author: SULLIVAN, J.

text:
    FRASER v E & L INVESTMENT CO
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 10170
    Mr. A. R. Johnson, Cleveland, for Fraser.
    Messrs. Lieghley, Haile, Haber & Berick, Cleveland, for E. & L Investment Co.
   SULLIVAN, J.

We have examined the question of error as to whether the court properly applied the law concerning the burden of proof and we do not find anything, in the record, upon examination thereof, to show to the contrary and this brings us to the question of the state of the evidence, in order to determine whether the judgment is clearly and manifestly against the weight of the evidence, and in determining this question we have examined the record for the purpose of ascertaining whether there is any situation in the record that shows a grievous error or mistake on the part of the court either as to law or as to the facts, or whether there is a mere conflict in the evidence itself, because if it is only a question of a conflict in the evidence and there is credible evidence upon the essential points to support the judgment of the court, then a reviewing court is without authority to disturb the judgment.

Painsville Utopia Theater Co. vs Lautermilch, 118 OS. 167.

Of course there is no question bub that the defendant in error had the right, during, the existence of the contract, and before final performance, to abrogate or revoke the same, and there is credible evidence in the record showing that such revocation took place, although as before noted, the plaintiff’s testimony is in conflict therewith.

Of course the burden of proof upon the revocation is upon the defendant in error and we have had this rule of láw in mind in determining the question of the weight of the evidence.

The effedTof the examination of plaintiff in error substantially corroborates the claim of the defense that $28,000 only was the amount that could be raised upon the security. and that thereupon the defendant notified the plaintiff to drop the question of the loan and subsequently other parties secured the loan of $30,000.00.

Now we come to the question as to the legal authority for. the revocation and we find in Spiegel vs Brenner, 116 OS. 631 an authority which settles this point beyond controversy:

“As a mere naked authority to sell land does not constitute a contract, it is revocable at any time before the offer which is contained in the authority, is accepted.
‘So an authority to sell land or other property, when not coupled with an interest, may be revoked at any time before the actual sale takes place * * *.’ I Am. & Eng. Enc. Law, 1216.
‘A unilateral agreement of a landowner constituting an exclusive agent for the sale of the land within a specified' time, which agent is to recevie a commission, regardless -of who effects the sale, and is to be aided by the owner in making, a sale, lacks mutuality, and hence is revocable at any time before the agent procures a purchaser.’ Kolb v Bennett Land Co. 74 Miss. 567, 21 So. 233.”

Spiegel supra was followed by this court in Schoenel vs Warner-White Co. 31 O. App. The petition in error herein was Fter dismissed by the Supreme Court as noted in 119 OS. 460.

We have, therefore, come to the conclusion that the judgment is not clearly and manifestly against the weight of the evidence, under the rules of law which-we are compelle.d to follow; that the auestion of revocation was submitted to the trial court the same as if to a- jury, and that court, under the authorities, was the final arbiter as to the facts, and there was no error of law committed that we find in the record.

Holding these views, the judgment of the lower court is hereby affirmed.

Vickery, P. J. and Levine, J, concur.


source: Caselaw Access Project

author: HOUCK. J.

license: Public Domain

text:
    MILLER v PRIOIETTI
    Ohio Appeals, 5th Dist, Stark Co
    No. 1018.
    Decided October 17, 1929
    Messrs. Ake, Van Nostrand & Graham, Canton, for Miller.
    Messrs. Contie & Cohen, Canton, for Prioietti.
   HOUCK. J.

It is urged under this state of the record that there is such prejudicial error therein as to authorize a reviewing Court to reverse the judgment below and grant a new trial. The record clearly discloses that the question in which it is claimed the real sting exists was withdrawn by counsel.

“Refusal of the Court to withdraw a juror and decree a new trial after it had been brought out that defendant carried liability insurance was not error, since such action is within the discretion of the trial Court and will not be interfered with in the absence of abuse.”
Gibbs v Bartom, 130 Atlantic Reporter 439.
Knutzen Motor Co. v. Steiner, 31 Ohio Appellate 46
(166 Northeastern Reporter, page 243).
Cohen v. Smith, 26 Ohio Appellate Reports 32.

We think that the case of Pavilonis v. Valentine, 120 OS. 154 (165 Northeastern, p. 731) is clearly in point and decisive of this suit in favor of the defendant in error and against the plaintiff in error.

How can it properly be as_serted in the case now under review that prejudicial error has intervened when, as a matter of fact, no answer was given to the question and the jury did not know whether .the answer would be yes or no, and as a result had no knowledge as to whether the defendant below carried indemnity insurance or not. What more could the Trial Judge dp than he did in the premises? Or what more could counsel for plaintiff below do than he did in order to prevent any semblance of error? ‘ He withdrew the question and the case stood just as it did prior to that time. A reviewing Court under the facts before it has no right to draw an inference that the plaintiff in error has been prejudiced. In order for there to be prejudicial error warranting a reversal of a judgment, the record must affirmatively show that the rights of the complaining party have been prejudiced and that justice has been miscarried. Not so in the case before us.

It follows that the judgment of the Common Pleas Court should be affirmed.

Lemert, J. and Sherick, J. concur.


author: LLOYD, J.

text:
    WELLS v OHIO SAVINGS BK & TR CO
    Ohio Appeals, 6th Dist, Lucas Co.
    No. 2259.
    Decided October 28, 1929
    Messrs. Harold A. Nessler and Chas. W. Davis, Toledo, for Wells.
    Messrs. Geer & Lane, Toledo, for Savings Bk & Tr Co.
   LLOYD, J.

Assuming that the above quoted provision of the land contract obligates the defendant to do the things therein enumerated, the contract' does not provide when same were to be commenced or completed, but seems rather to contemplate the doing of them as the development of the subdivision progresses. To say the least, this provision of the contract is ingenious in its wording as well as attractive to the prospective buyer. The theory of plaintiff is, however, that by the oral representations of the agent through whom the sale was made the improvements referred to in the contract, as well as some others not specified therein; sewer,, for instance, — were to be completed on or before January 1, 1926, and that by reason of the representations so' made she is now entitled to the relief sought.

The plaintiff testified that the agent said:

“Out Bancroft Street was the best place to buy, and that they were selling the lots very cheap; that the lots adjoining there were selling for at least double what they were asking, and he told me to purchase several of them .and that he would make me at least two or three hundred dollars on each lot in a year’s time. He said the contracts were going to be left for all the improvements and the improvements were to begin the first of the" year 1925, just as soon as the weather cleared up in 1925, and that just as soon as the improvements were in that he would resell for me and make a profit. The streets were to be graded and the sidewalks and the sewer and water, boulevard lighting and the gas. He said a number of people had bought lots to build on. fíe told me that a number of people who had bought lots there expected to build and build right away. It was going to be biiilt up, he said, very shortly.”

The foregoing is, in substance, all of the testimony of plaintiff as to the alleged representations which she claims induced her to enter into this contract. All of the conversations narrated by plaintiff, except the statement that “the lots adjoining were selling for at least double what they were asking”, relates to future occurrences rather than to existing facts, and there is no evi'dence as to the falsity of this alleged representation. The agent negotiating these sales to plaintiff was not present and did not testify at the trial.

The evidence also discloses that she entered into similar contracts, on the same day, for five other lots, one of which she thereafter sold,. assigning the contract therefor to the purchaser.

It seems to us that the most that can be claimed for the conversations narrated by plaintiff is that it was good sales talk and the plaintiff, thinking the purchase of these lots a good investment, accepted what the agent said as fact rather than as his opinion of what would thereafter be done. There is no evidence to show that the agent was authorized to make any representations or to consent to any conditions other than the written contract imposed, and no claim has been made that there was any ambiguity in the contract or that plaintiff did not understand its provisions. She continued to make small payments on the contract and made no claim to a right to rescind same until July 24, 1928, nearly four years after its execution.

