text:
    BANKERS LIFE CO v WATERS, et
    Ohio Appeals, 8th Dist, Cuyahoga Co
    10750½.
    Decided Oct. 20, 1930
    David P. Bowden, Cleveland, for Bankers Life Co.
    Howell, Roberts & Duncan, Cleveland, for Waters.
    Bemon, Mulligan, Keeley & LeFever, Cleveland, for Clara H. Corlett, Admrx.
    Judges WILLIAMS and RICHARDS (6th Dist) and CROW (3rd Dist) sitting.
   RICHARDS, J.

In 1 Pomeroy’s Equity Jurisprudence, Sections 170 and 171, the author classifies exclusively equitable remedies and embraces • interpleader in one of the classes.

It seems clear that the original jurisdiction in interpleader was in chancery, but the proceeding has been regulated in part, by statute. Section 11265 GC, provides for interpleader upon affidavit of the defendant before answer, but this section is not broad enough to cover the entire field of interpleader and has no relation to an action brought by a plaintiff holding a fund to which claim is set up by different claimants. Interpleader is peculiarly an equitable remedy where various persons, whose ■•titles are connected by being derived from ’ a common source, claim the same thing from a third person, and authorizes such person to maintain an action requiring them to' interplead and set forth their claim. The equitable character of inter-pleader is clearly stated in 4 Pomeroy’s Equity Jurisprudence, Sections 1320 and 1329. See also 33 C. J., 466.

We. are not concerned in determining whether the method provided in the statute above cited is or is not of an equitable character, for the case under consideration is not brought under that statute but by a plaintiff and under equitable principles existing long before the enactment of the statute and still existing, for the statute is not broad enough to cover all classes of interpleader. As was said by Speer, J. in the course of the opinion in 1st National Bank v. Beebe, 62 Oh St, 41, 44:

“that the equitable character of interpleader still survives, we think has been the common understanding of the bench and bar since the enactment of the code.”

This court is of the opinion that the action is in chancery and hence, under the Constitution as amended in 1912, appealable and that the motion to dismiss the appeal should be overruled.

Our attention is called to Union Trust Co. vs. Lessovitz, et al., decided by the Supreme Court May 21, 1930. (Syl 8 Abs 336; 171 NE 849; 122 Oh St 406), holding that when a motion to' dismiss an appeal is sustained the appellant has a right to prosecute error to the Supreme Court from the judgment of dismissal and that the pending error case should, in the meantime, be held in abeyance. But, in the instant case, the motion to dismiss the appeal is overruled and that is not a final order to which error will lie, and therefore this case on appeal will be forthwith assigned for trial. Motion to dismiss appeal overruled.

Williams and Crow, JJ, concur.


source: Caselaw Access Project

author: CROW, J.

license: Public Domain

text:
    PAUL FIGULI v ROSIE FIGULI
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10974.
    Decided Oct 20, 1930
    Harry R. Scobie, Cleveland, for Paul Figuli.
    Young, Meyers & Young, Cleveland, for Rosie Figuli.
    Judges WILLIAMS and RICHARDS (6th Dist) and CROW (3rd Dist) sitting.
   CROW, J.

Plaintiff in error, the husband, asks the reversal of the judgment on the ground that it is void so far as it clothes the wife with sole possession of the property, and the reason urged is that the husband has been deprived of his property in violation of constitutional guaranties, but no provision was specially pointed to, either in the Constitution of the United States or the Constitution of Ohio, having such effect.

Agreeable to the statutes of Ohio, the court had in the present case jurisdiction of the subject matter and of the person, and the jurisdiction of the subject matter included the power to adjudge to the wife such portion of the husband’s property as the circumstances justified, even to the extent of awarding the wife the entire interest of the husband in the real estate; consequently a lesser interest was award-able.

Whether the circumstances established by the evidence warranted the judgment, can not be determined here because of the absence of the bill of exceptions or finding of facts. In this situation there is a conclusive presumption that the trial court had before it such facts by way of evidence or stipulation as will support the judgment; this rule is elementary, and also declared in many reported cases in Ohio.

Therefore the judgment will be affirmed.

Williams and Richards, JJ, concur.


author: PARDEE, J.

text:
    BLACK RIVER LUMBER CO v KENT, et
    Ohio Appeals, 9th Dist, Lorain Co
    No 541.
    Decided Oct. 21, 1930
    G. A. Resek, Lorain, for Lumber Co.
    H. G. King, Lorain, for Kent.
    Sawyer, Cummings & Strong, Cleveland, and Fauver & Fauver, Elyria, for defendant The Cleveland Trust Co.
    Mooney, Hahn, Loeser, Keough & Beam, Cleveland, and A. W. Cinniger, Lorain, for defendant Citizens Home & Savings Assn Co.
    Van Duesen & Calhoun, Lorain, for defendant, Henry Furnace & Foundry Co.
    D. A. Cook, Lorain, for defendant Wilbur A. Edwards.
   PARDEE, J.

We have read a transcript of the evidence taken in the trial court, which has been submitted to us for our consideration, it being the only evidence offered, and we are unanimously of the opinion that said defendant has not sustained the burden of proof cast upon it to show such waiver by agreement..

A waiver by operation of law is claimed by virtue of the following section, to wit:

“All liens or claims for liens which may arise or accrue under the terms of 'this act shall be assignable. No lien provided for in this act shall be defeated or waived by the taking by the lien claimant, from any person of any promissory note or notes or of any security for such debt other than upon the real estate itself, in the absence of a written agreement that the taking of such note or notes or such security ' shall be a waiver of the lien.”

Sec. 8323-6 GC.

Mechanic’s liens are creatures of law, and the right to have them may be given or withheld by the legislature. If the right is given to have them upon certain conditions, those are conditions precedent which must be complied with to have a valid lien. If the right to have a lien is given, the legislature may provide how, when, and under what circumstances the lien may become void, waived or taken away.

By the foregoing section the legislature clearly intended that a mechanic’s lien should remain as security for the debt unless waived by the lien claimant, and by the language used in said section it is expressly stated what acts shall not be a waiver of the lien.

Therefore, the lien is not waived (a) by taking a promissory note or notes to evidence the debt, nor (b) by taking any kind of security for the debt such as collateral, chattel mortgages, or mortgages upon real estate other than that covered by the lien, unless at the time the note or notes or the new security is given it is the intention of the parties that the lien be waived and the agreement to waive is in writing; and unless there is such intention, so expressed, it will be assumed that the new security is in addition to and not a substitute for the old.

So, how may a lien be waived by the terms of said section?

One of the methods provided therein is by taking other security than the land covered by the lien, with the agreement to waive the lien, if such agreement is reduced to writing.

Another method claimed by said defendant and denied by plaintiff is by taking the real estate covered by the lien as security for the debt; and that claim is based upon that part of the foregoing section which reads as follows, to wit:

“No lien provided for in this act shall be *** waived by the taking by the lien claimant ** of any security for such other than upon the real estate itself.”

The words “any security” refer to any kind of security the lien claimant is willing to accept, different from that which he then has, which is the real estate which his lien then covers; so if the lien claimant accepts the lien-covered property as security for his debt, it being the property then covered, it is not “security for such debt other than upon the real estate itself” but is security upon “the real estate itself” and is by the language of said section a waiver of the lien.

A lien therefore may be waived under said section by (a) taking the real estate covered by the lien as security for the debt represented by the lien, or (b) by taking other security, with the agreement to waive the lien, when such agreement is reduced to writing.

So, if the lien claimant takes the land covered by the lien as security for the debt by a method different in form from that which he then has, which of course could be done only by a properly drawn,- executed and delivered deed in the form of a mortgage or otherwise, then, as the law clearly states, he by so doing loses his lien and his rights thereunder; because he has taken upon the same land a new and different security of a' higher order, which shall be considered as a substitute for the other security which it has displaced.

