author: By PHILLIPS, PJ.

text:
    BARBISH, Plaintiff-Appellee, v. OHIO FINANCE COMPANY, Defendant-Appellant.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3371.
    Decided January 19, 1951.
    Leo Waldman, Youngstown, for plaintiff-appellee.
    Mendelssohn & Copperman, Youngstown, for defendant-appellant.
   OPINION

By PHILLIPS, PJ.

With plaintiff’s consent, by signing his name thereto plaintiff’s wife executed a “Bailment Lease” for $185.00 to Federal Furs, later known as Leavitt Furs, in New Castle, Pennsylvania, in payment of a fur coat. The balance due on that account allegedly was $40.00 when with other such leases and accounts it was sold, assigned and transferred to defendant on December 16, 1946, of all of which defendant contends plaintiff was notified, but which he denies. This amount plaintiff contends he was to continue to pay Federal Furs (later known as Leavitt Furs) and not defendant.

On October 21, 1947, defendant’s agent and employee contacted plaintiff for payment of such balance, who exhibited to him a receipt evidencing payment in full to Leavitt Furs of plaintiff’s account with it. On that date plaintiff refused to pay defendant the amount allegedly due on such “Bailment Lease” for the reason that it had been “paid in full.”

After notifying plaintiff that unless the amount due on such “Bailment Lease” was paid on a named date that legal action would be instituted to collect it, and after full consultation with counsel, who were employed by and devoted their time to the work and interests of defendant exclusively, it authorized its local counsel to commence legal action against plaintiff to enforce collection of the amount claimed due it.

On February 13, 1948, defendant secured a judgment for $40.00 against plaintiff and subsequently secured an order of attachment of his wages in the municipal court of Youngstown, which subsequently was released and dismissed.

Plaintiff sued defendant in the court of common pleas to recover damages from it for malicious prosecution and the jury( returned a verdict for plaintiff for $1500.00, upon which the trial judge subsequently duly entered judgment, and from which defendant appealed to this court on questions of law.

By sixteen assigned grounds of error, some of which errors will be combined and disposed of as one error, defendant contends that “the court erred in overruling the demurrer of defendant-appellant made at the close of the opening statement of plaintiff-appellee; erred in excluding competent evidence offered by the defendant-appellant; erred in admitting incompetent evidence offered by the plaintiff and objected to by defendant-appellant; erred in overruling defendant’s motion for a directed verdict made at the close of plaintiff’s testimony; erred in refusing to give defendant’s special charge No. 2 to the jury before argument of counsel pertaining to advice of counsel; erred in the general charge to the jury”; and “erred in overruling defendant’s motion for a directed verdict made at the close of all the evidence.” Defendant further urged “that the excessive damages awarded by the verdict of the jury and upon which judgment was rendered appears to have been given under the influence of passion and prejudice; that the verdict of the jury is contrary to law and is against the decided and manifest weight of the evidence, is the result of passion and prejudice against this defendant-appellant; that the judgment rendered upon the verdict of the jury is not sustained by sufficient evidence; that the judgment of the court rendered upon the verdict of the jury is contrary to law; that other errors of law occurred at the trial and excepted to by the party making the application; misconduct on the part of counsel for plaintiff-appellee”; and “that the court erred in overruling the motion for judgment nonobstante veredicto and motion for new- trial.”

We are unable to determine from the oral argument or brief of counsel for defendant why they contend that the trial judge erred to defendant’s prejudice in overruling its demurrer to plaintiff’s opening statement, and we find none from reading the opening statement to which reference is made.

It is our opinion that the trial judge did not err to plaintiff’s prejudice in his ruling on defendant’s demurrer to the opening statement of plaintiff’s counsel.

Now defendant contends that the trial judge erred to its prejudice in the exclusion of competent evidence offered by it on the question of notice to plaintiff of its purchase of her account from Leavitt Furs and the necessity of payment on her account thereafter being made to it; and in the admission of incompetent evidence offered by plaintiff as to his feelings, state of mind and humiliation suffered by him after his wages were attached; and of his wife concerning payment of such account in full by her. The volume of the evidence of which complaint is made is such that only general reference can be made to it and keep the length of this opinion within reasonable bounds. We havé read the bill of exceptions and considered the error urged with reference to the admission of incompetent evidence offered by plaintiff and exclusion of competent evidence offered by defendant, and find that the trial judge did not err in the respects charged, nor as urged by defendant in making remarks prejudicial to defendant In ruling upon such evidence.

Defendant waived its right to rely on the claimed error that the trial judge erred to its prejudice in overruling its motion for a verdict to be directed in its favor when it accepted the ruling of the court and proceeded with its defense and introduced evidence in its own behalf. Halkias, Appellee, v. Wilkoff Co., Appellant, 141 Oh St 139.

The trial judge refused to charge the jury in writing before argument the following proposition of law submitted to him by counsel for defendant:—

“Now, Ladies and Gentlemen of the Jury, one of the defenses to this action is that the defendant relied upon the advice of attorneys. The defendant claims that before the action was begun in obtaining judgment in the Municipal Court in the City of Youngstown, Ohio it consulted and was advised by attorneys, learned in the law, and was advised to institute these proceedings, or rather, the proceedings in the Municipal Court. Whether or not this is a good defense depends upon the question as to whether or not the defendant did what the law in the case required of the defendant. If the defendant took the pains to inform itself of all the facts which by reasonable diligence could be obtained, and then submitted them truthfully to the attorneys and if the attorneys advised the defendant that it had ground for taking judgment against the plaintiff, and then if the defendant, taking the advice of the attorneys instituted the proceedings and carried it on after-wards in the honest belief that it had reasonable ground for carrying it on this relieves it from the imputation of malice, although the defendant failed in the said Municipal Court, and as a matter of fact the advice of the attorneys was erroneous. If the evidence satisfies you that it rebuts the charge of malice, that is, equalizes the evidence of the plaintiff as to malice, then it defeats the plaintiff’s cause, and your verdict should be for the defendant.”

In our opinion the trial judge stated a good reason for refusing to charge the jury in writing before argument the quoted request as it was submitted to him when he said:—

“The request deals with advice of counsel as a defense in a case of malicious prosecution and the request as submitted had only to do with advice of counsel as to the institution of the proceedings and said nothing whatever about the matter of the attachment of plaintiff’s wages. The court is of the opinion that the whole basis of plaintiff’s case is one for a wrongful attachment and that therefore any instruction as to advice of counsel should be concerning advice given, on the subject of the wrongful attachment, not the mere institution of the proceedings.”

The bill of exceptions discloses the following colloquy had between the trial judge and counsel for defendant:—

“Mr. Mendelssohn: I want the record to show counsel for the defendant suggested to insert the word ‘attachment’ in the proceedings, in the charge; the court refused counsel permission.”

The trial judge refused to permit an amendment to such requested charge and refused to submit it in an amended form to the jury, and said:—

“Court: The record may show counsel for the defendant wanted to insert the word ‘attachment’ but the court said that would require rewriting the entire charge and he wouldn’t accept any such procedure at this time. Exceptions granted.”

The trial judge did not err to defendant’s prejudice as charged in this assigned ground of error.

In his opening statement to the jury counsel for plaintiff said:—

“There was a hearing on the attachment down there before Judge Anzelloti and upon the hearing the case was dismissed as against the plaintiff, in other words, the ruling was that the case was taken out of court.”

Defendant’s counsel objected on the ground that plaintiff’s counsel misstated a fact and in ruling on the objection the trial judge said “you are going to have an opportunity to state the facts.”

In his argument to the jury counsel for plaintiff said:—

“The court below tried the case and decided it on what Mr. Copperman felt was one issue and that is the fact, and then the court dismissed the case against Mr. Barbish and found that there was no justifiable cause for holding him responsible for that $40 and thereby decided the issue of notice as against the Ohio Finance Company.
“* * * Ladies and gentlemen, one thing more, and that is that you have a right to give what the court 'will explain to you is exemplary damages or punitive damages, it is for one purpose, as the bringing of this lawsuit is in my mind and Mr. Barbish’s mind, to make the Ohio Finance Company and others like the Ohio Finance Company cognizant of the fact that they can’t take advantage of an individual, and as a punishment, as an example to that company and every other company in like position, that they had better take care when they interfere with the rights of human beings and citizens of this country, and that isn’t something that I can measure or you can measure; you must consider the standing of this company, the size of it and give such damages then, and the judge will tell you that, in order to be a punishment and an example to them in their own financial and business position.”

The trial judge overruled the objection of counsel for defendant and ordered plaintiff’s counsel to proceed, but suggested that plaintiff’s counsel bring “his argument to a conclusion.”- Thereupon plaintiff’s counsel said:—

“All right, Your Honor. Now so far as the lower court is concerned there was one issue, the issue of notice, as stated by Mr. Copperman, and the court down there found against them on that issue of notice.”

Again counsel for defendant objected and the trial judge said:—

“The court entered judgment for the defendant, the case was terminated in the plaintiff’s favor here; the reasons the court decided that way are not given.”

Counsel for defendant contends that the foregoing statements and arguments of plaintiff’s counsel prevented it from having a fair and impartial trial. We do not think so.

In his general charge to the jury the trial judge said:—

“However, if you found it weighed even to a small extent in favor of his claim then he could be said to have established the affirmative by the greater weight of the evidence and to have sustained his burden of proof.
“* * * The word malice means an intent or purpose to do a wrongful act to the injury of another without reasonable excuse. I will repeat that: malice means the intent or purpose to do a wrongful act to the injury of another without reasonable excuse.
“* * * And sought that counsel’s advice before bringing these court proceedings and included the attachment.
“* * * I told you in the matter of punitive damages it entirely lies with you whether you allow them or not, but if you do allow them you may take into consideration in awarding the amount the attorney fees of counsel in this case. In compensatory damages, that is the part of damages which compensate, you would only consider the cost by way of attorney fees to the plaintiff of resisting the proceedings in municipal court.”