We are satisfied that the evidence does not warrant a decree in her favor, and her amended petition is accordingly dismissed. We are also of the opinion that the defendant is entitled to a. judgment on its cross-petition and a decree foreclosing, its lien for the unpaid purchase price.

WILLIAMS and RICHARDS, JJ., concur.


author: HOUCK, J.

text:
    DIOGUARDI v RUBY
    Ohio Appeals, 5th Dist, Stark Co
    No. 1038.
    Decided October 17, 1929
    Messrs. Contie & Cohen, Canton, for Dioguardi.
    Messrs. Abt, Van Nostrand & Graham, Canton, for Ruby.
   HOUCK, J.

It will be observed that in the case at bar the solution of the questions here presented are mostly ones of fact for the determination of the Jury, under proper instructions from the trial Judge. Questions of fact are for the Jury and questions of law for the Court.

The learned counsel for plaintiff also makes some complaint as to the charge of the trial Judge with reference to the law pertaining to contributory negligence and the constituent elements of same. The rule in Ohio seems to be well settled that where contributory neefi pence is pleaded as an affirmative defense and evidence is adduced in its support, no such confusion can arise; that where contributory negligence is made a defense either by the pleadings or by evidence, the burden of proving that issue is cast upon the defendant. Contributory negligence is a defense in the nature of a confession and avoidance.

The trial Judge in his charge to the Jury, said:

“Now, ladies and gentlemen of the Jury, if you find by a preponderance of the evidence that the plaintiff has proved that Ruby was guilty of negligence and that his negligence was the proximate cause of the injury, then you will return a verdict for the plaintiff in such an amount, no more and no less, as ..would fully compensate him for his injury, which he has received. If, however, it appears from the plaintiff’s own testimony or from the case made by the defendant that the plaintiff himself was negligent and that his negligence ' contributed, even in the slightest degree to the-injuries which he sustained, then it will be your duty to return a verdict in favor of the defendant.”

It is apparent that a careful reading of this charge clearly indicates that the trial Judge properly an¿ correctly instructed the Jury upon the question of contributory negligence, as made by the facts* and we hold that the plaintiff has no reason to complain of the questioned charge.

The Court further instructed the Jury: “Plaintiff alleges in his petition that the driver, Mazzetti, was driving in a careful manner. Now, of course, it is my duty to say to you,' ladies and gentlemen pf the Jury, that the negligence of Mazzetti, the driver of the car in which plaintiff was driving, if any, cannot be charged against the plaintiff, Biago Dioguardi. That is to say, plaintiff is not responsible for the negligence of jthe driver, Mazzetti, but the plaintiff is responsible for any negligence on his part in failing to exercise ordinary care for his own safety. It is for you to say from all of the evidence in the case whether the plaintiff, before or at the time of the injury, was in the exercise of ordinary care for his own safety.”

It requires no comment on the part of the Court with reference to the law as contained in this charge. It’ is sound and clearly goes to the issues raised by the pleadings and the facts proven on the trial and is in no way prejudicial to the rights of the plaintiff.

Railroad Co. vs. Fleming, 30 OS., 480

It is the general rule, not only in this jurisdiction, but others as well, that instruction ought to have reference to the circumstances of the case and be so given as to secure the fair consideration and judgment of the Jury upon the points at issue. The general charge, measured by this rule, is sound.

“It is the Ohio rule, at least, where upon the whole record the judgment appears to be correct, it will not be reversed for claimed error in the charge.”

Jaeger vs. Converse 87 OS., 486.

We do not think it necessary to discuss the questions of fact or law further than to say that we find no error of such a prejudicial nature as would warrant a reversal of this judgment and the judgment of the Common Pleas Court should be affirmed.

Lemert, J. and Sherick, J., concur.


text:
    TIEDEMANN v McGRATH et
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 10226.
    Decided October 21, 1929
    Mr. O. D. Eshelman, Cleveland, for Tiedemann.
    Mr. H. J. Turney, Cleveland, for McGrath et.
   SULLIVAN, J.

Of course there are two questions to consider here. One is whether the answer shows a valid defense, and the other is whether there is a record which brings into requisition Section 7 of 11631 GC., cited above.

In other words, was the judgment rendered because of unavoidable casualty or misfortune and were these causes of such a nature as prevented the party from prosecuting or defending?

We find an absence in the record that conforms to the authorities in defining the meaning of Section 7, with respect to what is unavoidable casualty or misfortune which prevents the party from prosecuting or defending. We find nothing in the record to support this claim, and certainly under the authorities, forms the basis for there is nothing in the answer which, compliance with the statute before the vacation of a judgment can be ordered when it was rendered at an antecedent term of court.

We find in Proctor vs. Proctor, 22 C. C. (N. S.) 145, 4th Ap. 245, the law laid down that unavoidable casualty or misfortune refers only to things preventing prosecution or defending, and not for those things preventing attendance at the trial in person, especially "where it appears, as it does in the case at bar, that opportunities innumerable were afforded the defendant in question for defending.

Therefore, upon the question as to statutory cause for the vacation of the judgment, we find the action of the court unfounded in the record.

Now we come to the question as to whether there is a valid defense, because if there is a statutory cause for the vacation it is still necessary, before there can be a vacation of the judgment, to aseer-. tain upon proper hearing or showing that a meritorious defense is pled, but if there is no statutory ground, then the court is without authority to consider the question of valid defense because it must rest upon a statutory ground and if that is lacking then the meritorious defense has no foundation in law under the authorities.

In every motion to vacate a judgment after term, there are two things to consider. One is the duty of the court in ascertaining whether the petition is founded upon a statutory ground, and the other is whether there is a meritorious defense, and, generally speaking, these two issues are to be heard and determined by the the court, providing it is necessary to determine whether the motion is well taken, and, as before stated, the statutory ground is the superstructure of the petition to vacate because it is only under that legislative act that the privilege and right rests.

Thus holding, the judgment of the lower court is hereby reversed on the ground that the action of the court in vacating the judgment was, in our judgment, contrary to law and to the record in the case.

Vickery, P. J. and Levine, J., concur.


text:
    HENDRICKSON MACHINE CO v SCHUMACHER CO
    Ohio Appeals, 5th Dist, Stark Co
    No. 1005.
    Decided October 17, 1929
    Messrs. Thomas McDermott and Lynch, Day, Pontius & Lynch, Canton, for Hendrickson Machine Co.
    Messrs. Gnau & Miller, Canton, for Schumacher Co.-
   HOUCK, J.

Coming now to a brief discussion of the facts, it seems a waste of time to remind counsel that questions of fact are for the determination of the jury. As to whether or not a contract was made, was for the determination of the .jury in the light of the evidence offered by. plaintiff and defendant. It is further within the province of the jury, under the evidence offered in the case, to determine whether or not there was was a breach of the contract as alleged and set forth in the petition of the defendant.

The rule, seems to be well settled that to constitute a valid contract there must be parties capable to contract, a lawful subject matter of contract, a sufficient consideration therefor, and an actual agreement between the parties to do or to forbear doing the thing proposed in the agreement.

It will be conceded that it is the duty of the Court to construe all contracts and to instruct the jury as to their effect and however difficult it may be to come to a conclusion when the conclusion is once reached, its legal effect is not altered by the difficulty.

Thomas v. Matthews, 94 OS. 32.
Mumaw v. Ins. Co., 97 OS. 1.

Under the facts as contained in the bill of exceptions and under the rules of law herein laid down, the finding of the jury in the instant case being based upon the disputed questions of fact presented to it in the trial, it is not within the province of a reviewing, Court under such circumstances to say that the jury went wrong in returning the verdict it did.