The evidence in this case shows that the plaintiff took as security for his new note the land covered by the original liens and other land of the defendants Kents, said other land being lot 566 and the homestead of said debtors, to secure not only the amounts of the two liens but the balance of the running account which Kents owed to said plaintiff. By so doing the plaintiff took as security the original real estate covered by the original liens, and the fact that the note includes other indebtedness of the defendants Kents to the plaintiff and the mortgage covers other real estate of said Kents, which was not covered by the the lien, does not change the fact that the original real estate is still security for the original debts secured by the original mechanic’s liens.

“A presumption of law is an inference which, in the absence of direct evidence on the subject, the law requires to be drawn from the existence of certain established facts.”

22 C. J., p. 82, sec. 25.

It being clearly established by the evidence in this case that the original debts secured by the two mechanic’s liens are now secured upon the same land which was covered by the mechanic’s liens, it therefore follows, as a presumption of law, that the plaintiff, when it took said mortgage, waived the two mechanic’s liens which it had prior thereto.

A decree may therefore be. drwan in accordance wih this conclusion.

Funk, PJ, and Washburn, J, concur.


author: FUNK, PJ.

text:
    CONRAD BAISCH KROEHLE CO v HOFF
    Ohio Appeals, 9th Dist, Lorain Co
    No 535.
    Decided Oct. 21, 1930
    Stevens & Stevens and Cyril J. Maple, all of Elyria, for Conrad Baisch Kroehle Co.
    Wesley L. Grills, Lorain, for Hoff.
   FUNK, PJ.

It will be observed that the bond upon which this action is founded was given under 10287 GC, which was for the discharge of the automobile from the attachment and was given in double the amount of plaintiff’s claim as stated in his affidavit, and was not given under Sec. 10258 GC, which provides that the bond must be given in double the appraised value of the property, conditioned “that the property or its appraised value in money will be forthcoming to answer the judgment of the court.”

A bond given under said Sec. 10287 GC may be referred to and designated as a “discharge” bond, while a bond given under Sec. 10258 GC may be referred to as a “redelivery” or “forthcoming” bond.

There is no claim made that plaintiff did not properly perfect his appeal nor that the appeal bond does not comply not only with Sec. 10383 GC on appeals generally but also with Sec. 10280 GC, which provides that the bond shall contain a provision to pay the defendant all damages sustained if it be found in the Common Pleas Court that the attachment was wrongfully obtained. Neither is there any claim that the word “magistrate” used in the bond is not synonomous with the word “justice” used in the statute, but it is rather assumed in the briefs and the arguments that they are synonomous.

Counsel for defendant calls attention to the fact that Sec. 10258 GC provides that the bond must be conditioned “that the property or its appraised value in money will be forthcoming to answer the judgment of the court in the action,” ,and that Sec. 11827 GC, which is the corresponding section applicable to the Common Pleas Court for forthcoming bonds, also reads the same way, and that Sec. 11844 GC, which provides for a discharge bond in the Common Pleas Court, requires the bond to be conditioned “that the defendant will perform the judgment of the court,” while Sec. 10287 GC, under consideration in the instant case, provides that the bond be conditioned “to the effect that the defendant will perform the judgment of the justice.”

Counsel thus contends that since Secs. 10256, 11827 and 11844 GC all use the word “court,” while Sec. 10287 uses the word “justice,” said Sec. 10287 GC should be construed strictly and limited to the exact letter of the bond, and that it literally means the judgment of the justice of the peace alone and has no reference or application to the judgment of a higher court in which the case is finally determined; and that this rule is especially applicable in the instant case since the surety is an individual or gratuitous surety, as distinguished from a paid surety. It is therefore, claimed that when the justice rendered judgment for defendant, the bond became of no effect and had no application to the performance of the judgment of the Common Pleas' Court, even though the cáse was properly appealed to that court and judgment there rendered in favor of the plaintiff. This is the sole question at issue in this court.

If we follow the reasoning of counsel for fendant in the instant case to its logical conclusion and apply it to a case where the justice had rendered judgment for plaintiff and defendant had appealed ,and the Common Pleas Court rendered judgment for the defendant, the discharge bond would have to be paid because the justice rendered judgment for plaintiff, even though the Common Pleas Court rendered judgment for- the defendant. We hardly believe that it would be contended by counsel for. defendant that defendant and his bondsmen would be required to p,ay the discharge bond if judgment had been rendered by the justice for plaintiff and on appeal by the Common Pleas Court for the defendant.

It will be further noted that by virtue of said Sec. 10287 GC a defendant has the absolute right to give a bond and have the property discharged from the attachment and returned to defendant without an order of the justice, whether or not the attachment was rightfully issued — the only requirement being that the bond must b.e approved by the justice.

Although the section reads that upon the giving of the bond to the approval of the justice “the attachment in such action must be discharged and restitution made of the property taken under it,” yet construing the section as a whole and in relation to other sections on attachment, it is obvious that such bond is given only for the purpose of securing a release of the attached property and not for the discharge of the attachment itself, as our Supreme Court has held that a discharge bond such as this is takes the place of the property, that the property may be disposed of,by the plaintiff or levied upon by other creditors, ,and that the giving of such bond discharging the property from the attachment does not prevent the defendant from proceeding under Secs. 10258 and 10259 GC to have the attachment itself discharged.

Myers v. Smith, 29 Oh St 120.
Jayne’s Exrx. v. Platt, 47 Oh St 262.
Edwards v. Goldstein, 80 Oh St 303.

Moreover, Sec. 10279 GC provides that if a judgment is rendered in favor of the defendant before the justice, the attachment shall be discharged unless within ten days the plaintiff gives a bond for appeal to the Court of Common Pleas, and in that event the property shall not be discharged and returned to the defendant but the attachment shall be continued and determined by the Court of Common Pleas as though it had been issued from that court. Under this section, if the discharge bond had not been given, the property would have remained in the hands of the officer until the case was disposed of in the Common Pleas Court.

Since Sec. 10279 GC provides that on appeal the attachment shall continue and the.property remain in the possession of the officers, and since Sec. 10287 GC provides that when the bond is given the attachment must be discharged and the property returned to defendant, and since our state courts hold that the bond clearly takes the place of the property, dan it be said that said Sec. 10287- GC should be so strictly and literally construed as to limit it only to the -judgment of the justice and not give it the broader construction to mean the judgment of the court in which the case is finally disposed of, when the case has been properly appealed and a higher court renders a judgment in favor of the plaintiff.

We think not, as it will be noted that property released by the constable under ,a forthcoming bond under Sec. 10259 GC is ■constructively in his possession during the pendency of the action, and that the bond is for the return of the property or the pay.ment in money of the appraised value if it is not returned, while property released under a discharge bond under Sec. 10287 GC is discharged entirely and the bond is substituted for the property and becomes the security of the creditor instead of the property and is given in double the amount f plaintiff’s claim instead of double the amount of the appraised value of the property.

4 O. Jur., “Attachment,” Sec. 125.
6 C. J., “Attachment,” Sec. 679, p. 327.
45 Conn. 354, Perry v. Post.

It would surely be an injustice to an attaching plaintiff to hold that said Sec. 10287 GC should be so literally construed as to refer only to the judgment of the justice. court, when the statute provides for an' appeal and that when an appeal is perfected the property shall be held by the attaching officer until the case is finally determined in a higher court, and further provides that a bond may be given whereby the attachment “must be discharged and restitution made of any property taken under it”; and this is especially so in view of the holdings of our Supreme Court that the bond takes the place of the property and that upon the giving of such bond the property may be disposed of by defendant or taken in execution by other creditors and that the giving of such bond does not prevent the defendant from proceeding to have the attachment iself discharged.