Defendant contends that in the quoted language of his general charge the trial judge erroneously charged the jury on the scintilla rule; repeated the definition of malice, thus emphasizing it to defendant’s prejudice; used the word “court proceedings” erroneously; and erred in charging on compensatory and punitive damages and allowance of attorney fees.

We have read the general charge of the trial judge to the jury, and considering it in its entirety we conclude that the trial judge not only did not err to defendant’s prejudice in any of the respects charged by it, but we believe his charge is based upon the evidence in the case we review.

In our opinion the verdict of the jury returned in this case was based upon sufficient evidence, is not against the manifest weight of the evidence, and is not “against the decided and manifest weight of the evidence,” except as noted herein.

We find nothing in the evidence submitted to the jury in the case we review even tending to indicate that its verdict was the result of passion nor prejudice toward defendant; nor that “the excessive damages awarded by the verdict of the jury and upon which judgment was rendered appears to have been given under the influence of passion and prejudice,” but we believe it was excessive.

Except insofar as the verdict of the jury is excessive the verdict of the jury is not contrary to law.

Appellant’s counsel has failed to call our attention to “other errors of law occurred at the trial and excepted to by the party making the application,” as alleged as a ground of error, nor to comply in respect thereto with the provisions of Rule VII of this court that his briefs “shall contain a statement of the questions presented and a succinct statement of so much of the case, referring to the pages of the record, as is necessary to show how the questions arose, together with a statement of the authorities relied upon.” Accordingly we will not pass upon this assigned ground of error.

The evidence in this case is not such that reasonable minds could reach but one conclusion on the issues presented in the case we review as to action of defendant based on advice of counsel, followed in good faith, and the truth or falsity of the facts given to counsel when seeking such advice; existence of probable cause; defendant’s actual or legal malice toward plaintiff; the authority of plaintiff’s wife to sign a contract authorizing defendant to take judgment against him by confession, nor any other issues in the case.

Questions were presented for the determination of the jury. Accordingly the trial judge did not err in overruling defendant’s motions for a verdict to be directed in its favor made at the close of all the evidence and for judgment to be entered in its favor notwithstanding the verdict of the jury rendered against it.

The judgment of the court of common pleas is affirmed if plaintiff accepts a remittitur of all of the judgment entered in his favor in excess of $750.00, otherwise the judgment of the trial court is reversed and the cause is remanded for a new trial on the ground that the verdict of the jury and judgment entered thereon are excessive.

NICHOLS, J, GRIFFITH, J, concur in judgment.


source: Caselaw Access Project

author: By HORNBECK, PJ.

license: Public Domain

text:
    MANDALLA, Appellee, v. BOARD OF LIQUOR CONTROL, Appellants.
    Ohio Appeals, Second District, Franklin County.
    No. 4529.
    Decided March 26, 1951.

      Amer, Cunningham & Schnur, Charles G. Schnur, of Counsel, Akron, for appellee.
    Hon. Herbert S. Duffy, Atty. Geni., Hon. C. William O’Neill, Atty. Geni., Charles T. Kaps, Thomas R. Lloyd, Asst. Attys. Geni., Columbus, for appellants.
   OPINION

By HORNBECK, PJ.

This is an appeal from an order of the Common Pleas Court reversing an order of the Board of Liquor Control sustaining and affirming the action of the Department of Liquor Control in “refusing (Mandalla) the appellant” (to the Board and in Common Pleas Court) “the issuance of a Class D-5 permit” and ordering the Department of Liquor Control to issue a Class D-5 permit to the appellant (Mandalla).

There are four errors assigned all of which question the validity of the order of the Common Pleas Court.

Joseph Mandalla, the appellee here, proffered an application for a D-5 permit to the Department of Liquor Control. It is stated, in all of the orders, pleadings and briefs of the parties that pursuant to Regulation No. 70 of the Board of Liquor Control the Department refused to accept this application.

Mandalla insisted upon his right to be granted a permit because in the City of Akron, where he desired to operate his business, the license of a permittee had been revoked after April 11, 1949, the effective date of Regulation No. 70.

It was urged upon the appeal to the Board of Liquor Control that such proceedings did not lie because the Department had not' refused to issue a permit but had refused to accept the application for a permit. The Board ruled against this contention, entertained the appeal and affirmed the action of the Department. Mandalla then prosecuted his appeal to the Common Pleas Court with the result as heretofore set out in the order of that Court. In the Common Pleas Court it was urged that an appeal was not appropriate because the order of the Department was a failure to act and that a mandamus action seeking to require the Board to act would have been the appropriate proceeding.

The situation leading up to these proceedings arose when Mandalla filed his application for a permit in due form with the Department of Liquor Control. Its cashier, upon the authority of the Department, returned the application because of Regulation 70. This action was tantamount to a formal order of the Department. From this order Mandalla prosecuted his appeal to the Board of Liquor Control. The order of the Board upon which the appéal to the Common Pleas Court was predicated is “that the order heretofore made by the Director of the Department of Liquor Control, refusing to accept the application for a Class D-5 permit be, and the same is, sustained and affirmed.” (Emphasis ours.)

Regulation No. 70 and other regulations are promulgated by the Board of Liquor Control by virtue of §6064-3, 1 (a) GC. But the proposition upon which this appeal must be determined goes to the jurisdiction of the Board of Liquor Control to entertain Mandalla’s appeal from the action of the Department. This question is not raised on this appeal by the appellant although it was suggested in the oral presentation in this Court. The matter must be determined by recourse to the applicable provisions of the General Code. Sec. 6064-3 Par. 3, GC, defines the appellate jurisdiction of the Board. It provides:

“The board of liquor control shall have the power except as otherwise provided in this section:
3. To consider, hear and determine all appeals authorized by this act to be taken from any decision, determination or order of the department and all complaints for the revocation of permits.” (Emphasis ours.)

This provision requires us to determine what appeals applicable to the situation here are authorized by the Liquor Control Act. This is found in §6064-27 GC which provides:

“Any person deeming himself aggrieved thereby may appeal to the board of liquor control from the action of the department refusing to issue a permit.”

This is the only applicable section of the Code and thus our test of jurisdiction of the Board of Liquor Control to entertain the appeal from the order of the Department is limited to the narrow question whether or not such order was a refusal to issue a permit to Mandalla. We are satisfied that the order was not a refusal to issue a permit as was contemplated by the Liquor Control Act. It is true that by the action of the Department Mandalla was precluded from the possibility of securing a permit but that is not equivalent to a formal refusal of the Department after entertaining and passing upon his application for a permit. The issue on the refusal to issue a permit was not and, of course, could not under the circumstances be determined by the Board.

Some observation is made in the record by counsel for the Department that subject only to the right of the Board to deny to Mandalla his right to file his application he would be eligible for a permit. There are so many factors involved preliminary to the granting of a permit, and especially so in the situation here presented, that it would make for inconsiderate action to order a permit to be issued when the only order under review is one denying the right to apply for a permit.

There is indeed a nice question, which we do not pass upon, whether the Board has the authority under any circumstance to make an order refusing the right of an individual to file his application for the granting of any one of the permits classified under §6064-15 GC. The power is given to the Department under §6064-8 (2) GC:

“To grant or refuse permits for the manufacture, distribution-, transportation and sale of beer and intoxicating liquor and the sale of alcohol, as authorized or required by this act.”

And §6064-16 GC which provides:

“Applications for regular permits authorized by this act may be filed with the department of liquor control at any time after this act becomes effective.”

We hold that the remedy of the plaintiff-appellant here was in mandamus to compel the Department to accept his application for a permit and to act upon it and that the order made by the Department refusing him the right to file his application was not an appealable order; that there was no proper appeal perfected and, therefore, the subsequent action of the Board of Liquor Control and the Common Pleas Court on the appeal from its order were without jurisdiction and unauthorized.

Inasmuch as we may be in error in our ruling on the question which we have just discussed, we pass upon other errors assigned. All other errors may be encompassed in the claim on the appeal that Regulation is not a valid exercise of the authority of the Board of Liquor Control. Regulation 70 is as follows:

(1) “Effective on the 11th day of April, 1949, the number of C-l, C-2, D-l, D-2, D-3, D-3A, D-4 and D-5 permits which may be issued within the State of Ohio and within each political subdivision thereof is hereby limited to a figure which shall be equal to the number of permits of each above designated class respectively issued and outstanding in the State of Ohio and in each political subdivision thereof as (2) of April 11, 1949, and during the effective period of this regulation no application for such permits shall be accepted for filing and no new permits shall be issued except permits issued pursuant to the provisions of Regulation 6, and except, also, new permits issued upon the expiration of any existing permits to the same permit holder for the same location. This regulation shall not be construed so as to increase the number of permits of the above designated classes permissible under §6064-17 GC.

We have divided the Regulation into two parts. The first part is reasonable and a definite and proper exercise of the authority of the Board to limit the number of permits to be issued in accord with §6064-3, 1 (b) GC.

The general purpose of the second part of the Regulation to reduce the number of permits to be issued is commendable. No one should be heard to say that a reduction in the number of D-5 permits would unfavorably affect the public welfare. The Regulation says that no new permits shall be issued except permits issued pursuant to Regulation 6. In the laws pertinent to the Ohio Liquor Control Act and the Ohio Board of Liquor Control, issued by the Department of Liquor Control in 1950, Regulation 6 could in no manner be given application to the subject matter of Regulation 70. In the presentation of this case it has been agreed that the purpose of this part of the Regulation is to allow, under stated conditions, transferees of permits to be granted new permits. This provision is incorporated in Regulation No. 14 of the Board.