Paragraph 5 of 11447 GC provides:

(Here follows quotation)
Tractor Co. v Kroger, 114 OS. 303
Root v. Monroeville, 16 Cir. 617.
Travelers Ins. Co. v. Rosch, 69 OS. 561.
Ohio Stock Food Co. v. Gintling, 22 Oh Ap 82.
Patton Motor Trucking Co. v. Knapp, 25 Oh Ap 89. .
Dunham v. Mulvey, 24 Oh Ap 509.

An examination of the written requests given in charge before argument convinces us that the trial Judge committed no prejudicial error in submitting them to the jury. It may be stated that there is a repetition in some of these requests. Nevertheless each and all of them pertain to the determinative questions of fact involved in this controversy.

Did the trial Judge err in the general charge? A careful reading of the charge shows that the issues were properly defined and the law pertaining to the controverted questions of fact was properly given by the Court. The charge, as we view it, is a clear and concise statement of the law governing the facts as made by the proof.

Is the judgment against the manifest weight of the evidence?

“A mere difference of opinion between the Court and jury does not warrant the former in setting aside the finding of the latter.
McGatrick v. Wasson, 4 OS. 566;
French v. Millard, 2 OS. 44.
Martin v. State, 17 C. C. 469
Breese v. State, 12 OS. 146.

Prom the authorities here cited it is clearly evident that a verdict of a,jury in order to be set aside by a reviiewing Court must be clearly and manifestly against the weight of the evidence. The mere fact that a reviewing Court might not have found upon the facts the same as the jury, yet such is not a ground for reversal unless the reviewing Court is clearly satisfied that the verdict returned by the jury is manifestly against the weight of the evidence or in fact is not supported bv the evidence.

It is hardly possible in a warmly contested lawsuit like the case at bar that some error does not enter into it, but notwithstanding this, it must be such error or errors as to clearly indicate that a wrong verdict was returned by the jury before á reversal should be entered.

McHugh v. State, 42 OS. 154.

The unanimous conclusion of the Court is that the judgment of the Common Pleas Court should be affirmed.

Lemert, J., and Sherick, J, concur.


author: VICKERY, PJ.

text:
    EAST OHIO GAS CO v DANIEL
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 10272.
    Decided November 13, 1929
    Messrs. Tolies, Hogsett & Ginn, Cleveland, for Gas Co.
    Mr. Irwin Greene, Esq., Cleveland, for Daniel.
    (See also East Ohio Gas Co v Daniel, 7 Abs 691.)
   VICKERY, PJ.

Since writing the opinion in this case and entering a reversal of the judgment on the ground of contributory negligence upon the part of the defendant in error, it is claimed by counsel for the defendant in error that, inasmuch as but two members of the court concurred in that opinion, it in effect amounted to a reversal on the weight of the evidence. Such a thought had not occurred to any member of the court. We do not intend nor did we think that we were reversing the case on the weight of the evidence, but inasmuch as that is the claim the court has seen fit to vacate the entry of October 21st, 1929 and make an entry as of the date of November 12th, 1929, basing the reversal upon two grounds, both of which existed at the time of the hearing. One is upon the admission of the testimony of the plumber who testified with respect to the control over the pipes after leaving the main into the dwelling house and testified that those pipáb were under the control of the Gas Company. Objection was made to this testimony but the testimony was admitted. It was clearly erroneous for the reason that the plumber was not in the employ of the Gas Company and he knew nothing about the matter and the admission of this testimony would tend to fix liability upon the part of the‘Gas Company by a witness who had no authority to bind it nor was in any way connected with it. and he as a matter of fact knew nothing about it.

This phase of the case was touched upon in the former opinion and so the reversal of the judgment of the Municipal Court is based upon the error of the court in the admission of the testimony of the plumber as Jo the control of the Gas Company over these pipes, and for' the further reason that there was contributory negligence as a matter of law on the part of the defendant in joining with his brother in searching for a gas leak when one of the parties lighted a match which caused the explosion. ,

For these two reasons the judgment of the court will be reversed and the cause remanded to the Municipal Court for further proceedings.

.Sullivan, J.. concurs. Levine, J., dissents.


author: VICKERY, J.

text:
    TRAPP v STATE
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9224.
    Decided January 21, 1929
    A. R. Edgerton, Esq., Cleveland, for Trapp.
    E. C. Stanton, Esq., Cleveland, for State.
   EPITOMIZED OPINION

Where defendant was convicted of manslaughter resulting frqm alleged careless driving, of automobile, held not to be error to refuse to introduce in evidence an ordinance describing a closely built up section on the theory that the ordinance did not include the spot where the fatality occurred, it being a question of fact whether or not a place is closely built up.

Nor is it error for the court to fail to instruct as to contributory negligence of the deceased, before argument, since contributory negligence is not an element in a criminal prosecution.

Opinion by

VICKERY, J.

SULLIVAN, P. J. concurs.

LEVINE, J. dissents.


author: ROSS, J.

text:
    TAX COMMISSION v HIRSCH
    Ohio Appeals, 1st Dist, Hamilton Co
    No. 3220.
    Decided February 4, 1929
    Messrs. Edward C. Turner, Columbus, Clarence A. Dorger, and Wm. H. Middleton, Jr., Waverly. for Tax Commission.

      Messrs. Moulinier, Bettman & Hunt, Cincinnati, for Hirsch.
   EPITOMIZED OPINION

Bequest to trustees for daughter, with provision that her share shall vest in her husband if he survives her, son-in-law takes only a contingent remainder, subject to being defeated by his death prior to that of his wife. Hence, such bequest must be taxed in accordance with 5343 GC. Therefore, the rate by which such bequest must be taxed is not that fixed by 5334 GC., par. 3, nor 5335 GC., par. 3, as the “son of a daughter,” but by 5335 GC., par. 3, without exemptions.

Opinion by

ROSS, J.

HAMILTON, P. J., and CUSHING, J., concur.


author: ALLEN. J.

text:
    INDUST COMM v POLCEN
    Ohio Supreme Court
    No 21680.
    Decided Dec. 4, 1929
   Syllabus by

ALLEN. J.

EMPLOYER & EMPLOYE

(250 W3) Where the record shows that a claimant for compensation under the Workmen’s Compensation Act, working in the sulphuric department of a chemical company, was caused by the emission of sulphuric fumes into the plant of such chemical company to have a coughing spell, which resulted in a hernia, such hernia constitutes an injury compensable under the Workmen’s Compensation Act.

Marshall, C. J., Kinkade, Robinson, and Day, JJ., concur.


author: MATTHIAS, J.

text:
    BARSTON etc v CRAIG etc
    Ohio Supreme Court
    No 21748.
    Decided Dec. 4, 1929
   Syllabus by

MATTHIAS, J.

TRIAL

(590 Cg) Section 11447, GC, confers upon parties in civil actions the right to have instructions presented in writing, given to the jury before argument, upon request, if same be a correct statement of the law and pertinent to one or more issues in the case. A genial of such right constitutes prejudicial, error.

NEGLIGENCE

(370 C) The doctrine of comparative negligence has application in this state only in actions by an employe ag.ainst his employer.

AUTOMOBILES

(50 Nc) In the trial of an action to recover .damages for negligence in the operation of a motor vehicle, evidence of negligence on the part of plaintiff having been adduced, it was not error to give to the jury the following requested instruction before argument: “if you find from the evidence th"t the plaintiff’s own negligence directly paused or contributed in the' slightest degree to cause the injuries complained of, then your verdict must be for the defendant.”.

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


author: JONES, J.

text:
    SCHUMACHER et v OHIO SAV & TR CO
    Ohio Supreme Court
    No 21648.
    Decided Dec. 4, 1929
   Syllabus by

JONES, J.