Moreover, such holding would enable the defendant to defeat recovery entirely when the justice gives judgment for defendant, even though the higher court gives judgment for plaintiff, which is the situation in the instant case, as defendant now has no property on which execution can be levied.

Furthermore, the rule seems to be well recognized that when an attaching plaintiff properly perfects his appeal within the statutory time, a judgment for the defendant does not divest the attachment, and that such appeal has the effect of preventing the dissolution of the attachment which would otherwise be caused by a judgment of the justice for the defendant.

117 Pac. 165, King v. Watson.

The rule is also well settled in this state that when either party perfects an appeal, the judgment of the justice of the peace is thereby vacated and there is then in reality no judgment of the justice; and it is equally well settled that when a case is properly appealed from the justice of the peace to the Common Pleas Court, the judgment of the Common Pleas Court may thereby be said to be the judgment of the justice, as it becomes the judgment that the justice should have rendered and the bond being given to perform, the judgment of the justice should certainly include the judgment which the justice should have rendered as determined by the Common Pleas Court or the reviewing court in which the case is finally determined.

As to the sufficiency of the petition generally, see Winton v Myers, 58 Pac. 634.

We are therefore unanimously of the opinion that said Sec. 10287 GC should be construed to have .application to the final determination of the case in the Common Pleas Court, that it was never intended that it should have application only to the judgment of the justice of the peace, that the word “justice” as used in this section should be given the same construction as that .given to the word “court” as used in the other sections, and that consequently the petition does state a cause of action.

The judgment will therefore be reversed and the cause remanded for further proceedings according to law.

Pardee, J, and Washburn, J, concur.


author: FARR, J.

text:
    WEBER CO v ROSSI, et
    Ohio Appeals, 7th Dist, Mahoning Co
    Decided Oct. 3, 1930
    Nadler & N,adler, Youngstown, for Weber Co.
    T. E. Antonelli, Youngstown, for Rossi et.
   FARR, J.

The first assignment for error is that the trial court admitted incompetent testimony upon the trial below, and that is perhaps the principal issue here. At the time of the transactions between the Weber Company and the Rossi Brothers there was an instrument in writing Which was signed by Rossi Brothers, and upon the trial be.low the court admitted testimony to the effect that the merchandise was not as repsented, and it was sought to justify the refusal of the same upon that ground, and it is claimed that the admission of that testimony served to contradict the terms of what is claimed to be a written contract of sale, which reads as follows:

“11-29-26.
Rossi Brothers,
Youngstown, Ohio.
641 Himrod Avenue.
Ship by express Dec. 4, 1926, Terms below. When: Dec. 4, 1926. Salesman: J. A. and L. A. Weber. Buyer: Fred Rossi. F.O.B. factory. 1 set of screens in damask and silver scroll. 1 truck bier to match. Balance, $200.00. Terms; Net $200.00.
January 4, 1927.
Signed by Rossi Brothers,
per Fred Rossi.”

It is assigned for error that upon the trial below the trial court admitted testimony, so'it is claimed, to vary the terms of the above, which is claimed to be a written contract of sale, ,and to sustain that proposition attention is called in behalf of plaintiff in error to the case of Crawford, et ah vs. Earl, in the 38th Wis. 312, where it is held that parol evidence may not be admitted to vary the terms of a written contract of sale, and upon the trial in that cause the trial court refused to admit oral testimony. However, an examination of the case discloses that there was a written contract, dated and setting out the name of the agent and stating the number of,apple trees of different varieties that were purchased, and this is signed at the end by. A. K. Earl. However, the Wisconsin case is readily distinguishable from the instant case, in that it sets out the full contract • between the parties and the number1>:¶‡' trees of each different variety, so that-lit does not sustain the theory of plaintiff in error here.

Attention was also called to the case of Morris vs Southwestern Supply Company, 206 S. W., 894, where it is held in the last paragraph of the syllabus that a written order specifying the terms of sale properly signed by the parties, constitutes a written contract protected by all the rules of evidence against variance by oral testimony, ’but in this case there were two contracts. The first was modified by a second, which was signed between the parties, and it was a contract fully written and signed, so that it is different from the paper writing in the instant case. It only requires a reading of the order, which of course is in writing in ithe instant case, to determine that it is ■simply a memorandum of the sale by Weber & Company to the Rossi Brothers. It /states what was purchased, the terms, the amount, and it is true that it is signed “Rossi Brothers, by Fred Rossi,” but that does not change the character of the writing, so that the signature of Rossi Brothers to this paper offered as plaintiff’s exhibit 4, did not change its character. It was simply a memorandum of the transaction between the parties, and, as before stated, a reading of it readily discloses that it simply státes what was purchased and the amount, and complies with the rule relating to that which is termed in law a memorandum.

Attention is directed to 10 R. C. 1., under the title of “Evidence”, at page 1024, Sec. 216:

“Memorandum not constituting contracts. Parol evidence is admissible to '■'.explain a mere memorandum of a writ-'j ten contract.”

And a long list of cases is given to sustain the principle announced in the text. Attention is called also to a case decided perhaps in Jefferson County, or in one of the counties in this district, by Judge Cook. ,A diligent search failed to discover this case. Perhaps while it is a published dé- ■■ cisión of the Circuit Court of this district, it may be that the paragraph in mind was ’¿n the opinion of the court, and in which ••.¿he court had occasion to discuss the ques- , tion at issue here and held that a memorandum of an order made for merchandise ^s not a written contract, coming within the provisions that written contracts may not be varied by parol testimony. No fur■ther information can be given concerning that case, but the principle is correct.

Next it is urged that the court was in error again in permitting this defense to be made since the defense tendered is in substance a general denial of the allegations of the statement of claim in the Municipal Court. It perhaps is a little broader than a general denial, but granting for the sake of argument that it is simply a general denial, was the testimony admissible under that general denial? A case of interest in this connection is Platt v. Scribner, 18 C. C. Old Series, 452. In the third proposition of the syllabus it is held:

“Where the correctness of averments in the petition is disputed, the adverse party claiming a different state of facts not amounting to confession or avoidance or new matter, but which if established would defeat the action, it is not necessary for such adverse party to set out the facts as he claims them to be, but a denial is sufficient.”

The same principle is announced in Kneipper v. Richards, et al., 7 C. C. N. S., 581, and likewise in Richcreek vs. O’Donnell, 5 C. C. N. S., 229. See also 21 R. C. L., page 566, which clearly states the rule. Referring again to the former question of the admission of parol testimony relating to this memorandum of sale, attention is also called to Sec. 100 of 1 -Williston on Sales, where it is said:

“The parol evidence rule also effects differently a contract in writing from a memorandum in writing. The former is necessarily the only complete statement of the contract and the only evidence in regard to it, but a written memorandum may be shown by parol to be inaccurate or inadequate, and hence not a compliance with the statute.”

Therefore, there was no prejudicial error in the admission of the evidence under a general denial in this case.

It is also claimed that the trial court erred in its instructions to the jury. The trial court entertained the view that this was not a written contract of sale but a memorandum in writing, and so charged upon the trial below, and by reason of what has been said and which it is not now necessary to repeat, it follows that there was no prejudicial error in that behalf.

The last assignment for error is misconduct of counsel for the defendant in error during the trial. This was not urged particularly in argument and we find no error in that behalf.

That covers all of the issues raised, and for the reason given it follows that the judgment must be affirmed, and it is so ordered.