The classifications set up in the second part of the Regulation are, in our judgment, unreasonable and therefore invalid. It attempts to fix the number of permits to be issued upon a variable basis without relation to the central purpose of the Liquor Control Act. This purpose is that the number of places authorized to handle and sell liquor shall, within statutory limitation, be governed by considerations of public health, welfare and morality. By the rule the number of permits to be issued is determined by the number of persons already qualified, resident permittees, or those who may be transferred from other places who elect to remain in the business of operating D-5 permits. Thus, if there be a hundred permits outstanding on April 11, 1949, in each of two political subdivisions, in the succeeding year the number may remain at one hundred in one and be reduced to ninety in the other, depending entirely on the action of the permittees or transferees in making applications for renewals.

The last part of the Regulation discriminates in favor of permit holders and transferees of permits. If they continue to operate the quota will be held at the maximum. If they decide to retire from business the number will be reduced. This advantages the permit holder not only by assuring his continuance of the right to operate his business, if he desires, but also affords him an advantage of possible monetary value should he elect to retire and thereby reserve the field for his former competitors in business.

The right granted by a State to a permittee to traffic in intoxicating liquors is not a property right but merely a privilege extended under the police power of the State. It is essential to any system of regulation that applicants for the privilege of engaging in the sale of intoxicating liquors be given equal and fair consideration by the authority delegated to accord them such privilege. The effect of the latter part of Regulation 70 is a discrimination against all applicants other than permit holders. To use another illustration, if there are a hundred permit holders in a political subdivision on April 11, 1949, if the one hundred continue to operate and observe the rules of the Board they are entitled to continue and to have new permits issued to them. But, if there are ten permits revoked and ten other qualified applicants who desire to secure permits they may be given no consideration solely because they have not theretofore had permits. This basis of determination of the number of permits to be issued amounts to discrimination which, in our judgment, is not contemplated by the letter or the spirit of the Liquor Control Act.

We are in accord with the determination of the Common Pleas Court that parts of Regulation 70 are invalid.

The judgment of the Common Pleas Court ordering the Department to grant a permit to Mandalla will be reversed and the cause remanded.

WISEMAN and MILLER, JJ, concur.


author: By HOOVER, J:

text:
    DESANTIS, Plaintiff, v. ZEEL, Defendants.
    Common Pleas Court, Cuyahoga County.
    No. 609853.
    Decided March 28, 1951.

      W. P. Newton, Frank Leonetti, Cleveland, for plaintiff.
    Bloomfield, Fowerbaugh & Ray, and John F. Ray, Jr., Cleveland, for defendants.
   OPINION

By HOOVER, J:

This action for specific performance illustrates perfectly how conscientious laymen, by writing their own land contracts, can save for themselves unusually nice headaches, especially if they are courageous enough to tackle a description for the sale of a part of a gloriously irregular tract.

The scene of this heated battle is laid in Pepper Pike Village. There, fronting on Gates Mills Boulevard, the seller, who now finds herself a defendant, owned a certain sublot 8 which, through a bird’s eye, might be described as looking like two boxes, a smaller one resting on top a larger one, and the smaller hanging precariously over the edge of the larger thus forming quite a lateral jog and giving the impression that with a little shove it would tumble off. For rough purposes we shall say that Gates Mills Boulevard runs in an East-West direction and forms the southern boundary of sub-lot 8; and that the northern boundary is Bernwood Road which is parallel to Gates Mills Boulevard. Though this sub-lot extends 375 feet along Gates Mills Boulevard, it fronts only 300 feet on Bernwood Road.

The profile from the air looks something like this:

Bernwood Rd

Gates Mills Blvd

The buyer’s son conducted negotiations for the buyer. As a result, the buyer is now a plaintiff. To simplify the story we relate it as if the buyer had dealt for himself.

Desiring to acquire part of sublot 8, buyer opened negotiations in seller’s home. Buyer says it was agreed that he was to get one-half of sublot 8, with the slight exception that on Gates Mills Boulevard, (and in the bigger box) he was to get only 187 feet instead of 187% feet which would have been the exact half there; and that the reason he took 187 feet instead of 187% feet was to eliminate the awkward one-half foot. Under this interpretation, buyer would get half the small box and half the 300 feet frontage on Bernwood Road, ie, a Bernwood frontage of 150 feet.

Seller claims that she never agreed to sell half of sublot 8 even with the slight half foot variation; that what she agreed to sell was a certain part of sublot 8 fronting 187 feet on Gates Mills Boulevard; that the dividing line between the part she sold and the part she retained ran perpendicularly from Gates Mills Boulevard straight through to Bernwood and did not jog where sublot 8 jogs. Under this interpretation, buyer would not get half of the small box but only about' 1/12 of it; and would not get 150 feet frontage on Bernwood but only about 25 feet. .

Otherwise the parties are in perfect agreement. On two important things in particular do they agree:

1. That the part sold lies on the eastern side of sublot 8.

2. That the buyer was to get 187 feet along Gates Mills Boulevard, in fact, the 187 eastern-most feet there.

In picture form, the two contentions are as follows:

Stated most simply the question is — is the dividing line between what seller sold and what seller retained, just one straight line, or does it jog where sublot 8 jogs.

Unfortunately the parties didn’t seem to know they differed about this boundary line until after the deed was filed for record. The deed conveyed seller’s version. Buyer did not see the deed until after it was recorded. Buyer now seeks to compel a conveyance of his version.

There is sharp conflicting evidence supporting both contentions, but there is one bit of written evidence about which there is no dispute. Concluding their first negotiations, buyer gave seller a $100.00 deposit, and seller in her own handwriting gave buyer a receipt for

“one hundred dollars deposit on part sublot No. 8 — 187 feet to or through to Bernwood.”

Since this is the only written shred' between the parties themselves describing the parcel to be sold and since it was made before dispute arose and could color either’s contention, it is the most important factor in the case. If it throws any clear light on whether the boundary is straight or jogged, it must be given great weight. It does point a way.

Contracts for the sale of land are to be construed in the same manner as contracts generally. 40 O. Jur. 949, Sec. 44; 66 C. J. 650, Sec. 207. Generally too, they are construed most strongly against a vendor and against a party drawing up the contract. 66 C. J. 651, Sec. 208. See also 26 C. J. S. 361, Sec. 100 f. In a vendor-purchaser dispute, the court said in Monnett v. Monnett, 36 Oh St 30, 34-35:

“* * * the words will be taken most strongly against the person employing them, especially where he is the only party subscribing to the contract. The words of obligation in a contract, ‘are interpreted most strongly against the obligor, for it is presumed that he used those most favorable to his interests; and all doubtful terms or ambiguous words are to be construed against him. He who speaks, should speak plainly, or the other party may explain to his own advantage.’ State v. Worthington, 7 Ohio, pt. 1, p. 171.”

See also, 40 O. Jur. 949, Sec. 44. Moreover, words are usually interpreted according to their common, ordinary meaning. 9 O. Jur. 395, Sec. 172; 9 C. J. 153, Sec. 3.

Focusing now on the written description — “one hundred dollars deposit on part sublot No. 8 — 187 feet to or through to Bernwood” — what does it mean?

Undoubtedly what is sold is a part of sublot 8. Because the parties agree on it, the part sold is on the east side of the sublot; and its southern boundary, fronting on Gates Mills Boulevard, is the 187 eastern-most feet of the sublot’s southern boundary. The “187 feet” mean 187 feet in width. .The 187 feet width is not a stationary thing. It is on the march. It goes “to” something and it goes “through” something..

The 187 feet width goes through sublot 8. That is the only thing mentioned through which it could go. Besides, the rule of reason, as stated in 26 C. J. S. (Deeds) 358, Sec. 100 bl, must be:

“In general, the words of description are taken to refer to land owned by the grantor, and a deed will not be construed to include other land unless the language used clearly evidences such an intention.”
“Through” ordinarily means passage across and Within the interior from one boundary to another boundary. Webster’s New International Dictionary, (2nd ed., unabridged); Black’s Law Dictionary (3rd ed.); 62 C. J. 947-48. Certainly it does not mean passage on the outside of something.

This 187 feet of width that cuts a swath through sublot 8 goes all the way “to” Bernwood Road. In its ordinary meaning, “to” conveys the idea of movement toward and actually reaching a specified object. 62 C. J. 1071. Nothing is said about narrowing or stopping this 187 feet of width before it reaches Bernwood. Nothing is said about the dividing line being straight. Nothing is said about the dividing line at all. The dividing line is created and automatically takes its position by laying out the width of the complete part sold.

Where the eastern side of sublot 8 jogs, the width of the sold parcel has to jog too; otherwise the whole 187 feet of width could not stay within and go through sublot 8 to Bernwood Road.

A reasonable construction of the vital instrument more than supports buyer’s version. In fact, it would entitle buyerrto 187 feet width in the small box. However, buyer claims only 150 feet, or one half of the width therein; and his redress must be limited thereto. Nothing in the instrument sustains seller’s version. Buyer is entitled to the specific performance sought.