HUSBAND & WIFE — Debtor & Creditor (210 J)

(290 P2) A husband and wife each owned, as tenants in common, individual moieties in certain premises. The husband’s moiety was sold at judicial sale and the proceeds thereof brought into court for distribution. The wife’s undivided interest in the premises was not sold. The husband and wife, living together, continued to occupy the premises as a homestead. Held, that the wife, as a tenant in common, is entitled to claim in such a proceeding a homestead in the premises; but since both husband and wife had a homestead which they were occupying, neither could claim an allowance in lieu thereof out of the proceeds derived from the sale of the husband’s moiety.

Marshall, C. J., Kinkade, Robinson, Matthias, Day and Allen, JJ., concur.


author: DAY, J.

text:
    JAFFE et v POWELL et
    Ohio Supreme Court
    No. 21699.
    Decided November 27, 1929
   Syllabus by

DAY, J.

REAL ESTATE — Negligence (370 N)

(5Í0 Le) In an action for damages against an owner of premises for negligently creating and allowing to exist a fire hazard thereon, as a result of which a fire is claimed to have occurred, causing loss of property by tenants of such owner, proof of the occurence of previous fires-at the same place and under substantially the same conditions as those involved in the action, not too remote in time, which are reported to such owner, is competent, not as showing an independent act of negligence but for the purpose of showing knowledge on the part of such owner of the existence of such fire hazard and tending to show the .common cause of such fires as due to a dangerous condition of such premises.

Marshall, C. J., Kinkade, Jones and Allen, JJ., concur.


author: By THE COURT.

text:
    AJAX PETROLEUM PRODUCTS COMPANY, a corporation, Plaintiff-Appellant, v. BLAKE, d. b. a., BLAKE EQUIPMENT COMPANY, Defendant-Appellee.
    Ohio Appeals, Second District. Franklin County.
    No. 4787
    Decided March 13, 1953
    Karn & Danaceau, Cleveland, for plaintiff-appellant.
    E. G. Schuessler, Jenkins, Williams, Wendt, Murray & Deeg, Aubrey A. Wendt, of Counsel, Columbus, for defendant-appellee.
   OPINION

By THE COURT.

This is a law appeal from the judgment of the Common Pleas Court. The action was one for breach of express warranty and damages resulting therefrom the plaintiff alleging that it purchased one 1500 gallon “Rosco” distributor from the defendant; that the same was warranted as being new but in fact was not new having been manufactured some four years prior thereto. ,

The record reveals that the defendant had been a distributor for this machine, which is a piece of road building equipment; that it had been manufactured some four years prior to the sale, but that it had never been used in any manner whatsoever except as an exhibit on two occasions at road shows, and that at all other times it had been properly stored indoors.

The president of the plaintiff corporation testified that he was of the opinion the word “new” meant newly made or of recent manufacture. The defendant testified that he has been in the road equipment business for many years and that in this business the term “new” is used to designate that the piece of equipment had not been previously used. The Court adopted the use test, found there had been no breach of warranty and instructed the jury to return a verdict for the defendant.

We find the term defined in 66 Corpus Juris Secundum, page 20:

“NEW A relative term defined as meaning not yet used or worn; now first used for some purpose; recently made; still unimpaired by use. In its ordinary acceptation, the opposite of the term ‘old.' ”

It will be noted that under this definition the word may have a meaning contended by each of the parties, but when it has a special meaning in a certain business it must be interpreted as ordinarily used in that business. It is a matter of common knowledge that the use test is used in the automobile trade in determining whether or not an automobile is new. In other situations the use test cannot be employed for the reason that use consumes a commodity, for example, food products such as corn, wheat, potatoes, oranges, etc. In such cases the terms must mean the opposite of “old.”

We are of the opinion the Court was correct in its conclusion, find no other error in the record and affirm the judgment.

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


author: By DAVIES, J.:

text:
    CASE, Plaintiff, v. CASE et, Defendants.
    Probate Court, Hamilton County.
    No. 3913.
    Decided January 15, 1955

      Larz R. Hammel, Cincinnati, for Mamie Case, plaintiff.
    Leo Weinberger, Cincinnati, for Richard A. Case, Minor Defendant in Military Service.
    Charles W. Annes, Cincinnati, to make service on Richard A. Case, Minor Defendant in Military Service.
    Alton E. Purcell, Cincinnati, Amicus Curiae
   OPINION

By DAVIES, J.:

In this action, the plaintiff, Mamie Case, who is the surviving spouse of Theodore Case, deceased; has prayed for a declaratory judgment to determine if the Soldiers’ and Sailors’ Civil Relief Act as amended October 17, 1940, applies to the granting of letters testamentary in Ohio and to prescribe the proper method of serving notice upon a minor who is in the military service and who is entitled to notice of the probate of decedent’s will under the provisions of §2107.13 R. C.

The decedent, Theodore Case, was survived by his widow, two adult sons, two adult daughters, and a minor son, Richard A. Case, who is twenty years of age, and who is in the military service of the United States, being presently known as Airman 2nd Class Richard A. Case, A. F. 15499476, U. S. Air Force 5039th Air Transport Squadron, Elmendorf Air Force Base, Anchorage, Alaska, A. P. O. 942. The minor’s permanent residence and domicil, and the place to which he intends to return when discharged from military service, is 394 Fleming Road, Wyoming, Hamilton County, Ohio.

All of the adult heirs have been properly served with, or have waived the issuance of, notice -under the provisions of §2107.13 R. C. The Court, under these circumstances, has been asked to prescribe the proper method of serving upon said minor defendant, Richard A. Case, the notice of probate of the will of said decedent required by §2107.13 R. C., and to declare whether or not the said Soldiers’ and Sailors’ Civil Relief Act as amended applies to this case.

The applicable part of the Soldiers’ and Sailors’ Civil Relief Act as amended October 17, 1940 (which will sometimes hereinafter be referred to as the Act), reads as follows:

“Tit. 50, App. Article II — General Relief. Sec. 520. Default judgments; affidavits; bonds; attorneys for persons in service.
“(1) In any action or proceeding commenced in any court, if there shall be a default of any appearance by the defendant, the plaintiff, before entering judgment shall file in the court an affidavit setting forth facts showing that the defendant is not in military service. If unable to file such affidavit plaintiff shall in lieu thereof file an affidavit setting forth either that the defendant is in the military service or that plaintiff is not able to determine whether or not defendant is in such service. If an affidavit is not filed showing that the defendant is not in the military service, no judgment shall be entered without first securing an order of court directing such entry, and no such order shall be made if the defendant is in such service until after the court shall have appointed an attorney to represent defendant and protect his interest, and the court shall on application make such appointment. Unless it appears that the defendant is not in such service the court may require, as a condition before judgment is entered, that the plaintiff file a bond approved by the court conditioned to indemnify the defendant, if in military service, against any loss or damage that he may suffer by reason of any judgment should the judgment be thereafter set aside in whole or in part. And the court may make such other and further order or enter such judgment as in its opinion may be necessary to protect the rights of the defendant under this Act * * *.
“(2) Any person who shall make or use an affidavit required under this section, knowing it to be false, shall be guilty of a misdemeanor and shall be punishable by imprisonment not to exceed one year or by fine not to exceed $1,000, or both.
“(3) In any action or proceeding in which a person in military service is a party if such party does not personally appear therein or is not represented by an authorized attorney, the court may appoint an attorney to represent him; and in such case, a like bond may be required and an order made to protect the rights of such person. But no attorney appointed under this Act (said sections) to protect a person in military service shall have power to waive any right of the person for whom he is appointed or bind him by his acts.
“(4) If any judgment shall be rendered in any action or proceeding governed by this section against any person in military service during the period of such service or within thirty days thereafter, and it appears that such person was prejudiced by reason of his. military service in making his defense thereto, such judgment may, upon application, made by such person or his legal representative, not later than ninety days after the termination of such service, be opened by the court rendering the same a.nrf such defendant or his legal representative let in to defend; provided it is made to appear that the defendant has a meritorious or legal defense to the action or some part thereof. Vacating, setting aside, or reversing any judgment because of any of the provisions of this Act (said sections) shall not impair any right or title acquired by any bona fide purchaser for value under such judgment.”