Pollock, and Roberts, JJ, concur.


author: WILLIAMS, J.

text:
    BOARD OF EDUCATION OF WEST PERKINS SPECIAL RURAL SCHOOL DISTRICT v BECKLEY
    Ohio Appeals, 6th Dist, Erie Co.
    No 335.
    Decided Oct. 13, 1930
    Hertlein & Schwer, Sandusky, for Board.
    Krueger, Rosino & Moore, Sandusky, for Beckley.
   WILLIAMS, J.

Hulls Corners’ school was an elementary school and under 7830 GC, she was required to have

“from a certificating authority having legal jurisdiction a certificate * * * that he is qualified to teach orthography, reading, writing, arithmetic, ■ English grammar and composition, geography, history of the United States, ■, physiology, including narcotics, litera-:ture, and elementary agriculture, and,.that he possesses an adequate knowledge of the principles of teaching; except as provided in Sections 7807-9, 7807-10, 7807-6, 7852 and 7831-1.”

The sections last referred to in the above quoted passage have no bearing upon the instant case.

As the the only certificate possessed by the defendant in error was provisional in character and authorized her to teach Eng-, lish and History only, she did not have. a.' certificate which would authorize her to:teach in an elementary school such as thaji' at Hulls Corners’ was.

Under 7786 GC, the clerk of the Board.of .< Education can not lawfully draw an order for the payment of a teacher’s salary until the teacher files with such clerk a written .statement from the Superintendent of Schools showing that there has been filed with him a legal teacher’s certificate (or. a,' true copy thereof) to teach the subjects or grades taught. As the certificate on fiie authorized only' the teaching of English’ and History, in high schools of Ohio, it was not such ,a certificate as was required to teach in an elementary school. Withdut the required certificate, plaintiff below was not entitled to recover the unpaid portion of the salary.

This court finds, however, that a final judgment can not be entered in favor of the plaintiff for the reason that there was' no motion to direct a verdict at the conclusion of all the evidence;, nor was there any request submitted to the court for: an instructed verdict. Woodman vs. Stahl, 28, Oh Ap 464, 467.

Attention is called to the fact that there is a question whether mandamus was not' the proper remedy in the instant case..

For the reasons given the judgment will be reversed and the cause. remanded for, further proceedings according to,.law.’

Lloyd and Richards, JJ., concur.1


author: WASHBURN, J.

text:
    CZELLATH v SCHAUB, et
    Ohio Appeals, 9th Dist, Lorain Co
    No 538.
    Decided Oct. 21, 1930
    Fauver & Fauver and Stevens & Stevens, all of Elyria, for Czellath.
    G. A. Resek and Meyer Gordon, both of Lorain, for Schaub, et.
   WASHBURN, J.

, 'The law is well settled, as we have so many times in opinions stated, that upon such a motion the court is called upon to determine a legal- question only ,and in so dding is not permitted to weigh evidence of determine any fact whatsoever. The court is required to assume that everything that is said in the opening statement is true and that every reasonable inference that' may be drawn from what is said is true, leaving for the court to determine only whether such facts and inferences, unexplained, undenied and unaffected by any other facts, entitle the plaintiff to a judgment in law. If there is an inconsistency in the statement, the court may not disregard that part of the statement favorable to the plaintiff’s right to recover.

In making the opening statement in this case, counsel for the plaintiff, after reading in full the petition filed in the case, said that the defendants employed the plaintiff to sell their farm “or trade it for Cleveland property” and that plaintiff undertook to perform such service and brought to the defendants certain persons who desired to trade their property for defendants’ farm, and that at a subsequent meeting of the parties, after considerable negotiation, in which negotiation plaintiff was acting as the agent of both parties, with the full knowledge and consent of both parties, an agreement was made by which they were to exchange properties; that said agreement was reduced to writing, and after being read over and fully understood by the parties, was signed by them; that in said contract the defendants in writing especially acknowledged the plaintiff as the broker in the transaction and agred to pay the plaintiff the amount sued for as a real estate commission, and that plaintiff had performed all the conditions of his contract with the defendants.

Plaintiff then closed the opening statement, and if the ruling of the court had been made upon the statement thus far made we are clearly and unanimously of the opinion that the court was without power to direct a verdict against the plaintiff. The petition was read ,as the claim of the plaintiff ,and the claim was explained and amplified, and if all that was said to the jury, construed most favorably to the plaintiff, was true, and no defense thereto was made, the defendants would not be entitled to a judgment in their favor.

But at this point in the proceedings, counsel for the defendants stated that he desired to make a motion for a directed verdict and requested that the written contract of exchange referred to in the statement be read as a part of the statement, and counsel for the plaintiff consented to said request and read said contract as a part of the opening statement.

The motion to direct a verdict was then made and sustained.

It is apparent that the court reached the conclusion that was reached solely because there were provisions in the contract which the court construed to be inconsistent with a part of the statement theretofore made by counsel for plaintiff.

The only reasonable inference to be drawn from what had theretofore been said was that defendants, owning a farm which they were anxious to dispose of in order to acquire property in Cleveland, employed plaintiff to negotiate a trade of defendants’ farm for Cleveland property, for which services they agreed to pay plaintiff, and that plaintiff had performed that service.

By the reading of the contract the court’s attention was called to the fact that in the written contract defendants agreed to pay plaintiff the sum stipulated “as his real estate commission for the services performed in bringing about the sale of said property,” and to certain provisions of said contract which indicated that the minds of the parties had not met upon some of the essential terms thereof. From a consideration of the terms of said contract the court found that “a sale of said property” was not brought about by the plaintiff and that the plaintiff had not performed the services which he said he expected to prove he had performed.

We are clearly of the opinion that in reaching said conclusion the court, instead of taking everything that was said1 in the opening statement as true, together with all reasonable inferences to be drawn therefrom, weighed the evidence and considered the merits of the case, which he had no right to do on such a motion.

We are likewise bound, and our conclusion has no ' relation to or bearing upon the merits of the controversy between these parties.

The judgment is therefore reversed for error in directing a verdict, and the cause remanded.for further proceedings according to law.

Funk, PJ, and Pardee, J, concur.


text:
    STATE ex BROWN, Treasurer v COOPER, Treasurer
    Ohio Supreme Court
    No 22304.
    Decided Nov 19, 1930
    Kinkade, Robinson, Matthias, Day and Allen, JJ, concur. Jones, J, not participating.


text:
    SISTERS OF CHARITY v DUVELIUS
    Ohio Supreme Court
    No 22215.
    Decided Nov 19, 1930


text:
    SHELLEY v STATE
    Ohio Supreme Court
    No 22313.
    Decided Nov 19, 1930

      ■ Marshall, CJ, Kinkade, Robinson, Jones, Matthias and Allen, JJ, concur.


text:
    ESTHER MENDELSON v HARRY MENDELSON
    Ohio Supreme Court
    No 22197.
    Decided Nov 19, 1930


text:
    STATE ex FLEISHER ENGINEERING & CONSTR CO v STATE OFFICE BLDG COMM
    Ohio Supreme Court
    No 22545.
    Decided Nov 19, 1930
    Marshall, CJ, Kinkade, Robinson, Jones, Day and Allen, JJ, concur.


text:
    SHIELDS, et v SUPREME COUNCIL, RAYAL ARCANUM
    Ohio Supreme Court
    No 22283.
    Decided Nov 19, 1930.


text:
    EVANS et v LAWYER
    Ohio Supreme Court
    No 22431.
    Decided Nov 19, 1930
    Marshall, CJ., Kinkade, Robinson, Jones, Matthias and Allen, JJ, concur.


text:
    STATE ex HARTFORD FIRE INS CO v WEYGANDT
    Ohio Supreme Court
    No 22258.
    Decided Nov 19, 1930
    Marshall, CJ, Kinkade, Robinson, Matthias, Day and Allen, JJ, concur.


text:
    O’NEILL v THOMAS
    Ohio Supreme Court
    No 22378,
    Decided Nov 19, 1930
    Marshall, CJ, Kinkade, Matthias and Allen, JJ, concur.


author: By PHILLIPS. J.

text:
    LUCHANSKY, Plaintiff-Appellee, v. J. V. PARISH, INC., Defendant-Appellant.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3927.
    Decided October 25, 1957.