To these parties, both sincere, and to other sincere people who are tempted to word for themselves a “laymen’s bargain” in a technical field, one can’t help but say that in drawing this kind of contract, a layman needs professional help. To attempt to draw it himself is like trying to take out his own appendix.


author: By THE COURT:

text:
    CHEERHART CLEANERS, INC., Plaintiff-Appellant, v. TINSLEY et, Defendants-Appellees.
    Ohio Appeals, Second District, Montgomery County.
    No. 2112.
    Decided August 17, 1950.
    Joseph W. Sharts, Harold H. Singer & Robert McConnaughey, Dayton, for plaintiff-appellant.
    Robert C. Knee, Fred M. Keer, Dayton, for defendants-appellees.
   OPINION

By THE COURT:

This proceeding involves two appeals on questions of law from the judgment of the Common Pleas Court of Montgomery County, Ohio,'in ám action involving a labor dispute in Case No. 101535.

On December 8, 1949, the plaintiff-appellant filed its petition against the Laundry Workers International Union, et al., alleging a labor dispute and charging the defendants with certain unlawful acts in regard thereto. The plaintiff prayed for a temporary and permanent injunction.

On December 10, 1949, the parties appeared in open court by their respective counsel and, thereupon, a consent decree granting a permanent injunction was entered. The decree enjoined acts which would consist of illegal picketing and provided that not more than two persons at any one time should picket the places of business of the plaintiff. The plaintiff continued to operate its business and the picketing continued for a period of several months.

On April 10, 1950 Jack Lynn, Alice Clark and Louise Dixon, for themselves and on behalf of all other employees of the plaintiff, moved to be made parties to the action and for leave of court to file their intervening cross-petition, which was proffered, on the ground that they had a material interest in the action. On May 5, 1950, this motion was overruled and from this order an appeal was taken.

On April 29, 1950, the plaintiff filed a contempt charge against the Laundry Workers International Union, Local Union No. 248, and seven individuals alleging violation of the former injunctive order. On the same date the plaintiff filed a motion to modify the former order. On these two matters the court heard testimony given by thirty-two witnesses. The court modified the former order by reducing the number of pickets from two to one. The court found that the evidence was insufficient, to show that those charged with contempt were -responsible for the three episodes of violence; starting a fire at one place of business, puncturing oil tanks, and smashing windows in several places of business of the plaintiff. The court found that while there had been minor violations of the order, it was unable to determine under the evidence whether any of the persons charged were guilty of such violations. The court found all the defendants not guilty. From this judgment an appeal was taken.

The issue presented to the trial court was largely a factual one. We agree with the judgment of the trial court that the evidence was insufficient to connect the defendants with the three major acts of violence. There was a definite conflict in the testimony. After carefully considering all of the evidence, we cannot say that the judgment of the trial court was against the manifest weight of the evidence.

The plaintiff contends that there was no bona fide labor dispute and that the picketing was illegal. The pleadings and the evidence do not siipport this contention. In its petition the plaintiff alleged that a strike was in progress and named as parties defendant twenty-three persons whom it alleged were employees of the plaintiff and were members of the defendant union. The consent decree recites that the plaintiff alleged the existence of a labor dispute.

The court very properly overruled, the motion of Jack Lynn, et al., to be made parties to this action. The motion was filed on April 10, 1950. They were not necessary parties to the action; neither is their interest adverse to the plaintiff. Sec. 11255 GC. Moreover, the action was completely adjudicated. While proceedings in contempt and for modification of the injunctive order could be filed, the remedy sought by plaintiff was granted. Furthermore, the action in Case No. 102043 (Court of Appeals No. 2115) was legally commenced in the same court on March 31, 1950. Reference is made to the case of Lynn, et al. v. Laundry Workers International Union, Court of Appeals Case No. 2115, decided by this Court on this same date.

In our opinion the errors, assigned are not supported. Finding no error in the record prejudicial to the rights of the appellant, the judgment is affirmed.

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


author: By DRUCKER, J.

text:
    SKUFCA, Plaintiff, v. EAST OHIO GAS COMPANY, Defendant.
    Municipal Court, Cleveland.
    No. 975302.
    Decided July 17, 1951.
    Shuler, Smith & Freer, Leopold Kushlan of Counsel, Cleveland, for plaintiff.

      Jones, Day, Cockley & Reavis, Patrick J. Mulligan of Counsel, Cleveland for defendant.
   OPINION

By DRUCKER, J.

The general principles covering the liability of gas companies for damages caused by escaping gas are well stated in Volume 19, O. Jur., Page 1108, paragraph 79.

“Degree of Care. — Inasmuch as it is known that gas is dangerous and that explosions may result from its escape, a gas company must use that degree of care to prevent the escape of gas from its pipes commensurate to the danger which it is its duty to avoid, and it will be liable for any injury resulting from a failure to exercise this duty. While the gas remains on the premises of the manufacturer, or while it is being conducted through its pipes, the company is bound to exercise vigilance to prevent injury to third persons. A gas company in laying its pipes through and under the streets is under a duty to use reasonable care in the selection of the material used for the purpose of transporting its gas to its consumers, and to use reasonable care to keep the same in repair and free from leakage after being laid. If a gas company carelessly or negligently fails to ascertain the location of a leak and stop it, after haying knowledge thereof, it is liable for injury resulting therefrom. But generally, a gas company which does not install the pipes on a customer’s premises, and which has no control over them, is not liable for the condition in which they are maintained, and, therefore, will not be liable for injuries resulting from a leak therein, unless he has notice of such defect. The fact that the gas company has the exclusive right to turn on gas at the meter will not make it responsible for the condition of the pipes. If a proper inspection is made by the gas company at the time of turning on the gas, it is not thereafter required to inspect to see that the piping is kept in safe and proper condition. In the absence of any showing of duty in such respect from contract, customer charter, there is no negligence. The exercise of due care does not require frequent inspections by the gas company of the premises where natural gas is consumed, and which are not under the exclusive control of said company. On the contrary, a duty is imposed upon the property owner, in such cases, to exercise constant vigilance in the use of gas and to see that his own appliances are in proper condition. But if, in such cases, the gas company assumed the duty of inspection, it could be held liable, unless contributory negligence was shown.”

The same principle is well stated in Cooper v. Tri-State Gas Company, 3 Oh Ap 77 (1914).

“1. A gas company engaged in furnishing natural gas to the inhabitants of a municipality for consumption, by means of lines of pipe laid in the streets and to the curbs thereof, where such pipes are connected with pipes conveying such gas over the premises and into the dwelling houses of consumers thereof, such pipes from the curb into the dwelling houses having been installed and being now maintained and controlled by such property owners and consumers, the same having been properly inspected before gas was turned in, is not thereafter required to inspect the same, nor is there a continuing liability on the part of such company to see that such piping is kept in safe and proper condition for the transportation of such gas.”

In commenting upon the duty of a property owner in respect of gas pipes which are located on his premises, the Court said, at page 86:

“* * * It would seem a very onerous duty to impose upon gas companies, with their lines through the streets of a city, that from time to time, without notice, they should be called upon to inspect the service lines in the dwelling houses and on the premises of the parties who take gas from them, but we do think the duty is imposed upon the property owner in reference to the use of this substance, owing to its somewhat dangerous quality, to.exercise constant vigilance in the use of it and to see that their own appliances are in proper condition for the safe use of it. That is the holding, in substance, in the case of Bartlett v. The Boston Gas Light Co., 117 Mass. 533-539.”

In the case of Steve Lapotsky v. Thomas G. Chapman of the City of Marion, 10 Ohio Law Review 558, which case incidently was taken to the Circuit Court and a verdict for plaintiff against both defendants was sustained in the April term of 1912, the court carefully reviewed the authorities and stated 'in very clear language that before plaintiff can recover he must prove by a preponderance of the evidence the negligence of defendant and also prove that any damage which he sustained proximately resulted from that negligence.

However the case of St. Mary’s Gas Co. v. Brodbeck, Admn., 114 Oh St 423 (1926) still remains one of the leading cases in Ohio in respect to the duties and liabilities of the com- . pany engaged in the distribution of gas. The court here very ably discusses the duty of a gas company to inspect pipes on the premises of a consumer.

“* * * The Gas Company was not an insurer of the safety of the pipes or the meter under any and all circumstances, but was only obligated to exercise due care to install standard and suitable pipes and appliances, and to renew them when the same might be old enough to become unsafe. Any other rule would require the premises wherever gas is consumed to be inspected every day and every hour of the day. Neither the premises nor the appliances and instrumentalities were under the exclusive control of the gas company, and, without some showing of knowledge of a defective condition, or of facts reasonably calculated to put the gas company upon inquiry, the exercise of due care does not require frequent inspections of premises where natural gas is consumed. Escaping natural gas is a condition which can be as readily detected by the consumer as by the distributing company.”

The defendant in order to be held to' any liability of leaks or dangers or defective condition of the premises must have had actual notice of the dangerous condition of the equipment owned and controlled by the consumer. The defendant should have knowledge of sufficient facts from which notice could be reasonably inferred. It then would have the legal duty to shut off the gas with reasonable promptness or correct the defective condition. This theory is very effectively expressed in the case of Portsmouth Gas Company v. Maddox, 8 Abs, 514 (1930) page 515:

“The law as to the liability of a gas company which supplies its patrons through mains and service pipes seems to be well settled. Where gas escapes from the company’s mains notice of a defective condition is not necessary for the company is held to the degree of ordinary care in maintaining its pipes in a reasonably safe condition. Another rule, however, applies where gas escapes from a defective service line on the property of a consumer. In such case the service line is the property, of the consumer and is not of the gas company. The Gas Company in case of a defective service line is only held responsible when it has had notice of the defect and has had an opportunity to shut off the gas or remedy the defect,”

In the case of Smith v. Pawtucket Gas Company, 24 R. I. 292, 52 Atlantic Reporter, 1078, the court held that the failure • of a gas company on introducing gas into a dwelling to inspect pipes therein by the owner and over which the company has no control is not negligence, in the absence of any showing of a duty in such respect from contract, custom or charter. The court continues,

“In the absence of any facts upon which to base an inference of duty, a Court cannot infer a general obligation to inspect pipes in a private home, which are not under the control of the company and as to which it has no apparent relation other than the fact that its gas is to be used through pipes placed therein by the owner, as it has suited them to have them.”