Section 510, Title 50, App. states that the purpose of the Act is as follows:

“In order to provide for, strengthen, and expedite the national defense under the emergent conditions which are threatening the peace and security of the United States and to enable the United States the more successfully to fulfill the requirements of the national defense, provision is made to suspend enforcement of civil liabilities, in certain cases, of persons in the military service of the United States in order to enable such persons to devote their entire energy to the defense needs of the Nation, and to this end * * * provisions are made for the temporary suspension of legal proceedings and transactions which may prejudice the civil rights of persons in such service during the period herein specified over which this Act (sections 501-548 and 560-590 of this Appendix) remains in force.”

An article entitled “The Present Status of the Soldiers’ and Sailors’ Civil Relief Act,” by George A. Carlson, which appears in the Journal of the Oklahoma Bar Association, Vol. 25, No. 16, dated April 24, 1954, outlines the history of the Soldiers’ and Sailors’ Civil Relief Act and concludes that the Act is in effect even though World War II has terminated.

An “action” is a judicial proceeding either in law or equity to obtain certain relief at the hands of a Court. Words & Phrases. An “action” is merely the judicial means of enforcing a right. It is often used synonymously with the word “proceeding.” An “action” is the form in which a cause of action is presented, and a “cause of action” is the fact or facts which establish or give rise to a right of action.

There is authority that the term “action” does not apply to an ex parte proceeding. The vital idea of an action is a proceeding on the part of one person as actor against another for the infringement of the right of the first in the manner prescribed by law. A proceeding to probate a will is an action at law. Simpson v. Simpson, 273 Ill. 90, 112 N. E. 276. A proceeding for the probate of a will, it has been held, does not constitute an “action” upon which a valid “lis pendens” might arise, the proceeding being one “in rem” wherein the “res” was the written instrument. Scarborough v. Long, Ga., 197 S. E. 796, 800. A probate proceeding under Surrogate’s Act of 1914, is not an “action” under Code Civil Procedure, but continues a special proceeding “in rem,” the precise nature of which can be determined only by reference to the common law of Surrogate Courts. In re: Zimmerman’s Will, 172 N. Y. S. 80. The administration proceeding in a Probate Court is not an “action,” but is a “special proceeding,” as those terms are used. In re: Park’s Estate, 75 P. (2d) 842, 848, 147 Kan. 142. See also, In re: Welch, 84 N. W. 550, 108 Wis. 374; In re: Joseph’s Estate, 50 P. 768, 118 Cal. 660.

In its general acceptance, the word “proceeding” means the form in which actions are to be brought and defended, the manner of intervening .in suits, of conducting them, the mode of deciding them and opposing judgments and executions. U. S. v. French Sardine Co., 80 F. (2d) 325. The term “proceeding” is used in the Probate Code as a general designation of the actions and proceedings whereby the law is administered upon the various subjects within probate jurisdiction. Jackson v. Porter, 209 P. 430, 87 Okla. 112; In re: McFarland’s Estate, 26 P. 185, 10 Mont. 445.

Under the Soldiers’ and Sailors’ Civil Relief Act, an “appearance” means one that may be deemed existent at the time plaintiff seeks to enter judgment by default, irrespective of when such appearance was entered. Title Guarantee & Trust Co. v. Duffy, 44 N. Y. S. (2d) 222, 225. The word “appearance” means voluntary submission to jurisdiction in whatever form manitested. Ex parte Forbell, 82 N. Y. S. (2d) 109, 110; Braman v. Braman, 258 N. Y. S. 181, 186. The word “appearance” means in law the coming into Court of a party summoned in an action either by himself or by his attorney. In re: Cool’s Estate, 18 A. (2d) 714, 19 N. J. Misc. 236. An “appearance” means coming into Court by either party to action and signifies an overt act by which a person against whom suit has been commenced submits himself to jurisdiction of Court and is his first act therein, and it may be express or implied from defendant’s taking or agreeing to some step or proceeding in cause beneficial to himself other than one contesting only jurisdiction. Mahan v. Baile, 216 S. W. (2d) 92, 94, 358 Mo. 625. “Appearance” is a process by which a person against whom a suit has been commenced submits himself to the jurisdiction of the Court. Flint v. Comly, 95 Me. 251, 49 Atl. 1044; Rogers v. Penobscot Mining Co., 132 N. W. 792, 795. In order to constitute an “appearance” in the legal sense of the term, there must be some substantial act done by the defendant which constitutes him a party to the suit. Murphy v. Williams, 1 Ark. (1 Pike) 376, 384. See also 3 O. Jur. 1.

In Maryland, probate of a will in common form is not a judgment, action or proceeding against any of the next of kin, and no notice to anyone is necessary if one or more of the next relations attends and no objection or caveat is made. Lucille H. McLaughlin, et al. v. May G. McLaughlin, et al., 186 Md. 165, 46 Atl. (2d) 307.

The Soldiers’ and Sailors’ Civil Relief Act comprehends cases where soldiers and sailors are sued as defendants and does not apply to a railroad adjustment proceeding which is in the nature of an action in rem and not against named defendant. In re: Baltimore & O. R. Co., 63 F. Supp. 542. On page 569 of the opinion, the Court states that the wording of the (Soldiers’ and Sailors’ Civil Relief) Act comprehends cases where soldiers and sailors are sued as defendants and not “in rem” proceedings not against named defendants.

An application to admit a will to probate is not an adversary proceeding. On the proceeding authorized for admitting a will to probate, persons interested to resist the probate of the will, are not allowed to introduce evidence to contest its validity. This is not the proceeding in which those who deny the validity of a will are authorized to contest it. After a will shall have been admitted to probate those who have adverse interests have the right to contest its validity by petition in the court of common pleas. The Matter of the Probate of the Last Will and Testament of Henry Hathaway, Deceased, 4 Oh St 383; Addams & Hosford Ohio Probate Practice & Procedure, p. 130; In re: Estate of K. Elizabeth Clark Tyler, 49 O. O. 69; Roosa v. Wickward et al., 90 Oh Ap 213; The State, ex rel. Young v. Morrow, 131 Oh St 266; In re: Will of Elvin, 146 Oh St 448.

Under the provisions of §2107.14 R. C., the Probate Court' causes the witnesses to a will, and other witnesses whom a person interested in having such will admitted to probate may desire to have appear to come before the Court. As stated, supra, a person who is not interested in having a will admitted to probate cannot call witnesses for such hearing.

Since the presentation of a will for probate is not an adversary proceeding, and since a surviving spouse or other next of kin, as defined under §§2105.01 to 2105.21, inclusive, R. C., are not required to enter any appearance (as required in an adversary action) before a will can be admitted to probate in Ohio, the Soldiers’ and Sailors’ Civil Relief Act as amended October 17, 1940, has no application to proceedings to admit a will to probate in Ohio, and it, therefore, is unnecessary for the executor or anyone else to file the affidavit, appoint the attorney, or follow any other of the provisions of said Soldiers’ and Sailors’ Civil Relief Act as amended October 17, 1940, as a condition precedent to the issuing of letters testamentary in the instant case.

Sec. 2721.05 R. C. provides that “any person interested as or through an executor, administrator, trustee, guardian, or other fiduciary, * * * (an) heir (or) next of kin, * * * in the administration of * * * the estate of a decedent, * * *, may have a declaration of rights or legal relations in respect thereto in any of the following cases: * * *

“(C) to determine any question arising in the administration of the estate.”