      Michael W. Kossach, Youngstown, for plaintiff-appellee.
    Harrington, Huxley & Smith, Youngstown, for defendant-appellant.
   OPINION

By PHILLIPS. J.

Crossing from the northerly to the southerly side of Indianola Avenue at the cross walk on the westerly side of Market Street in Youngstown, at ten thirty on a snowy December morning in 1954, plaintiff was struck by defendant’s truck operated by its agent from a southerly direction on Market Street to and in a westerly direction on Indianola Avenue, and injured resulting in an action for damages in the court of common pleas.

The jury returned a verdict for the plaintiff for $25,000.00. The trial judge overruled defendant’s motions for judgment non obstante veredicto and for a new trial, and entered judgment on the verdict. From that judgment defendant appealed to this court on questions of law.

On cross-examination in her case in chief plaintiff testified that before leaving the sidewalk of Indianola Avenue and entering upon the vehicular travelled portion thereof she “looked at the light”, which automatically controls traffic at the intersection of .Market Street and Indianola Avenue “and saw the light change” in her favor, but “previously to that, before I had stepped off the curb, I looked both ways,” “stepped down from the curb on Indianola Avenue and looking straight ahead started to cross the street — took about three or four steps when she was struck by the truck, it was right on top of me.”

Defendant contends that plaintiff’s act “in stepping into or upon Indianola Avenue after she had noticed that the light had changed, without looking in both directions to see what was approaching” brands plaintiff as negligent as a matter of law, which negligence without question was a proximate' cause of the accident, and entitles defendant to a directed verdict at the close of plaintiff’s case or at the close of all the evidence introduced in the trial court.

Defendant testified that he saw plaintiff at no time crossing Indianola Avenue from the north to the south side thereof; paid no attention to a “thump” when he struck plaintiff, and brought his truck to a stop a distance of two hundred feet from the place he struck her.

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.

In our opinion the evidence properly admitted at the close of all the evidence clearly presented questions for the determination of the jury depriving defendant of the right to have a verdict directed in its favor at the close of all the evidence.

In Keller v. City Railway Co., 53 Abs 417, the second and third paragraphs of the syllabus state:—

“Under §6307-13 GC, a pedestrian having the green light in his favor, has the right to proceed across an intersection within the crosswalk and the operator of a bus, turning left and into such crosswalk, has the duty to yield the right of way to such pedestrian.
“The preferential right of way afforded a pedestrian under §6307-13 GC, protects him in proceeding across an intersection within a crosswalk until such time as he knows, or in the exercise of ordinary care should know, that the driver of a vehicle approaching the crosswalk does not intend to stop.”

In Hurt v. Charles J. Rogers Transportation Co., 164 Oh St 329, the fourth paragraph of the syllabus reads:—

“The weight of an inference as well as the weight of the explanation, offered to meet the inference is for the determination of the trier of the facts, unless the explanation is such that reasonable minds could not reach different conclusions as to its preponderating value when measured against the weight of the circumstantial evidence.”

In Columbus Pipe & Equipment Company v. Ackerson, 135 N. E. (2nd) 75, the second paragraph of the syllabus reads:—

“If upon any essential issue reasonable minds might differ, motion to dismiss at close of plaintiff’s case should be overruled.”

In Titus v. Stouffer, 35 Abs 145, the eleventh paragraph of the syllabus reads:—

“Where pedestrian’s uncontradicted evidence showed that he looked in both directions before starting across the intersection, thus complying with the statutory law, a failure to again look as he proceeds across cannot be determined negligence as a matter of law, but raises a factual question for the determination of the jury.”

In Phillips v. Weeden, 18 Abs 229, in the third paragraph of the syllabus it is said:— /

“A pedestrian about to cross the street, who has in the exercise of ordinary care looked once in both directions for approaching traffic, has no duty or obligation to continue to look in either direction."

Certainly reasonable minds might differ on the question of plaintiff’s contributory negligence.

The trial judge charged the jury in writing before argument, erroneously defendant claims, the following propositions of law submitted by plaintiff separately and not as a series:—

“3. Ladies and gentlemen of the jury, I charge you that the violation of a state statute passed for the protection of the public, is negligence per se, and where such act of negligence by a defendant is the direct and proximate cause of an injury, not directly contributed to by the injured person, the defendant is liable.”
“4. Ladies and gentlemen of the jury, the court charges you that the term ‘pain’ means a disturbed sensation causing suffering or distress.”
“5. Ladies and gentlemen of the jury, I charge you that, if under the law and the evidence, you find the plaintiff is entitled to recover, your verdict should be in such amount as will fairly and fully compensate her for the injuries which she has actually sustained directly resulting from such collision, but in any event your verdict cannot exceed the amount claimed, which is $50,000.00. This compensation would include the pain and suffering which she has already endured, as well as the pain and suffering which she is reasonably certain to endure, if any, in the future. You will consider the nature, extent, character and permanency of the injuries and any and all the circumstances shown in the evidence bearing upon this question in determining the amount of damages which she is entitled to receive.”

Negligence per se exists only where there has been a violation of a specific requirement of the act. However, in determining the prejudicial character of request number two we must look to the charge as a whole, including the general charge. The evidence in this case shows the violation of the statute providing for the sounding of a warning. Further, it is conceded that defendant was negligent when plaintiff was struck. While perhaps erroneous it is not so prejudicial to defendant as to warrant a reversal of the judgment in this case.

The charge numbered three is bad, so defendant claims, because it deals in generalities, “is not pertinent to the issues and facts, is misleading and confusing,” and states that “a state statute passed for the protection of the public is negligence per se.”

Admittedly defendant’s driver did not sound a warning of his approach.

In the case of Eisenhuth v. Moneyhon, 161 Oh St 367, the second paragraph of the syllabus reads:—

“Where a legislative enactment imposes upon any person a specific duty for the protection of others, and his neglect to perform that duty proximately results in injury to such another, he is negligent per ,se or as a matter oí law.”

At page 377, the court stated:—

"If a pedestrian were here ‘affected,’ * * * clearly a failure of the defendant to give any signal by sounding the horn would be a violation of a definite requirement of the statute and would be negligence per se.”

Defendant claims charge number four is objectionable because it defines pain, which is a commonly understood word requiring no definition.

The definition of the word “pain” as submitted by the plaintiff and charged by the trial judge is that contained in Blakiston’s New Gould Medical Dictionary, which word the author thereof thought was sufficiently uncommon to define in his highly rated work. The authority of a court to grant such request to charge is found in 39 O. Jur., Section 294, Page 916, under the topic “defining words and terms.”

In our opinion the trial judge committed no error prejudicial to the defendant in charging the jury as requested by plaintiff in request to charge before argument numbered four.

Charge number five is objectionable, defendant contends, because of reference to the fact that the verdict of the jury could not exceed $50,000.00. and because it authorized the jury to award compensation for “future pain and suffering” when future pain and suffering was not indicated by the evidence. i

In the eighth paragraph of the syllabus in the case of Misrach v. Epperson, 32 Oh Ap 451, it is said:—

“In action for injuries sustained when struck by automobile while crossing street at place other than regular crossing, instruction on measure of damages stating that measure of damages is compensation ‘within amount claimed’ held not improper, since words ‘within amount claimed’ merely indicated that no larger amount than claimed in petition could be awarded.”