The law is clear that the owner of property who is renting garage space to tenants can not avoid his legal duty and obligations to maintain said premises in a reasonable safe condition nor can he transfer nor delegate such obligation and duty to others. The court finds as a matter of law that plaintiff was guilty of contributory negligence in failing to use ordinary care in the maintenance of the gas line in question. There was testimony by a witness called by plaintiff that he had called plaintiff’s attention to the odor of gas in and about the garage some time before 'the explosion took place. (Admittedly plaintiff did nothing about it.) The plaintiff was the owner of the pipes from which the gas supposedly leaked and he admitted that although he had owned the premises for about twelve years he had' never inspected the garage or gas lines on his premises. He denied too that he knew there was a gas heater in the garage. The ownership and control of the garage was ,in the plaintiff. He had the positive legal duty to use ordinary care under the circumstances to maintain the garage and its equipment in a reasonable safe condition. This he failed to do.

The court finds for the defendant and judgment may be entered accordingly.


author: By WATTERS, J.

text:
    MILLER, Plaintiff, v. AKRON PUBLIC LIBRARY et, Defendants.
    Common Pleas Court, Summit County.
    No. 178915.
    Decided February 9, 1951.

      Mark F. McChesney and Tress E. Pittenger, Akron, for plaintiff.
    Roy E. Browne, City Law' Director, Gillum H. Doolittle, of Buckingham, Doolittle & Burroughs, Clarence W. May, of Brouse, McDowell, May, Bierce & Wortman, Akron, for defendants.
    Clarence E. Kroeger, of Berry, Underwood, Ryder & Kroeger, Akron, for defendant, The Behling Construction Company.
   OPINION

By WATTERS, J.

The question before the Court is first whether the Akron Public Library, acting through its trustees, and as established under §4840-1 GC etc.," and governed by the provisions of §7627-1 through 7630-1 GC, in letting the contract for the construction of the Firestone Park Branch Library, was required to advertise for bids, and then let the contract to the lowest responsible bidder.

The petition of plaintiff, a taxpayer, alleges that the defendant, the Akron Public Library, acting through its Trustees, defendants herein, did not advertise for bids prior to awarding said contract to the defendant, The Behling Construction Company, and that the latter was not the lowest bidder.

Plaintiff seeks to enjoin all of the defendants from proceeding under said contract for the reasons stated above.

All of the defendants demur to the petition claiming that the law required no advertisement for bids, and only the exercise of good faith in the awarding of the contract to the defendant company.

There is no claim that the board acted fraudulently or in bad faith, but that it acted contrary to law as aforesaid.

Counsel for plaintiff admit in their brief that where there is no statutory requirement, a municipality or other political subdivision is not required to submit contracts for public works to competitive bidding.

They insist, however, that there is such a requirement in ithe Ohio Code.

It is no doubt true, as stated in plaintiff’s brief (citing Miller v. Des Moines, 143 Iowa 409) that — “Experience has shown however that the interests of the public are best conserved by offering contracts for public work to the competition of all persons able and willing to perform it.”

However that is a function for the legislature, and the court must interpret the laws they have provided on the subject and not the advisability of said laws.

Furthermore, I am advised that in this case the board did actually ask contractors to submit prices, and that they received nine offers, and that the defendant company bid second lowest, about $1000.00 above the lowest. -The court however cannot consider these facts. It remains a fact that the board did not advertise for bids.

Under the law relating to municipal corporations’ public contracts, especially §4328 GC, it is provided that all contracts calling for expenditures in excess of Five Hundred Dollars must first be advertised for bids.

Effective September 4, 1947, the Ohio Legislature revamped and recodified the entire subject of public libraries, and among other matters provided that the various boards of library trustees shall be bodies politic and corporate, (§7628 GC) and defined the powers of said library boards in §7630 GC, which sections will be set forth later herein.

Before discussing what the law is now as affected by the legislation effective September 1947; it will be interesting to investigate the authorities previous to that time which bear on the question. .

The following authorities indicate the law prior to 1947 upon situations similar to our problem.

Attorney General’s Opinion No. 3527, in re: Library of the City of Cleveland, 1938 Opinions of the Attorney General, page 2495, 2496 and 2497. The syllabus reads as follows:

“There are no statutes imposing restrictions upon school district public libraries for the purchase of supplies and letting" of construction contracts for school district public libraries.”

Attorney General’s Opinion No. 2094, In re: Akron Municipal University, 1947 Attorney General’s Opinions, which syllabus reads as follows:

“1. Neither the provisions of §4328 GC or of any other sections of the General Code, require the directors of a municipal university to advertise for and receive competitive bids as a condition to the making' of contracts in behalf of such university.”

The Attorney General in this case said as follows:

“It will be noted that there is no provision in this section (section pertaining to powers of trustees of the University of Akron) requiring any advertisement for bids, nor am 1 able to find any such provision in any of the statutes concerning the management of such universities. In view of the provisions to which I have called attention requiring advertisement for bids by certain municipal officers and municipal boards, in the case of contracts involving various amounts, it appears to me that the conclusion is irresistible that the general assembly intended to commit to the directors of municipal universities wide discretion in the making of contracts for the buildings and equipment considered necessary for the use of such universities, and that the general assembly did not deem it necessary to require of them similar action with respect to advertisement for bids preliminary to making contracts.”

Walsh v. City of Columbus, 36 Oh St, page 169.

Facts — The Council appointed a committee composed of three members known as a Park Committee under Section 27 of the Municipal Code. They made a contract without advertising for bids.

Syllabus:

“(1) Section 562 of the municipal code which required the corporation to advertise for bids for the work and materials for a public improvement provided for by Chapters 48, 49 and 50, where the cost of improvement exceeded $500, had no application to an improvement of a public park belonging to the corporation.”

The Court says on Page 173 as follows:

“By these provisions the power to direct all improvements of a public park is vested in'the park commissioners as fully as the power to improve public burial grounds of the corporation are vested in the trustees of cemeteries, and it is nowhere made the duty of either class of public officers to advertise for or receive bids for the work or materials that go into the improvement'.”

Ón the other hand a former Attorney General in 1927 (1927 OAG Vol. 1 P 49) said that village libraries organized under §/M)05 GC cannot contract for construction over five Hundred Dollars ($500.00) without submitting such contracts to competitive bidding. This opinion is based on the fact that §4005 GC then in effect said “in making of contracts,, the trustees shall be governed by the provisions of law applicable thereto.” It then went on to say that since the village itself could not build a library without advertising for bids, the library trustees appointed by it couldn’t.

It will be noted that §4005 GC above was repealed in 1947.

Since the legislature in 1947 revamped the laws relating to public libraries, we ñnd the following authorities:

Attorney General’s Opinion No. 4122, in re Cambridge Library, 1948 Attorney General’s Opinions, page 586, which syllabus reads as follows:

“Under the provisions of §7630 GC, the trustees of any of the public libraries mentioned in that section have authority to expend, for library purposes, subject to the limitations of law, all moneys credited to the free public library under their jurisdiction and generally to do all things they may deem necessary and proper for the establishment, maintenance and improvement of the public library undet their jurisdiction.”

The attorney general went on to say in said opinion:

“The language used as to the authorized expenditure of the library funds to ‘generally to do all things they may deem necessary and proper’ certainly manifests an intention on the part of the legislature to give these library boards very wide discretion.”

GENERAL CODE PROVISIONS IN SUBSTANCE.

Sec. 7628 GC:

“Boards shall be bodies politic and corporate. The boards of library trustees appointed pursuant to the provisions of §§2454-1, 3405, 4004, 4840-1 and 7643-2 GC shall be bodies politic and corporate, and, as such, capable of suing and being sued, contracting and being contracted with, acquiring, holding, possessing, and disposing of real and personal property and of exercising such other powers and privileges as are conferred upon them by law.”

Sec. 7630 GC. “Powers of boards. The boards of library trustees appointed pursuant to the provisions of §§2454-1, 3465, > 4004, 4840-1 and 7643-2 GC shall have the following general powers, to-wit:

2. To expend for library purposes, subject to the limitations of law, all monies credited to the free public library under their jurisdiction and generally do all things they may deem necessary and proper for the establishment, maintenance and improvement of the public library under their jurisdiction;

4. To purchase, lease or erect buildings or parts of buildings to be used as main libraries, branch libraries or library service.”

Sec. 7630-1 GC. “Rules of procedure; annual report. All boards of library trustees appointed pursuant to the provisions of §§2454-1, 3405, 4004, 4840-1 and 7643-2 GC, shall, in the exercise of the powers conferred upon them, be governed by the provisions of this section. * * *.”

There is nothing in Section 97 of the Akron City Charter entitled “Board of Trustees of Public Library” which throws any light on the subject before us.

There are no decided cases of record in Ohio in the various courts to aid us except those noted herein. No cases apparently have been decided since 1947 when the legislature codified and revamped all the public library law, and under §§7627, 7628, 7630, 7630-1 etc., GC, fully covered the powers, etc. of the various library boards and' made them bodies politic and corporate.

Under §7628 GC the legislature, as stated before, made all the various library boards bodies politic and corporate, and as such capable of suing and being sued, contracting and being contracted with, acquiring, holding, possessing and disposing of real and personal property, and of exercising such other powers and privileges as' are conferred upon them by law.