Since, under §2721.05 R. C., a fiduciary or an heir is entitled to have a declaration of rights or legal relations “to determine any question arising in the administration” of an estate, this Court has authority to render the requested declaratory judgment.

Sec. 2107.13 R. C., stipulates that no will shall be admitted to probate without notice to the surviving spouse and to the persons known to be residents of the state who would be entitled to inherit from the testator under the Ohio laws of Intestate Descent and Distribution.

Sec. 2101.26 R. C. provides as follows:

“When notice of any proceeding in the probate court is required by law or deemed necessary by the court, and the statute providing for such notice neither directs nor authorizes the court to direct the manner of serving it, such notice shall be served in the following manner:
“(A) By delivering such notice or a copy thereof to the person to be served;
“(B) By leaving such notice or a copy thereof at the usual place of residence of such person;
“(C) By depositing an envelope containing such notice or a copy thereof in the registered mail with postage prepaid, addressed to such person at his usual place of residence, if such place of residence is in the United States or any district, territory, or possession thereof, provided such envelope is not returned by the postal authorities as undelivered;
“(D) By publication once each week for three consecutive weeks in some newspaper of general circulation in the county as to any person whose name, usual place of residence, or existence is unknown to and cannot with reasonable diligence be ascertained by the person causing service to be made, or as to any person whose usual place of residence is outside the state. If the residence of the person to be served is known, it shall be stated in the publication. Immediately after the first publication, the person causing service to be made shall mail a copy thereof to each person named in the publication, directed to his place of residence named therein, and make proof of such mailing by affidavit. In all other cases, the person causing service to be made, his agent or attorney, shall make and file an affidavit before the hearing that the residence of the person to be served is unknown and cannot with reasonable diligence be ascertained. Service by publication shall be complete at the date of the last publication.
“When the interval between the serving of notice and the time of the hearing is not fixed by statute, the court shall prescribe such period as it deems reasonable.”

Sec. 2101.27 R. C., which provides for service of notice to persons under disability, reads, in part, as follows:

“Service of notice of any proceeding in the probate court upon persons under disability shall be made as provided in §2101.26 R. C., by serving the following persons:
“ (A) When the person to be served with notice is a minor over fourteen years of age, service of such notice shall be made upon him and also upon his guardian, father, mother, the person having the care of such minor, or the person with whom he lives, in the order named.
“(B) When the person to be served with noticce is a minor under fourteen years of age, service need not be made upon him, but service of such notice shall be made upon his guardian, father, mother, the person having the care of such minor, or the person with whom such minor lives, in the order named. Such service shall constitute service of notice upon such minor.
“(C) When the person to be served with notice is an adult under disability, service of such notice shall be made upon him and also upon his guardian or custodian, in the order named.

The record shows that the minor, Richard A. Case, does not have a guardian, and, as his father is deceased, his mother, Mamie Case, is the person, under the provisions of §2101.27 R. C., to be served with notice of the probate of the will of said minor’s deceased father.

Sec. 2101.28 R. C., provides that service of notice in any proceeding in the probate court may be waived in writing by any person not under disability, including any fiduciary, the guardian, father, mother, person having the care of a minor, or the person with whom the minor lives, and the guardian or custodian of an adult person under disability, but provides that no person under disability shall be permitted to waive service of notice.

The final question arises as to the manner in which, in addition to service of notice upon his mother, service, under said §2101.27 R. C., “shall be made upon him,” Richard A. Case, the minor. Since in §2101.27 R. C., the Legislature has not provided any special manner of serving notice “upon him,” a minor over fourteen years of age, such notice shall be made upon such minor in the same manner as provided in §2101.26 R. C., under the provisions of which section, the text of which is hereinbefore set forth, alternate provisions are made for serving notice of proceedings in the Probate Court. The first provision of such section provides that notice of such proceeding shall be served “(A) By delivering such notice or a copy thereof to the person to be served.” Since Richard A. Case is temporarily located in Alaska, notice of the probate of his father’s will cannot be made upon him personally. The next alternative provision of §2101.26 R. C., provides that notice (of the probate of the will) shall be made “(B) By leaving such notice or a copy thereof at the usual place of residence of such person.” The question arises as to what is said minor’s “usual place of residence” under said §2101.26 R. C. Does the phrase “usual place of residence” mean “domicil,” “residence,” or some modification of these terms?

“The problem of distinguishing the terms ‘domicil’ and ‘residence’ presents some difficulty. ‘Residence’ is the favorite term employed by the American legislator to express the connection between person and place, its exact signification being left to construction, to be determined from the context and the apparent object to be attained by the enactment. Questions as to the correspondence or difference in meaning between the terms ‘residence’ and ‘domicil’ are referable generally to the wording and purpose of the statutes in which they are used, in some of which, and for certain purposes, the words are distinguished, while in others they are regarded as synonymous.

“It is customary to distinguish between ‘residence’ and ‘domicil,’ on the ground that any place of abode or dwelling place constitutes a ‘residence,’ however temporary it may be, while the term ‘domicil’ relates rather to the legal residence of a person, or his home in contemplation of law. ‘Domicil’ is not, in a legal or technical sense, synonymous with ‘residence’. The term ‘domicil’ is of more extensive signification, the word ‘residence’ commonly importing something less than domicil. The essential distinction is that the word ‘residence’ involves the intent to leave when the purpose for which one has taken up his abode ceases. The term ‘domicil’ involves no such intent. Domicil inclules residence, with an intention to remain; while no length of residence, without the intention of remaining, constitutes domicil. In determining whether a person is a resident of a particular state, the question as to his domicil is not necessarily always involved; for he may have a residence which is not in law his domicil. A person may have more than one residence at the same time, but he can have but one domicil.

“Although the terms ‘domicil’ and ‘residence,’ when used in a technical, legal sense, are not convertible, when used in a loose, general way they may be construed as synonymous.” 14 O. Jur., 567 et seq.

A place of residence is a matter of choice, and where an army officer has indicated his choice by purchasing property within the state and establishing his home therein which he continues to maintain, he cannot be served by publication, notwithstanding his abode is by compulsion at some army post in another state or country where he has been stationed oy the government. Mary R. Millis v. John Millis, 17 O. N. P. (ns) 254, 25 O. D. N. P. 370.

When used in statutes the word “residence” is usually construed as being synonymous with “domicil” according to the great majority of decided cases enumerated under the word “residence” as found in 37 Words and Phrases (Permanent Edition) p. 316 et seq. In Ohio, however, it has been held that the term “resident” as used in §10509-1 GC (§2113.01 R. C.), is not synonymous with the term “domiciled” in either §10504-10 GC (§2107.09 R. C.), or §10504-15 GC (§2107.11 R. C.). Overlander v. Brewer, Judge, 147 Oh St 386.

The phrase “usual place of abode,” as respects service of process, means the place where a person has his fixed permanent home (the place to which he intends to return). McGill v. Miller, 37 S. W. (2d) 689, 183 Ark. 585.

“Usual place of abode,” within the meaning of a statute relating to service of process, was held to be the house in which the man’s wife or children are living, although he may have been absent for a considerable period of time at time of service of process. Shephard v. Hopson, 86 S. W. (2d) 30, 191 Ark. 284.

Change of abode is accomplished when a person removes from one place with the intention of abandoning such place of abode and establishing residence in another locality without an intention of returning to the place from which he has removed. The word “residence,” as used in the Ohio Constitution (Article 5, Section 1), has substantially the same meaning as “habitation,” “domicil,” or “place or abode.” Sturgeon v. Korte, 34 Oh St 525. The words “usual place of residence” mean the place of abode. Forbes v. Thomas, 35 N. W. 411, 418, 22 Neb. 541.