See also Volume 1, Section 38.22, Page 375 Ohio Instructions to Juries by Lehr Pess.

There is much evidence in the bill of exceptions bearing on the issue of pain and suffering.

It is settled law that special charges and the general charge should be construed together. See Varner v. Eppley, Admr., 11 Abs 594, affirmed in 125 Oh St 526.

In 2 O. Jur., Part 2, Section 755, Pages 1425 and 1426, it is said:—

“* * * if the charge considered as a whole appears to be fair and proper and to state the law of the case correctly and in a way reasonably calculated to enable the jury to understand the rules of law which they are to apply to the evidence before them, the judgment will not be reversed because the language of some part of the charge may, if taken alone, be objectionable, or subject to criticism, or because some clause, sentence, or paragraph standing by itself is erroneous, inaccurate, obscure, ambiguous, or misleading or confusing. * *

Defendant contends that the trial judge erred to its prejudice in permitting plaintiff’s medical witness to answer a hypothetical question because it was predicated upon assumptions which either were not established or were absolutely false such as that plaintiff “was unconscious for some little time,” and not based on fact, for example “from the time of the accident until she was discharged by her family .doctor, which was July 11, 1955, her pressure was elevated”; and because in the charge the trial judge “omitted to instruct the jury that it was incumbent on plaintiff to establish the premise included in the hypothetical question by a preponderance of the evidence”; and finally, because “under all of the facts the verdict' was excessive and appears to be given under the influence of passion and prejudice, which is assigned as a separate ground of error but which will be disposed of under the claimed error of submission of the hypothetical question, which question reads:—

“Q. Now, doctor, I want to ask you this hypothetical question, and the facts that I am going to propound to you I want you to assume to be true. Assume, doctor, that on the 10th day of December, 1954, Mrs. Luchansky at that time was 36 years of age, married, mother of three children; that on that date while in the process of crossing Indianola Avenue in the City of Youngstown, crossing the intersection of Indianola Avenue at Market Street, while in the process of so doing she was struck by a truck, thrown to the pavement of the street. Assume further, doctor, that she was unconscious for some little time, and that the next , thing she remembered was some person or persons attempting to revive her; that she was then taken to the South Side Hospital where she was confined for a period of four days. Assume further, doctor, that she had laceration of her forehead, laceration of her lip, laceration of her chin, laceration of her left wrist, and multiple bruises and contusions over various parts of her body. Assume further, doctor, that upon her discharge from the hospital the wound of her left wrist became infected which required incision and drainage. Assume further, doctor, that in that interim, from the time of the accident until she was discharged by her family doctor which was July 11, 1955, her pressure was elevated, that she suffered dizziness, headaches, discomfort, nervousness and blurring of vision.
“Assuming those facts to be true, doctor, in your opinion based upon reasonable medical certainty, would you say that there is a causal connection between the set of facts which I have stated and the diagnosis which you made of her on June 1, 1956?”

The evidence introduced by defendant’s counsel on cross-examination satisfies us that the fact of plaintiff’s unconsciousness and high blood pressure is established conclusively laying a'foundation for the hypothetical question in controversy.

When the trial judge inquired of counsel whether they wished to suggest additions to the charge counsel for defendant said “We have nothing further, your honor.”

In 2 O. Jur., Part Two, Section 746, Page 1396, it is said:—

“* * * the rule has not been modified that counsel cannot complain of errors of omission where they sit by and fail to make request for a more specific charge * *

In 21 O. Jur. (2nd) Section 429, Page 438, it is said:—

“Apart from an hypothesis based upon facts within the witness’s own personal knowledge, a hypothetical question must be based upon facts assumed to have been proved in the case on trial — facts which the evidence may warrant the jury in finding to exist.”

Section 428, Page 438, states:—

“* * * And the fact that hypothetical or other facts on which the expert premises his professional opinion are meager and weak may affect the weight, but not the competency of the testimony.”

Section 430, Page 442, states:—

“Counsel on each side, in propounding hypothetical questions, are entitled to include therein such facts as they claim are shown by the evidence, though the evidential facts are in dispute, and it cannot be known where the jury will find the preponderance to be. * * *.”

Plaintiff, aged thirty-six years, was struck on the back of her head resulting in a concussion of the brain, and suffered temporary unconsciousness, blurred vision, dizziness, easy fatigue, and psychoneurosis; had a line fracture of the nasal bones, causing irregularity and blocking her nasal passages, necessitating future surgical interference; lacerations about her face and forehead requiring twenty-one sutures to close, permanently scaring and disfiguring her; chest, rib, left wrist, arm and forearm injuries, and multiple bruises of her body and lower extremities, and persistent high blood pressure, general impairment of her health, lowered vitality, and complete incapacity for four months.

Counsel for plaintiff cites an article by Dr. Max T. Schnitker entitled “Trauma to the skull, brain and spinal cord” as indicating the present thinking of medical men on head injuries. It is stated in that article which appears in the December 17, 1956 issue of the Ohio Bar at page 1001, as follows:—

“* * * The foregoing rules of thumb are not applied simply when one is encountered by a patient who had an apparently trivial head injury and continues to complain of headaches, dizziness, irritability and easy fatigue. This is called the post traumatic cerebral contusion syndrome and is seen more commonly following the less severe head injuries than usually the more severe ones. * * *.”

In another article by Dr. Jack M. Schechter entitled “Traumatic Neuroses,” reported in the March 25, 1951, issue of the Ohio Bar, the author gives a case history of:—

“A young woman while walking on street at night was suddenly attacked by an unidentified, male. She ran into a building entrance, but could not enter the building itself; she spent some thirty minutes until found by the night watchman. Shortly thereafter, she appeared dazed and distant. Subsequently, she developed spells of crying that lasted a few days, slept poorly, had recurrent dreams of being chased and was unable to move for several months thereafter. She seemed sensitive to loud noises and sudden movement around her. For several months she avoided large groups and feared being alone.”

In his work “Injuries of Skull, Brain and Spinal Cord” Dr. Samuel Brock, Professor of Neurology, New York University, College of Medicine, the author discuses neuroses resulting from head injuries and the seriousness thereof, and deals with cases almost identical with the one we review.

While not necessarily bound by these authorities in this case we cite them as indicating the advance in medical thinking with reference to even minor head injuries and nervous shock.

In Smith v. Pittsburgh & W. Ry. Co., 90 Federal Reporter 783 it is said:—

“A verdict should not be set aside simply because it is excessive in the mind of the court, but only when the excess is shocking to a sound judgment and a sense of fairness to the defendant. Where there is any margin for a reasonable difference of opinion in the matter, the view of the court should yield to the verdict of the jury, rather than the contrary.”

In a dissenting opinion written in Haley v. Ohio, United States Reports Volume 332, page 596 at page 624, it is said:—

“Until a better way is found for testing credibility than by the examination of witnesses in open court, we must give trial courts and juries that wide discretion in this field to which a living record, as distinguished from a printed record, logically entitles them. In this living record there are many guideposts to the truth which are not in the printed record. Without seeing them ourselves we will do well to give heed to those who have seen them.”

In Dietsch v. Burnside Motor Freight Lines, Inc., 53 Abs 321 at page 328, it is said:—

“* * * The measurement of this damage is, within all reasonable limitations, in the light of present economic conditions, within the discretion of the jury.”

In the case of Telling Belle Vernon Co. v. Krenz, 34 Oh Ap 499 at page 502 it is said:—

“* * * If there is credible evidence, that is all that is necessary, and a reviewing court may not disturb the verdict in the face of that fact.”