In the court’s opinion this made them separate and distinct entities or bodies politic and corporate, separate and apart from the municipality, the county, the school board, etc., and not agents of said bodies politic.

Under §7630 GC, entitled “powers of boards” we find subsections (2) and (4) among others, which subsections are set forth above.

2 The power is given to purchase, lease or erect buildings or parts of buildings to be used as main libraries, branch libraries or library service; to expend for library purposes subject to the limitations of law, all monies credited to the free public library under their jurisdiction, and generally do all things necessary and proper for the establishment, maintenance and improvement of the library under their jurisdiction.

In the court’s opinion, the clause “subject to the limitations of law,” found in §7630-2 GC does not refer to any requirement that the board advertise for bids preliminary to letting a contract, because there is no such requirement.

Rather it refers to other sections of the public library law passed in 1947, as for instance §7630-1 GC, covering the detailed procedure of the board, and to §7627-2 and §7627-3 GC, and I believe there is some requirement that the clerk must certify that money is on hand for the purpose.

Further light is thrown on the question by the repeal by the legislature in 1947 of §4005 GC, concerning the powers and duties of trustees of University Libraries. This section as it stood before repeal provided that “In the making of contracts, the trustees shall be governed by the provisions of law applicable thereto.” Many interpretations could be placed on this clause. If it meant that the trustees must advertise for bids, it is interesting to. note that the legislature repealed this section, and did not specifically reenact said section, but gave all library boards the right to contract, and gave them specific powers under various sections without any requirement, as far as this court can find, as to advertising for bids, and without including said clause formerly in §4005 GC in the legislation enacted.

The Court of Appeals for Cuyahoga County in discussing the act of the legislature of 1947 relating to the law of public libraries, and which is under discussion in this case, said on March 1, 1948, in 83 Oh Ap, 415, The State ex rel v. Main, Clerk, etc.—

Syllabus No. 1.

“The primary purpose of the judiciary in the interpretation or construction of statutes is to give effect to the intention of the legislature, as gathered from the provisions enacted, by the application of well, settled rules of interpretation, the ultimate function being to ascertain the legislative will.”

My conclusion is that the Ohio Legislature intended to commit to the boards of library trustees wide discretion in the making of contracts for buildings and equipment, etc. where deemed necessary, and that it did not provide any requirement of said boards of trustees, that they advertise for bids preliminary to making contracts.

If this court has misinterpreted the legislative intention, then the legislature should definitely amend the statutes and say what the specific requirements should be as to such boards, prior to the letting of contracts.

In the court’s opinion the legislature did a full and complete revamping of the public library law in 1947, and that this court has no right to read into the law that which is not there.

The various demurrers will be sustained with exceptions. Counsel will draw the proper entry.


author: Per CURIAM: HURD, J.

text:
    KELLY, Plaintiffs-Appellants, v. PORTSMOUTH GAS COMPANY, Defendant-Appellee.
    Ohio Appeals, Fourth District, Scioto County.
    No. 583.
    Decided July 9, 1951.
    Kimble, Kimble & Schapiro, Portsmouth, for plaintiffs-appellants.
    Bannon, Howland & McCurdy, Portsmouth, for defendantappellee.
    (SKEEL, PJ, HURD, J, of the 8th District; DOYLE, J, of the 9th District sitting by designation in the 4th District.)
   OPINION

Per CURIAM:

This action, commenced by Isaac W. Kelly and Ruby Kelly and directed against The Portsmouth Gas Company, was for' damages to a dwelling house occasioned by the explosion of gas. The tort charged in the petition was a violation of the defendant’s duty to'the plaintiff in its failure to use ordinary care in keeping its gas meter, attachments and connections in repair and in a safe condition, the result of which caused large quantities of natural gas “to escape from said meter and the attachments and connections thereto.” It wás alleged that as a proximate result of the claimed negligence the explosion occurred with accompanying damage.

At the conclusion of the trial, the jury returned a verdict for the claimants. Subsequently, the trial judge entered a judgment non obstante veredicto for the defendant. The present appeal is from such judgment.

This has been ah unusual case and the record has been read .and re-read because of the opposite conclusions reached by the members of the court.

It appears that after the explosion, the gas meter was found broken off from the pipes to which it had been connected and from these pipes gas was escaping. The trial was conducted by the plaintiff on the theory that before the explosion the connections at the meter were “cracked and broken and permitted the meter to fall from its position * * * thereby allowing gas to escape into the basement.”

The plaintiffs stated their theory of liability as follows:

“The meter is in evidence indicating that the break by the meter and its connections was caused by the cracking and breaking of the soldered connection. The means of connection and suspension of the meter was as follows: A large iron pipe comes into the premises and along the wall of the basement to the point where the meter was located. An elbow turns downward. After several different connections, thipipe ends up with a nut with threads upon the inside pointed straight down. The meter is then raised up so that a spud sticking out of the top and edge of the meter with threads upon the outside sets up into the nut and the nut is tightened with a wrench, sufficiently tight to seal the connection with the use of a gasket or washer.
“The evidence shows that the particular meter in this case was in fact attached and sealed with a wrench, as before mentioned, by an employee of the Portsmouth Gas Company. The other end of the spud extends down inside a tube or pipe that passes down the side of the meter. There are no threads on the inside of this tube or pipe, or no threads upon the outside of the lower portion of the spud. This connection is obtained by placing the plain surface of the lower part of the spud inside tho plain surface of the pipe or tube in the meter and soldering them together.
“The record discloses, and reason would indicate, that in applying a wrench and sufficient pressure to the nut in order to attach the meter, an equal rotary or twisting pressure would be applied to the spud, to cause it to turn inside of the tube or pipe in the meter. There is nothing that opposes any force except a little bit of solder between the spud and the end of the pipe.
“It was this solder which was cracked and broken and permitted the meter to fall from its position on to the floor. The meter was not supported by any strap, hanger or other equipment. The whole weight of the meter rested upon the little bit of solder we have here described.” •

As Judges Skeel and Doyle view the record, the difficulty with the plaintiffs’ position is that they seek to establish the fact of negligence from inferences only. It is possible that the solder may have been cracked and the connections so weakened that after several years of usage the material separated and released gas into the room. This fact, however, was not established by proof. Its existence would be mere guess and speculation. The fact that after a terrific explosion the meter was disconnected and gas leaked from a connecting pipe is not sufficient to draw a reasonable inference that the connections or meter leaked gas before the explosion and caused it; nor is the fact that soldered connections were broken off after the explosion sufficient to draw the inference that they were broken before the explosion and caused gas to leak into the basement. It is just as reasonable to draw an inference that the explosion was the sole cause of the breaking of the meter and its connections as it is to draw the inference that the connections were broken before the explosion and permitted gas to escape.

Essential elements in the plaintiffs’ case were proof of negligence of the gas company in failing to use ordinary care in keeping its meter attachments and connections in repair' and as a proximate result thereof explosion and damage ensued. There is no direct evidence upon these points nor are there any reasonable inferences to bfe drawn from a fact supported by evidence which tends to prove such elements.

There is testimony showing the use of gas in a hot water heater in the basement of the damaged house. There is no evidence indicating that the defendant company was legally responsible for this appliance or its use. Assuming for the purpose of this discussion that the explosion was caused by natural gas, it is as reasonable to infer that the disastrous' gas came from this outlet as it is to infer that the gas came from the meter and its connections.

“In a negligence action it is not sufficient for plaintiff to prove that the negligence of defendant might have caused an injury * * *, but, if the injury complained of might well have resulted from any one of several causes, it is incumbent upon plaintiff to produce evidence which will exclude the effectiveness of those causes for which the defendant is not legally responsible.”

Gedra v. Dallmer, 153 Oh St 258.

The majority of this court are of the opinion that the case now under consideration is ruled by the pronouncements in St. Mary’s Gas Co. v. Brodbeck, Admr., 114 Oh St 423, and Sobolovitz v. Oil Co., 107 Oh St 204.

We find no error prejudicial to the rights of the appellants and the jujdgment will be affirmed.

Judgment affirmed. Exceptions noted.

DOYLE, J, SKEEL, J, concur.

HURD, J, dissents.

HURD, J.

(Dissenting)

This was the second trial of this case. In the first trial, a verdict was rendered for the plaintiffs in the sum of $6,500.00. This sum being in excess of the amount prayed for in plaintiffs’ petition, the court granted a remittitur, reducing the verdict to the amount prayed for and then overruled the defendant’s motion for new trial. On appeal to the Court of Appeals, the judgment was reversed solely upon the finding that there had been error in the charge of the Court. The second trial again resulted in a verdict for the plaintiff in the amount of plaintiffs’ claim. Thereafter, and before judgment, the defendant filed a motion for judgment non obstante veredicto. The trial court sustained this motion non obstante veredicto and it is .this part of the case that is before us for review.

It is interesting to note that when this case was first reviewed by the Court of Appeals, Judge Gillen, speaking for a unanimous court, while reversing for error in the charge, made the following statement:

“This Court is of the opinion that sufficient direct testimony was adduced to warrant a submission of the issues to a jury and that the rule prohibiting an inference upon inference was not violated. The trial court properly overruled the motion for a directed verdict as well ,as the motion for judgment notwithstanding the verdict.”