In a question involving the leaving of a copy of summons at “the usual place of residence of the defendant” in a separate maintenance action, it was held that the words “residence” and “usual place of residence” are generally synonymous with the term “domicil” and that the residence essential to conferring jurisdiction upon the Court is a legal one equivalent to the domicil of the defendant. Mudge v. Mudge, 196 N. W. 706, 111 Neb. 403. It is held that, in a divorce action, the word “residence” means domicil. 12 O. N. P. (ns) 221.

A careful study of the preceding cases dealing with “domicil” and “residence” convinces this Court that, while the Legislature did not intend the words “usual place of residence” in sub-section (B) of §2101.26 R. C. to be used synonymomously with the word “domicil,” it did intend said phrase to mean the place where a person has his fixed permanent home and to which, upon leaving for any temporary purpose, he intends to return. Since Richard A. Case, as shown by the testimony, is located temporarily in Alaska, and since his permanent residence and domicil is in Hamilton County, Ohio, his “usual place of residence” is in said county.

The Court, under the circumstances of this case, finds that notice of the admission to probate of the will of Theodore Case; deceased, must be given to both the minor (who is over fourteen years of age)- and his mother. The mother, being a competent person, can waive the issuance of said service.

Under the provisions of §2101.26 R. C., service of such notice may be made upon the mother (the minor being absent from the country) by delivering such notice or a copy thereof to her, and service of such notice may be made upon the mother and the minor by leaving such notice or a copy thereof at their usual place of residence on Fleming Road, Wyoming, Ohio, or by depositing an envelope containing such notice or a copy thereof in the registered mail with postage prepaid, addressed to each of them at said Fleming Road Address, provided such envelopes are not returned by the postal authorities as undelivered.


author: By CONN, J.

text:
    EGGERS et, Appellants, v. MORR et, Appellees.
    Ohio Appeals, First District, Hamilton County.
    No. 7806.
    Decided December 28, 1953.

      Matthews & Matthews, Cincinnati, for appellants.
    C. Watson Hover, Pros. Atty., William J. Schmid, Carl B. Rubin, Asst. Pros. Attys., Cincinnati, for appellees.
    (FESS, CONN and DEEDS, JJ, of the Sixth District, sitting by designation.)
   OPINION

By CONN, J.

This is an original action filed in the common pleas court by plaintiffs on behalf of themselves, and many others similarly situated, against the defendants, the county commissioners and County Building inspector, respectively, of Hamilton County. Plaintiffs pray for injunction against defendants, restraining them from enforcing a certain resolution entitled “Zoning Amendment No. 30” adopted by the Board of County Commissioners May 26. 1953, for the purpose of changing the zoning of a parcel of land in Sycamore Township of said county consisting of 134 acres from residential to heavy industrial.

The trial court sustained the demurrer of defendants to plaintiffs’ amended petition. Plaintiffs not desiring to plead further, on motion of defendants the amended petition was dismissed at plaintiffs’ costs, from which judgment an appeal was taken by plaintiffs to this court on questions of law.

Three grounds were specified in the demurrer: that the action was not brought within the time limited for the commencement of such actions; that the court had no jurisdiction; and that the amended petition did not state facts which show a cause of action.

The judgment entry did not recite on which specification, or specifications, the demurrer had been sustained. However, in brief and oral argument of the parties, each of the three grounds were presented, although with some variation of statement.

The initial issue presented on the record is the claim of defendants that plaintiffs’ amended petition for an injunction is in character an appeal from the action taken by the Board of County Commissioners. On this thesis, defendants urge that, as plaintiffs’ action was not begun within ten days following the adoption of the resolution by the Board, as provided in §2505.07 R. C. (§12223-7 GO, the action was not commenced within time.

It is apparent that plaintiffs’ action for an injunction has all the earmarks of an original action. Pursuant to the praecipe for summons in the usual form of an original action, defendants were served with summons, and thereafter, by demurrer, raised the several issues as above pointed out.

It may be pertinent to note that the attack made by demurrer rather than by motion to dismiss, accords with the procedure in original actions.

Defendants rely on the case of Schneller v. Board of County Commissioners, 91 Oh Ap 523, in this court, wherein a motion for judgment on the pleadings was granted. The court’s per curiam opinion does not contain a detailed statement of the fact issues raised in the trial court or what judgment was entered. It does appear that the court did not determine whether the remedy provided in §303.12 R. C. (§3180-11 GC), was exclusive or whether plaintiffs could invoke the original jurisdiction of the common pleas court.

On the record before us, we are confronted with a situation clearly distinguishable from the Schneller case.

It appears that plaintiffs, while engrossed momentarily in the throes of uncertainty, alleged that due to the nature of the case and the number of people interested, it was impossible for them to file their petition within ten days. These allegations give evidence of some inconsistency in the mind of the pleader, as to the nature of this action, but they do not change its character.

The defendants challenge the jurisdiction of the common pleas court on the ground that §303.12 R. C., provides an exclusive and adequate remedy for plaintiffs under the facts and circumstances set forth in their amended petition. The logic of this contention embraces the conclusion that even though the action taken by the Board was violative of plaintiffs’ constitutional rights, and therefore void, plaintiffs nevertheless would have no standing in a court of equity by way of an original action. We are not in accord with this contention.

As this action seeks an equitable remedy and relief from the force and effect of a resolution adopted by the Board, amending the zoning regulations which had been previously adopted for Sycamore Township, and which resolution is allegedly unlawful and void, we find ourselves in a field of the law that has been extensively explored, as shown by the reported cases.

Zoning ordinances are enacted pursuant to the police power of the state,- and to be valid, such ordinances “must bear a substantial relation to, or be reasonably necessary, for the public health, safety, morals or general welfare.” Furthermore, where an administrative board, charged with the duty of administering zoning regulations or determining the necessity of modifying an existing zoning ordinance, and in the performance of such duties acts within its sound discretion, a court of equity will not substitute its judgment for that of the administrative authority unless the action taken is unlawful and void as a clear abuse of power.

Pritz v. Messer, 112 Oh St 628; Youngstown v. Kahn Bros. Bldg. Co., 112 Oh St 654; State, ex rel. Cook v. Turgeon, Bldg. Commr., 84 Oh Ap 287.

The pioneer case of Euclid v. Ambler Realty Co., 272 U. S., 365. 47 Sup. Ct. Rep., 114, sheds some light on the issue now under consideration. In this case the realty company, the appellee, being the owners of 68 acres of land in the Village of Euclid, made a broadside attack on the comprehensive zoning plan which had been adopted by the village council.

In the District Court, the village moved to dismiss the bill on the ground that the realty company had made no effort to obtain a building permit or apply to the zoning board for relief. The trial court overruled the motion to dismiss. The Supreme Court in its opinion, in considering the question of the trial court overruling .the motion to dismiss, pointed out that the effect of the allegations of the bill was that the “ordinance of its own force operates greatly to reduce the value of appellee’s lands and destroy their marketability for industry, commerce and residential uses.” The attack made was directed against the ordinance in its entirety.

It was stated further:

“Assuming the premise, the existence and maintenance of the ordinance in effect constitutes a present invasion of appellee’s property rights and a threat to continue it. Under these circumstances, the equity jurisdiction is clear. See Terrace v. Thompson, 263 U. S., 197, 44 S. Ct., 15; 68 L. Ed., 255; Pierce v. Society of Sisters, 268 U. S., 510, 45 S. Ct., 571, 69 L. Ed., 1070; 39 A. L. R., 468.”

While the Supreme Court reversed the trial court and upheld the zoning ordinance, it affirmatively held that an original action in a court of equity would lie under the allegations in the bill that the ordinance in effect would invade plaintiff’s property rights. It was also held that a

“Zoning ordinance must be clearly arbitrary and unreasonable and without substantial relation to public health, safety, morals, or general welfare before it can be declared unconstitutional.”