In 2 O. Jur., Section 635, page 1153, it is said:—

“No reversal can be had on the ground that the judgment is against the weight of the evidence except as a matter of law. It follows that a judgment will not be reversed on this ground merely because the evidence sustaining it seems open to suspicion or does not impress the reviewing court; nor because the reviewing court entertains some doubt as to whether such judgment is in fact supported by the weight of the evidence, is not in full accord with the verdict or finding of fact on which it was rendered, is not satisfied that such verdict is right, or thinks that another jury might arrive at a different conclusion or that a contrary verdict might well have been rendered or that the trial judge might well have set the verdict aside; nor because it has views of its own contrary to those expressed by the jury or the court below, or differs in its opinion as to the facts or as to the inferences to be drawn from the facts proved, or would have rendered a different verdict or decided differently if it had heard the case in the first instance.”

See also Tod v. Wick Bros. & Co., 36 Oh St 370; Industrial Commission v. Mounjoy, 36 Oh Ap 476; and Riegel V. Belt, 119 Oh St 369.

The trial judge did not err to defendant’s prejudice in overruling its motion for judgment non obstante veredicto.

In 2 O. Jur., Part 2, Section 833, page 1583, it is said:—

“Even though there may be no such conflict in the testimony as makes it necessary for the jury to determine disputes or questions of veracity, if the circumstances disclosed by the evidence are such that it can be said that different minds might reasonably arrive at different conclusions as to the inferences to be drawn therefrom and as to the ultimate facts established thereby, the case is still one for the jury and it is proper and not ground for reversal to overrule a motion for a directed verdict and constitutes reversible and prejudicial error to grant it.”

The judgment of the court of common pleas is affirmed.

NICHOLS, PJ, GRIFFITH, J, concur.


text:
    SECOND FEDERAL SAVINGS AND LOAN ASSOCIATION OF CLEVELAND, Appellant, v. BOWERS, Tax Commissioners, Appellee.
    The Board of Tax Appeals, Department of Taxation, State of Ohio.
    No. 35243.
    Decided October 30, 1957.
    Lawrence & Bates, Cleveland, for appellant.
    William Saxbe, Atty. Geni., By John M. Tobin, Asst., Columbus, for appellee.
   OPINION

This cause and matter came on to be considered by the board of tax apeals upon a notice of appeal filed herein under date of September 18, 1957, by the appellant above named from a final order of the tax commissioner dated August 20, 1957, in and by which final order the commissioner denied appellant’s application for review and redetermination of a tax assessment made against it as a financial institution for the year 1957.

The final order of the tax commissioner reads as follows:

“This proceeding, being the application of the Second Federal Savings and Loan Association of Cleveland, Cleveland, Ohio, for review and redetermination of a tax assessment made against it as a financial institution for the year 1957, after being duly heard, came on to be considered
“In making its return for the year 1957, the applicant listed no taxable value for ‘Book Value of Shares or Capital Employed as of December 31, 1956,’ and noted therein that ‘Obligations of U. S. Government and Federal Instrumentalities exceed Book Value of Shares or Capital Employed.’ Upon audit, acting pursuant to the provisions of §§5725.04 and 5725.05 R. C., the Department determined the ‘ownership interests of the depositors’ to be the total book value of applicant’s capital employed as of December 31, 1956. The applicant filed its application for review and redetermination as provided in §5711.31 R. C., contending that the provisions of law under which ownership interests of depositors were assessed for purposes of taxation are invalid and unconstitutional.
“Being fully advised in the premises, the tax commissioner finds that as an administrative official he is without authority to pass on the question of the constitutionality of the statutes here involved, such being the province of the courts alone. Cincinnati, W & Z. R. Co. v. Clinton County, 1 Oh St 77; State, ex rel. Davis v. Hildebrant, 94 Oh St 154, 114 N. E., 55. Furthermore, the tax commissioner finds that as an administrative official, he must proceed in accordance with the terms and provisions of the statutes with which he is concerned with the assumption of their constitutionality. East Ohio Gas Co. v. Public Utilities Comm., 137 Oh St 225, 18 O. O. 10, 28 N. E. (2d), 599; Argo v. Kaiser. 66 Abs 538, 118 N. E. (2d), 162. Accordingly, the tax commissioner finds the assessment here under review to be proper and correct.
“Finding no error in the assessment as heretofore made, it is the order of the tax commissioner that such assessment be, and the same hereby is, affirmed.”

The appellant says that the final order of the tax commissioner is erroneous in the following respects:

“1. The obligations’ of the United States Government and Federal Instrumentalities exceed the book value of the capital employed, and hence no valid tax in any amount could be assessed.
“2. An invalid property tax was levied on the appellant’s capital indirectly on the- pretended ‘ownership interests’ of the depositors without excluding federal securities.
“3. These federal securities so assessed are immune from state taxation.
“4. If the depositors, in fact, had any real ‘ownership interests,’ which appellant disputes, the assessment under review is invalid and void because such ‘ownership interests’ were entirely represented by federal obligations and the same could not be withdrawn and had no taxable value.
“5. All provisions of law, including §§5701.06, 5707.03, 5709.02, 5725.04, 5725.07, 5725.08, 5725.22, 5725.24, 5719.09 and 5719.10 R. C., under which so-called ‘ownership interest’ of depositors were assessed for purposes of taxation are invalid and unconstitutional.”

The cause was submitted to the board of tax appeals on the notice of appeal and the transcript furnished by the tax commissioner. The parties, through their counsel, have stipulated that no additional evidence is to be offered and that the Board should decide tfie case pn the documents now before it.

The appellant has no capital stock and is a “financial institution” within the definitions set out in §5725.01 R. C. Within the time prescribed by law it caused to be filed with the tax commissioner the “Financial Return of taxable property for 1957” wherein it computed and paid $96,422.92 as tax on its deposits as of November 21, 1956. As to this tax, there is no dispute.

Upon audit of the tax return, the tax commissioner made an additional assessment against the appellant on the basis of the “ownership interests of the depositors” of the appellant financial institution as of December 31, 1956, amounting to $3,946,000.00, against which sum he proceeded to levy the 2 mill tax ($7,892.00) provided by §5707.03 R. C., and the 3 mill tax ($11,838.00) provided by Amended House Bill No. 945 adopted by the 101st Ohio General Assembly, effective for the period July 6, 1956, to September 1, 1959. The total tax of $19,730.00 levied and assessed against the “ownership interests of the depositors” is the only matter in issue in this appeal.

It is noted that the appellant makes no claim that the assessment made by the tax commissioner is contrary to Ohio law. Its contention is that the law which first sets up “ownership interests of the depositors” in financial institutions without shares of stock and then proceeds to tax said intangible interests, is void and unconstitutional in so far as the computation does not exclude obligations of the United States Government and Federal instrumentalities owned by the financial institution.

If the appellant’s contention is correct, then the statutes providing for the assessment of the complained of tax is unconstitutional, as applied to appellant’s 1957 tax return.

Appellant’s total resources, as of December 31, 1956, amounted to $64,313,371.89, including obligations of the United States and Federal Instrumentalities in the amount of $7,810,748.10. Its reserve fund and undivided profits (capital) as of this same date_was $3,945,999.96. If the Federal Securities were deleted from the computation of appellant’s resources the reserve fund and undivided profit account (capital) would be a negative figure and therefore, there would no capital available to tax.

This constitutional question is interesting. However, the Board of Tax Appeals has no jurisdiction or authority to declare an Act of the legislature to be unconstitutional. The Board of Tax Appeals, being a quasi-judicial body, must and does consider all sections of the Revised Code to be constitutional enactments. In this connection see National Distillers Products Corporation v. Glander, 49 Abs 330, 337; Hillsborough Twp. v. Cromwell, 326 U. S., 620, 625; 90 L. Ed., 358, 364; Schwartz v. Essex County Board of Taxation, 120 N. J. L. 129, 132, affirmed 130 N. J. L., 177. In the case last above cited it was said;

“It is undisputable that the determination of the constitutionality of an act of the legislature rests with a judicial body; not with a quasi-judicial body such as the State Board of Tax Appeals. The final responsibility to pass upon the constitutionality of a given piece of legislation rests in the courts and it is the duty of the various state agencies and administrative bodies to accept a legislative act as constitutional until such time as it has been declared to be unconstitutional by a qualified body.”