I agree fully with this conclusion. It is my opinion, therefore, that the judgment should be reversed and the cause remanded with instructions to enter judgment upon the verdict. This would leave before the trial court the sole ques- ' tion of ruling upon the motion for a new trial.


text:
    STATE, Plaintiff-Appellee, v. WILLIAMS et, Defendants-Appellants.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3414.
    Decided November 24, 1950.
    William A. Ambrose, Pros. Atty., Youngstown, for plaintiffappellee.
    William M. Howard, Youngstown, for defendants-appellants.
   OPINION

By PHILLIPS, PJ.

The parties will be referred to in this opinion as'they stood in the court of common pleas.

Defendants were arrested for, charged with, found guilty by a judge of that court, sitting as a jury by election of defendants, of stealing two watches valued at $470.00 from Livingston Jewelry Store in Youngstown, Mahoning County, Ohio.

Defendants appealed to this court on questions of law from the judgment of conviction and sentence to the Ohio Penitentiary.

By assignment of errors defendants contend “that the trial court erred in not sustaining defendants-appellants’ motion for a dismissal of the charge of grand larceny at the conclusion. of plaintiff-appellee’s case,” and “at the conclusion of all the evidence”; that “the judgment of the court is contrary to, and unsupported by, the evidence,” and “to law”; and finally that “the trial'court erred in overruling defendants-appellants’ motion for new trial.”

About noon on February 10, 1'950, defendants and William Blackman left Cleveland and went to Youngstown, where Allen went, they said, to arrange boxing bouts with Youngstown promoters. Arriving in Youngstown, Allen purchased a local .newspaper, and all three men went to a cafe, where Allen and Williams left Blackman eating a lunch and went to King’s Jewelry Store.

At that store Williams purchased glassware valued at less than a dollar, which he left there under the name of Jackson, and which he arranged to call for later. While Williams was making that purchase a clerk, other than the one who was serving him, testified she saw Allen, who was holding a newspaper in front of him apparently to hide his activities, lean across a watch show case and attempt to open the door thereof but was foiled in his attempt by her apprehension of his activities.

Leaving King’s Jewelry Store Allen and Williams went to Livingston’s Jewelry Store. One of Livingston’s employees testified “I saw Allen stretch the newspaper like this and go closer to the case, and I saw his hand go towards the case, and I finished with the fellow here, and I went over to the case, and I saw two watches missing” as Williams and Allen left the store. The watches were never found after complete search of the store and inquiry from employees of the store concerning their whereabouts.

The quoted evidence introduced in the trial court is sufficient to state in order to understand the questions presented for our consideration and determination, and dispose of defendants’ assignments of error.

Defendants’ counsel argue that the watches were lost, mislaid, or stolen by others. Upon that possibility defendants’ counsel argue they were not proven guilty of the charge of grand larceny by the required degree of proof.

We have read the bill of exceptions submitted to us for review carefully, and concludé that defendants were proven guilty of grand larceny, with which they were charged by the required degree of proof; and that the trial judge did not err to their prejudice in any of the respects claimed.

The judgment of the court of common pleas is affirmed.

NICHOLS, J, GRIFFITH, J, concur in judgment.


author: By THOMAS, J:

text:
    MAGIC et, Plaintiffs, v. BASQUIN, Defendant.
    Common Pleas Court, Geauga County. .
    No. 10998.
    Prank V. Opaskar, Cleveland, for plaintiffs.
    Harold K. Bostwick, Chardon, for defendant.
   OPINION

By THOMAS, J:

Plaintiffs seek to enjoin the defendant County Recorder from making a record and certifying the transcript of incorporation of Kiwanis Lake Sub-divisions 1 and 2, as the Village of Kiwanis Lake.

Plaintiffs own lots in said -Sub-divisions, and also, as Trustees, claim to hold legal title to the Sub-divisions’ roads, parks, and lake for the exclusive use of all the lot owners.

Fifty-four electors, residing at Kiwanis Lake, petitioned the County Commissioners to incorporate said Sub-divisions, a platted territory. At a duly advertised hearing the County Commissioners granted the petition after finding that the population of said proposed corporation consists of 405 year around residents and 183 summer people, that all necessary legal steps had been taken, and that it was right and proper that the petition should be granted. The Commissioners thereupon certified the papers and records of the proceedings to the defendant County Recorder.

The two Sub-divisions were created by plats filed and recorded with defendant County Recorder on October 29, 1919, and August 3, 1920, respectively.

On the plat for Sub-division No. 1, officers of Kiwanis Lake Realty Company inscribed that “as owners of the land shown on the plat” they accepted the Sub-division and dedicated the streets shown on the plat “for the exclusive use of the lot owners in said Sub-division.”

On the plat for Sub-division No. 2, officers of Kiwanis Lake Realty Company inscribed that as owners they dedicated the “drives, lane, lake and parks shown hereon to the use of lot owners only.”

Kiwanis Lake Realty Company, by subsequent deed, granted to certain named trustees and their successors, all of its right and title to “all of the parcels as shown on the recorded plat and marked as Park, Block A and Block B, together with the partially dedicated roads which are marked as Drives or Lanes and the Lake and Parkland surrounding the lake, etc. * * * so that uses of the Lake, Park, Playplaces and drives in Kiwanis Lake Subdivisions 1 and 2 may be properly regulated and restricted.”

Plaintiffs are successor trustees appointed by the Probate Court pursuant to the provisions of such deed.

The essence of plaintiffs’ objections to the incorporation is stated in the following excerpt from their petition:

“Plaintiffs further say that incorporation proceedings * ? * are unjust and inequitable in the following respects:
“e. In that it would and does attempt to create an incorporated village out of a private community and in so doing deprive the property owners of their rights in and to the private roadways, parks, beaches and other facilities, the title whereof vests in the Trustees, plaintiffs herein, for the benefit of all property owners; that the plat filed with this incorporation proceeding is co-extensive with the Kiwanis Lake development and by virtue thereof would seek to impose upon a private community a government which would have no jurisdiction over the roads, parks, beaches and other facilities of the community, but would increase the burden upon .the property owners by increasing the cost of operation borne by them while remaining wholly impotent in the ordinary every-day matter of government unless it deliberately violated the property rights or took away the property rights belonging to the plaintiffs and others similarly situated all of which make such incorporation unjust and inequitable.”

A point of beginning is to determine the public or private character of the roads, parks, and lake in the proposed area of incorporation.

It is possible to dedicate streets and roads by a recorded plat. Sec. 3589 et seq, GC.

But, to consummate a dedication the plat must contain a plain and unambiguous intent to dedicate the streets and roads for public use.

The aforementioned plat inscriptions do use the word dedicate; and the word dedicate usually means a grant of an interest in land for public use. Fieder v. Terstiegé, 56 NYS 2d. 837.

But it is impossible to construe these plat inscriptions as expressing an intent to set aside the roads, parks, and lake for general public use. On the contrary there is evidenced a clear intent to limit the use of these areas to lot owners. The situation resembles People v. Ricketts, 248 Ill. 428, 94 N. E. 71, which held that irrespective of the use of the word “dedicate” the intent was to limit the use of certain play and park areas to abutting land owners.

This intent to exclude the general public from the roads, parks, and lake is reaffirmed by the deed of grant from Kiwanis Lake Realty Company to the original Trustees.

So far therefore as the plats and deed are concerned, no dedication for public use of the road, parks, and lake was thereby effected.

However, in addition to statutory dedication' by plat, and dedication by deed, dedication may also take place through acts and conduct (common law dedication). Hicksville v. Lantz, 153 Oh St, 421.

But. whether or not a common law dedication has occurred during the thirty years the Kiwánis Lake Sub-divisions have been in existence need not now be considered and will not be decided, in the absence of any present issue or presented evidence concerning such question.

On the record in this case it is concluded that the roads, parks, and lake have not been dedicated for public use.

Now if there are no public roads, no public parks, no public lands in the territory, is incorporation of the territory thereby thwarted? This is the pivotal question.

To answer this question it is essential to examine §3517 GC, under which this incorporation is sought. Its pertinent part provides that:

“The inhabitants of any territory laid off into village lots a plat of which territory has been acknowledged and recorded as is provided with respect to deeds, or the inhabitants of any territory which has been laid off into such lots and surveyed and platted by any engineer or surveyor who certified thereon, under oath, to its correctness, and which is recorded as is provided with respect to deeds * * * may obtain the organization of a village in the manner provided in this title.” (Emphasis ours.)

It is apparent that this section contains no provision requiring public streets as a condition of incorporation. In fact only two conditions need be satisfied to obtain organization of a village.' The first is, that the territory be laid off into village lots. The second is, that the territory either be platted and recorded or surveyed and platted by an engineer and surveyor whose certification is recorded.

Now what is the meaning of the requirement that the territory be “laid off into village lots”?

The term “village” has no definitely prescribed meaning. Webster’s New International Dictionary, Second Edition, Unabridged, defines “village” as' “any small aggregation of houses in the country, being in general less in number than in a town or city and more than in a hamlet.” 2. Bouv. Law Diet. Rawle’s Third Revision, p 3401, defines the word as, “any small assemblage of houses for dwellings or business, or both, in the country, whether they are situated upon regularly laid out streets and alleys, or not.”

The recorded plat of Kiwanis Lake Sub-divisions 1 and 2 reveals that the Sub-divisions comprise a compact territory laid off into some 1146 lots, fronting on drives, and contiguously located except where separated by the areas set apart for the lake, the parks, and the' roads. The lots vary in frontage from 30 to 75.feet and in depth from 70 to 210 feet. From the fact that 405 persons reside there the year around, and 183 reside there during the summer, it.may reasonably be inferred that dwellings have been constructed and are occupied.

Obviously all the requisites of a village are present.

The Kiwanis Lake Sub-divisions 1 .and 2 accordingly constitute a territory which has been “laid off into village lots,” thus satisfying the first condition of §3517 GC.