In the recent case of State, ex rel. v. Village of Westlake, 154 Oh St 412, in an action in mandamus, it was held that the applicant for a building permit, which was refused on the ground that the issuance thereof would violate a zoning ordinance, must first exhaust her administrative remedies.

In support of her contention, relator relied on Village of Euclid v. Realty Co., 272 U. S., 365 (supra). Judge Taft, commenting on this contention (p. 417) said: tacked as unconstitutional, it is not necessary first to apply to the Board of Appeals and thus exhaust the remedy provided by the zoning ordinance, relator relies upon Village of Euclid v. Realty Co., 272 U. S., 365, 71 L. Ed., 303, 47 S. Ct. 114. That case was an action to enjoin the enforcement of a zoning ordinance. The Supreme Court of the United States did hold that it was not necessary for the plaintiff in that case to exhaust its remedies under the ordinance before seeking such an injunction. However, in support of that conclusion, the court pointed out that the effect of the ordinance, there claimed to be unconstitutional, was to reduce the value of the plaintiff’s land and destroy its marketability.”

“In support of her contention that, where the whole ordinance is at-

Many authorities recognize the rule that where an original and comprehensive zoning plan has been adopted, which places the property of a given area in particular use classifications, owners of property in such areas have a right to rely on the classifications so made in the use and development of their respective properties. However, where the change in the general plan is accomplished In the exercise of discretionary power, a court of equity will not interfere by way of injunction unless it is made to appear that the action taken amounts to an abuse of discretion or is unlawful and in violation of the property rights of the complainant.’ In other words, a valid amendment may be made to a comprehensive zoning plan, even when it is considered as spot zoning, where such amendment sustains a proximate relationship to the public welfare and is within constitutional limitations. On the other hand, when it is shown that the change effected by the amendment is arbitrary, unreasonable and violative of constitutional rights, a court of equity will grant relief in an original action.

42 O. Jur., 812, Sec. 13; 58 Amer. Jur., 1033, Sec. 171; 138 A. L. R., 500, 503; 149 A. L. R., 292; Clifton Hills Realty Co. v. Cincinnati, 60 Oh Ap 443; State, ex rel. Kuhlman v. Cincinnati, 18 O. O. 405; Eden v. Town Plan & Zoning Commission of Bloomfield, 139 Conn., 59, 89 Atl. 2nd, 746.

See: Cleveland Trust Co. v. Village of Brooklyn, 92 Oh Ap 351; See: State, ex rel. v. Joseph, 139 Oh St 229.

We cite the case of Domito v. Village of Maumee, 140 Oh St 229. which gave recognition to the rule we consider applicable in the instant case. It was held that an assessment which contravened Sec. 19, Art. I, of the Ohio Constitution may be enjoined in an original action in a court of equity on the ground of invalidity, and any failure to make objection, after due notice, does not estop a property owner from resisting the collection of the assessment on constitutional grounds. We quote Sec. 2 of the syllabus:

“While failure to make written objection or protest, as provided by law, to the imposition of an assessment against private property, after due notice of the improvement and the amount to be levied therefor, precludes the owner from escaping payment by asserting non-compliance with statutory requirements on the part of the assessing body, it does not estop him from resisting collection on constitutional grounds.” Laskey v. Hilty, 91 Oh Ap 136, 144.

It is our conclusion that plaintiff may maintain an original action in a court of equity, if the action taken by the Board of County Commissioners were unlawful or were violative of the constitutional rights of plaintiffs.

We come now to the final issue. Does the amended petition of plaintiffs state a good cause of action, when the averments therein and the inferences that arise are liberally construed in plaintiffs’ favor and considered in the light of equitable procedure?

It appears from the material averments in the amended petition that in the year 1948 the Rural Zoning Commission of Hamilton County, with its engineers, made a survey of all unincorporated territory in said county, including each township, of what would be the normal growth for years to come, and at large financial cost; that said Board of County Commissioners determined it was necessary to zone said unincorporated territory as the only means of protecting property owners from the harmful use of neighboring property; that thereupon the Board of County Commissioners passed “The Zoning Resolution” on August 10, 1949, and it was submitted to the voters of the townships; and that said resolution was favorably acted upon by the voters of Sycamore Township in said county.

'That as a part of said zoning resolution, a zone map of said county was adopted, dividing said county and townships into districts, as residential A, B and C; retail business, D; light industry, F; heavy industrial, G; and resort, J.

It was further alleged that on December 30, 1952, an application for zone change was made by the agent for the owners of property in Sycamore Township bounded by Kenwood Road, Creek Road, Cornell Road and Blue Ash Airport, containing 134 acres; that said application set forth that the reasons for zoning change from residential A, B and C to heavy industrial G was “due to lack of sufficient land in the county which was zoned industrial, and thus to utilize the land for its highest and best use.”

That thereafter hearings were had and finally the Board of County Commissioners, with the recommendation of the Hamilton County Zoning Commission and Regional Planning Commission, approved said application and on May 26, 1953, said Board adopted a resolution title “Zoning Amendment No. 30,” which resolution approved a change of zoning as to above located parcel from residential A, B and C to heavy industrial G.

Plaintiffs averred that the conditions which caused said property to be zoned had not changed in the interim, except that many new residences nad been constructed in the area, relying on said zoning, and that the County of Hamilton, in its general zone planning, had provided sufficient districts for industrial use and in excess of the requirements thereof.

On the basis of the foregoing operative facts, plaintiffs further alleged that the Board of County Commissioners acted arbitrarily, capriciously, and unreasonably, to meet the demands of those who contended that the change was necessary to create additional funds for School purposes; that unless restrained, building permits will be issued for the erection of industrial type of buildings on said 134 acres of land in Sycamore Township.

It was further averred that the use of said land for industrial purposes will cause congestion of population; increased traffic problems; over-crowded schools; destroy the privacy of plaintiffs' property; create great noise; depreciate property values and otherwise do great harm to the County Zoning Plan and property owners.

That said zone change violates the Constitution of the State of Ohio and of the United States; that said resolution is unreasonable, denies the equal protection of the laws and is not a proper exercise of police power, as it sustains no reasonable relation to public health, safety and welfare of said local community and the entire county; that irreparable damage will be suffered by these plaintiffs and numerous persons who have built homes in reliance upon said zoning plan and for which they have no adequate remedy at law. Plaintiffs pray that said resolution be declared unconstitutional, and for an injunction.

Under our procedure, a demurrer to a pleading admits all allegations of fact that are well pleaded and. all reasonable inferences that arise thereon. Applying this rule to the amended petition of plaintiffs, it is our opinion that a good cause of action is alleged.

In Clifton Hills Realty Co. v. Cincinnati, 60 Oh Ap 443 (supra), the court held that the amended petition of plaintiff was good as against a demurrer, and in commenting on the pleading so attacked (p. 452) said:

“As will be seen from the summary of the allegations which we have made, the plaintiff has alleged in considerable detail facts contradicting any possible inference that this amendment was enacted to promote some object coming within the police power of the city, and then the action is characterized as arbitrary and unreasonable. Upon demurrer, these allegations must be accepted as facts and, if so, they disclose an invasion of the constitutional rights of the plaintiff. The statement of the trial court that good and sufficient reasons for this rezoning may well be imagined, might be justified by the evidence at the trial upon the facts, but is inadmissible upon demurrer in the presence of the positive allegations of fact in the amended petition.”

It is our opinion that the action begun by plaintiffs was an original action; that defendants should be required to answer the several daima made by plaintiffs and that the basic issue, whether or not the action of the Board of County Commissioners in effecting said zoning change bears a substantial relation to or was reasonably necessary for the public health, safety, morals and general welfare, and therefore within the police power of the state, should be adjudicated on its ’merits as an original action.

Judgment reversed and cause remanded for further proceedings.

FESS & DEEDS, JJ., concur.