct waived or extended the written terms of the sale as agreed upon. Not only is this conclusion sustained by the record, but the fact that the agreement was within the provisions and limitations of the Price Stabilization Act is clearly established.

The Sales Act of Ohio provides three remedies for breach of warranty,—recoupment, counter-claim and rescission. (Sec. 1315.70 R. C.l These remedies are exclusive of each other as is provided by this section.

Here the contract restricted the right of rescission to a thirty day period, requiring the plaintiff to ship the machine back if not satisfactory. The plaintiff failed to act in claiming such right within the time agreed upon. The action is pleaded in rescission so that damages for breach of warranty are not available to the plaintiff. We do not hold that the terms of the contract prevented any other remedy for breach of warranty as prescribed by statute but rather that having pled rescission, actions for damages or recoupment are not here available.

In Williston on Sales, Revised Edition, Vol. 3, Para. 611a, at Page 361, the author says:

“Conditions are often imposed in contracts qualifying the buyer’s remedies for breach of warranty, and such conditions are especially common where a right of rescission is stipulated for. If such conditions are imposed, of course, in order to entitle the buyer to the stipulated remedy, they must be observed. As for instance, that notice of defects shall be given to the seller, or given within a certain time, and perhaps also that he shall have an opportunity to rectify them, if return of the goods within a given time is required, notice of the defects is not a compliance with the condition. But as conditions qualifying the buyer’s remedy are for the seller’s benefit, he may waive them. For instance, if he undertakes to repair defects he cannot afterwards insist upon a condition requiring notice. Likewise if he repudiates his obligation the buyer’s further compliance with preliminary conditions is excused. A contract may also exclude rights of rejection or rescission and provide for damages as the only permissible redress for defects in the goods.”

See also Para. 612 on Page 362, dealing with the rule that remedies are mutually exclusive.

We must conclude, therefore, that the plaintiff is not entitled to the relief prayed for and a decree is entered for the defendant on plaintiff’s petition.

The defendant’s cross-petition seeks a judgment for storage on a quantum meruit basis, there being no agreement on that subject on April 13th, when the plaintiff shipped the lathe back to the defendant. The defendant acknowledged receiving it and then notified the plaintiff that it would be held on a consignment basis for sale. On June 22nd, 1953, the defendant notified the plaintiff that it had held the machine on consignment since May 13th and asked whether or not it should hold it longer for sale or return it. There was here no claim or demand for storage. There is no rule of law that one holding a machine for sale on consignment, that is in bailment, is entitled to charge storage while so held nor is there any evidence as to what the reasonable storage charges might be under the circumstances. The machine was that of the plaintiff. If the defendant, after holding it for a reasonable time for resale, did not wish to continue to hold it upon consignment, it was privileged to return it to the owner. This was not done. We must conclude that the defendant has no enforceable claim for storage. A decree must be entered for the plaintiff on defendant’s counter-claim for storage.

One other question should be considered. This appeal was filed in this Court on questions of law and fact. Upon the law and fact call, under the rule of this Court, to determine whether the appeal was properly here on law and fact, in response to the Court’s question as to the nature of the action, it was said in open court by agreement of counsel to be one seeking rescission of a contract. Without objection of either party, the Court retained the appeal on questions of law and fact.

When the case came before us on the merits, it soon developed that the rescission prayed for was under the Sales Code (§1315.70 R. C.) for breach of warranty, and therefore an action at law and not in equity, and that the appeal should have proceeded as one on questions of law. There was, however, no objections to its proceeding as an appeal on questions of law and fact (in fact the parties insisted that it was an equity case) and so we have retained it on that basis and the case tried as a law and fact appeal on a stipulation that it would be tried on the record produced in the trial court. The transcript of the evidence filed in this Court, therefore, contains all of the evidence heard by the trial court as per the terms of the stipulation.

In the case of Union Trust Co. v. Lessovitz, 122 Oh St 406, the fifth paragraph of the syllabus provides:

“5. If, before trial in the appellate court, the appellee fails to challenge its jurisdiction to hear the appeal by motion to dismiss, or if such motion, having been filed, is withdraw, and if, in either event, the appealed case is thereafter heard, the appellee cannot thereafter challenge the appealability of the case.”

For the foregoing reasons, a decree may be entered for the defendant on plaintiff’s petition and for the plaintiff on defendant’s cross-petition, costs to be assessed against the plaintiff.

Exceptions noted. Order see journal.

KOVACHY, PJ, HURD, J, concur.