The territory of the proposed incorporation is co-extensive with Sub-divisions 1 and 2, for each of which a plat has been made and recorded. Thus the second condition of §3517 GC has also been met.

The territory of Kiwanis Lake Sub-divisions 1 and 2 thus complies with all requirements of §3517 GC under which incorporation is here sought.

Under this statute a territory may therefore be incorporated even though its roads and streets have not been dedicated to public use.

This conclusion is in harmony with the only relevant authority which has been discovered. That is the case of State v. Church 158 S. W., 2d, 215, decided February 3rd and 17th, 1942 by the St. Louis County, Missouri, Court of Appeals. It ' was an appeal in a quo warranto action which challenged the right of the trustees of the village of Crystal Lake Park to hold their offices.

The territory involved was a 60 acre tract in St. Louis County, Missouri. Part of this land had been platted in 1922 into lots. The streets in the tract were ALL PRIVATE, constructed by the platters. Eleven acres of the tract contained an artificial lake, and nineteen acres contained a golf club house, swimming pool, restaurant, locker houses and two holes of a golf course, the other sixteen holes being on a tract to the west of the 60 acres.

Ey the time of the trial below seventy five dwellings had been constructed and were being occupied as residences.

In Missouri the county court is the agency which hears and determines petitions for incorporation'. The county court granted incorporation. Subsequently by quo warranto proceedings the platters who still owned 32% acres of the 60 acre tract including eight or nine acres of the lake, a dozen platted lots, and the rest in vacant land, challenged the legality of the incorporation.

Petitioners claimed that the county court had exceeded its jurisdiction in that

1. “No village or town of Crystal Lake Park ever existed as contemplated by §7091 R. S. Mo. 1929, but said 60 acre tract of land was a privately owned subdivision without commons, public streets, or taxable inhabitants within the meaning of said section of the statute * * *;
2. “That said order deprives relators of their right to operate, manage, and control their property, in violation of Section 20 Art. 2 of the Missouri Constitution, and the due process clauses of the State and Federal Constitutions.”

In their' appeal from the adverse ruling of the circuit court which had refused to grant relief, petitioners contended

“that the county court of St. Louis County was without jurisdiction to entertain and rule on the petition for incorporation of the village of Crystal Lake Park, because no such village ever existed within the meaning of Section 7091, R. S. Mo. 1929, as the streets in the platted subdivision were not dedicated to public use.”

Thus the issue of the necessity of publicly dedicated streets as a condition of incorporation was squarely raised.

The St. Louis Court of Appeals rejected petitioners argument in-these words:

“But, appellants are in error in their contention that because the streets in the platted area were not dedicated to the public use, the community known as Crystal Lake Park was a village within the meaning of the statute. The statute does not define the word village, so that it should be given its ordinary and usual meaning (thereupon the court gave the definitions from Webster’s and Bouvier’s quoted earlier in this memorandum, and. also cited Illinois Central R. R. Co., v. Williams, 27 Ill., 48 and other authorities).”

Accordingly the court concluded that the community known as Crystal Lake Park was a village within the meaning of the Missouri incorporation statute.

It is important to note that the Missouri incorporation statute requires the existence- of a village to justify incorporation; whereas Ohio only requires that the territory be “laid off into village lots.”

If a village existed under the facts of the Church case, supra, the territory in the Kiwanis Lake Sub-divisions is “laid off into village lots.”

The Ohio incorporation statute, though not necessitating the existence of publicly dedicated streets as a condition of incorporation does not by the act of incorporation convert private streets into publicly dedicated streets. Ways, private when they are brought within the limits of a municipal corporation, remain so until dedicated. Bonebrake v. Columbus, O. N. P. (NS), 41, affirmed without opinion, 81 Oh St, 545.

But because the roads are not automatically dedicated by the act of incorporating this territory into the Village of Kiwanis Lake, this circumstance nevertheless does not prevent incorporation.

True enough,the new village, through its elected council, cannot improve the roads and assess the lot owners for the improvements as long as the roads are privately owned or not publicly dedicated. But that condition need not be a static one.

The significant point is that upon incorporation power immediately vests in the village to convert the private ways to public ways. The improvements may then follow.

The village through its elected council is fully empowered to appropriate whatever land it needs for streets by employing available powers of appropriation. Secs. 3715, 3677 et seq, GC.

If the power to provide public ways exists, as it clearly does, the fact that upon incorporation there are no public ways is irrelevant as a ground for- challenging the act of incorporation. Moreover, whatever rights in. the roads are now possessed by the plaintiffs as lot owners and trustees would be adequately respected and compensated for in appropriation proceedings should they become necessary. In such proceedings the actual value of these respective interests, plus any damage to the lots, would be .established and paid for.

It should be said however that it is difficult to conceive how either the holder of 'the legal title or beneficial title to the roads would be able to prove any actual or special damages flowing from the conversion of the use of the roads from one enjoyed by all the lot owners to one enjoyed by the public. Such a conversion of use would hardly interrupt or impair the individual use of the roads by lot owner. If. the lot owners suffer no demonstrable damage then the trustees would suffer none.

Moreover it seems self-evident that any monetary assess-, ment of damages which might be made would produc'e an illusionary gain for the lot owner, for any award allowed for appropriation of the lot owners’ beneficial use in the roads, for damage to their lots, and for the costs of the appropriation would necessarily, be assessed against all the lots on a frontage basis. Hence each lot owner would wind up paying the damages allowed for his lot plus his proportionate share of the costs of appropriation.

Petitioners contend that incorporation is futile because there are no public streets which may be subject to municipal powers. It has been seen that such a. condition is only a present one "which' may be altered whenever the village asserts its power of appropriation over the streets or the streets become dedicated. Petitioners argument therefore must fail.

However, it may not be necessary to resort to appropriation in order to convert the roads to public use. Trustees may dedicate trust lahds to public use if that dedication is not inconsistent with the trust. And it has been said with reference to a trust for a school plot indentured to last as long “as grass grows and water runs” that it canno.t be asserted as a principle of law, that the devotion of part of a school plot to the purpose of a highway, is inconsistent with the trusts impressed on it. Prudden v. Lindsley, 29 N. J., Eq. 617, at 617. Albers, et al v. Acme Paving & Crusher Co., et al., 194 S. W. 61, at 71, holds likewise with reference to church lands dedicated to a public highway.

And in any event the trustees, with the consent of the lot owners, could dedicate the roads to public use. Bogert Trusts and Trustees, Section 941, Vol. 4, Part 2, Pages 134, 135.

Lot owners realistically faced with the possible alternative of costlier appropriation will undoubtedly all assent to dedication.

As to the parks and the lake they may be dealt with separately from the roads and in several ways. All or any part of the parks and lake may be continued as is, with the use reserved for the lot owners. Or all or any part of the parks and lake may bfe appropriated by the village as public property. Or the trustees may dedicate all or any part of the parks and lake to public use with the consent of the lot owners.

Everything considered, incorporation of the Village of Kiwanis Lake will neither trespass upon or impair any- right which plaintiffs have either as trustee or lot owners.

Incorporation of the village complies with and conforms to all statutory requirements.

It is not established that the incorporation of this Village will either wrongly, unjustly or inequitably affect any right or interest of the plaintiffs.

Injunctive relief will be denied.

Defendant may draw an appropriate, entry.


author: Per CURIAM:

text:
    MATTHEWS, Estate of, In re: DEPARTMENT OF TAXATION, Appellant, v. MATTHEWS et, Appellee.
    Ohio Appeals, First District, Hamilton County.
    No. 7386.
    Decided March 7, 1951.
    C. Wm. O’Neill, J. M. Burtsch, Jr., Columbus, for appellant. Dunham Matthews, Cincinnati, for appellee.
    (SKEEL, FJ, HURD, J, of the 8th District, and STEVENS, J, of the 9th District sitting in the 1st District by designation.)
   OPINION

Per CURIAM:

Item II of the will of the deceased directed that a debt owing to Stanley Matthews in the sum of $27,000.00 arising out of a trust created by the deceased’s husband prior to his death, which trust was for the benefit of both the deceased and her brother-in-law, Stanley Matthews, Appellee herein, should be paid to Stanley Matthews upon her death.

There is no dispute but that the deceased during her lifetime entered into an agreement, whereby she was to have the full benefit of the trust during her lifetime and that Stanley Matthews was to be the owner of the amount of $27,000.00 which was to be payable to him upon her death.

Item II of the will, therefore is not a testamentary disposition of the said $27,000.00 but an acknowledgment by the testatrix that said sum belonged to Stanley Matthews, and an exclusion of said money from the assets of her estate.

The appellee listed his claim in the Inventory, claiming said amount as a debt against the estate, and within the time provided by law brought an action under the provisions of §10509-106 GC, for a judicial determination by the Court that said amount was due him as a debt of the Estate. This claim was allowed by the Probate Court. The record of this proceeding is not before us, and, therefore, we must assume that it was supported by proper and. sufficient evidence. The fact that such judgment was after the deduction of such amount from the assets of the estate in determining the inheritance tax is of no consequence. Said amount was in fact no part of the succession passing from the deceased to her legatees upon which inheritance tax is to be determined, under the provisions of the General Code, providing for the succession tax.

The claim that the State had no notice of this proceeding in which appellee presented his claim for the said $27,000.00 referred to in Item II of the will, was in fact his property and a legitimate claim against the estate, is without merit. The statutes required no such notice, and the fact that such claim was listed in the Inventory by the appellee is sufficient notice to the State.

The judgment is therefore affirmed.

SKEEL, PJ, HURD & STEVENS, JJ, concur.