Upon consideration of the matter as thus presented to it, the board of tax appeals finds that the tax commissioner committed no error in his final order inasmuch as he was proceeding under the assumption that the assessment statutes in question were constitutional. The final order of the tax commissioner is, therefore, affirmed.


author: By BOPE, J.

text:
    STATE v. SWITZER.
    Municipal Court, Findlay.
    No. 310.
    Decided March 6, 1956.
    R. J. Rinebolt, Asst. Solicitor, for the State.
    Thomas A. Orndorff, for defendant.
   OPINION

By BOPE, J.

Defendant was arrested March 4, 1956, by the Sheriff of Hancock County upon a warrant issued by the Judge of this Court at chambers about 5 P. M. March 3rd pursuant to an affidavit of that date signed by Vivian E. Switzer, as complaining witness, charging defendant with the offense of child stealing, a felony under the laws of this state. He was admitted to bail upon his own recognizance in the sum of Five Hundred Dollars, conditioned upon his appearance before this Court, and on the 6th day of March made his appearance, when a preliminary hearing was conducted, there being no plea of guilty, defendant being present in person and with counsel, and the State being represented by the Police Prosecutor.

The following witnesses were sworn and examined on behalf of the State:

Vivian E. Switzer, 203 Ash Avenue, Findlay;
Truman Byrd, 203 Ash Avenue, Findlay;
Lola Ann Byrd, 203 Ash Avenue, Findlay;
Mildred Elizabeth Switzer, aged 11, 203 Ash Avenue, Findlay.
The complaint charges that defendant, on March 3, 1956,
“unlawfully did take, lead and carry away one Mildred Elizabeth Switzer, a child then and there being under the age of twelve years, towit: of the age of eleven years, with intent unlawfully to detain said child from Vivian E. Switzer, the mother of said child, she, the said Vivian E. Switzer, then having the lawful charge of said child,”

contrary to the form of the statute, §2901.33 R. C.

The elements of this crime, each of which, to sustain a conviction, must be proved beyond a reasonable doubt, are:

1. Taking, leading, carrying away or enticing child
2. Under age of twelve years
3. With intent unlawfully to detain or conceal child from person having lawful charge of it
4. Venue (in the County of Hancock)

According to the syllabus in the case of Mayo v. State, 43 Oh St 567, the intent unlawfully to detain or conceal must accompany the act of taking the child.

It appears from the testimony that the defendant, Delbert P. Switzer, and the complaining witness, Vivian E. Switzer, are husband and wife and the parents of the child. It further appears that they are living apart, and have an action for divorce pending in' the Court of Common Pleas of this county, in which the wife is plaintiff and the husband is defendant, and in which that Court, on December 17, 1955, made an order requiring the defendant to make certain weekly payments for the child’s support and including the following provision:

“It is further ordered that the plaintiff shall have the temporary custody and control of said minor child of the parties, with the right of reasonable visitation granted to the defendant as long as his weekly payments are made as heretofore ordered.”

The complaining witness admitted on cross examination that she had been informed by the attorney representing her in the divorce suit, prior to the time of the alleged offense, that the required payments had been made, and that the defendant was coming to visit the child. It further appears from the testimony of several witnesses, which the defendant made no attempt to deny, that on March 3rd at about 1 o’clock P. M. the defendant came to the house at 203 Ash Avenue, Findlay, where the child was living with her mother, asked for the child and said he wanted to and/or was going to take her with him. The child said she did not want to go with him, whereupon the defendant picked her up, carried her, protesting, to his car and drove away. It further appears that he brought her back at about 5:30 P. M. of the same afternoon.

The Court permitted testimony, and heard argument, to the effect that the child’s mother, complaining witness herein, feared for the child’s safety and welfare during the time she was gone and feared that defendant would not bring her back, hence had some justification for filing this complaint. It does not appear that the child did in fact suffer any harm or injury from this experience. And the mother testified that she did not ask the defendant what he intended to do with the child.

Now the mother’s fears, though they are regrettable and though they tend to explain her action, appear to be unsupported by any other testimony adduced before the Court bearing upon the intent of the defendant. Recognizing that intent is a process of the mind, incapable of physical proof, and can only be determined from evidence of extrinsic matters, which determination is the function of the jury in our system, this Court believes nevertheless and finds that no evidence was presented from which a jury could find an int.ent on the part of the defendant unlawfully to detain this child from her mother. At most the evidence indicates an intention to visit with her away from the mother’s presence. This may. possibly, amount to a violation of the order of the Court of Common Pleas respecting custody and visitation. If so, since that Court has full power to deal with such violations in the exercise of its plenary jurisdiction in divorce, the mother’s remedy is to invoke such jurisdiction.

Finding no probable cause to believe that the offense charged in the affidavit was committed, or that the defendant committed such offense, this Court dismisses the complaint and discharges the accused.


author: By BRYANT, J.

text:
    CUTNAW, Plaintiff -Appellee, v. COLUMBUS (City), Defendant-Appellant.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5923.
    Decided October 21, 1958.
    Guy R. Martin, Columbus, for plaintiff-appellee.
    Russell Leach, City Atty., Alba L. Whiteside, Asst. City Atty., Columbus, for defendant-appellant.
   OPINION

By BRYANT, J.

This is an appeal from the judgment of the Columbus Municipal Court. Walter R. Cutnaw, plaintiff in that court, appellee herein, brought suit against the city of Columbus, defendant below, appellant herein, for damages in the amount of $535. Cutnaw in his petition alleged that the city of Columbus operated an off-street public parking garage at 60 East Long Street in the city of Columbus where it parked cars for compensation; that on May 4, 1956 he left his 1951 Olds automobile at said parking garage to be parked; that an employee of the city of Columbus in said parking garage negligently handled said automobile, running it over a large piece of timber and backing it over the edge of the ramp letting the rear of the said car fall down and in the process causing the top of the automobile to be smashed in by the overhanging roof, doing substantial damage to the car.

Cutnaw made three specifications of negligence as follows: (1) backing his said automobile at a high rate of speed causing it to run over a piece of timber eight inches square, used as a backstop; (2) failing to keep the said car under control and (3) entrusting the parking of said car to a reckless and irresponsible attendant. Cutnaw claimed that as a direct and proximate result of the negligent act of an employee of the city of Columbus the value of his car, which had been $900 prior to the accident, was reduced to $400 with damage in the amount of $500 and further that he incurred expense in the sum of $35 for hired transportation for a total of $535 damages prayed for in the petition.

For its answer the city of Columbus admitted that it was a municipal corporation; that it operated a public off-street parking garage at the specified location; that it parks cars there for compensation “but not for profit”; that on the date in question Cutnaw left his said automobile at the said garage for parking and that while it was parked there “said automobile ran off the edge of the floor.” The answer of the said city included a general denial for its first defense and for its second defense alleged the brakes on Cutnaw’s automobile were defective and would not stop the automobile; that Cutnaw knew of this defect and was negligent in failing to warn employees of the city of Columbus of this defect and that said defective brakes were the proximate cause of the damage to Cutnaw’s car. For its third defense the city of Columbus alleged that it operated the said parking garage in “the performance of a governmental function of said defendant.”

Cutnaw in his reply denied that the brakes in the automobile were defective alleging that they were in good condition and further alleging that the accident was due to a garage employee accidentally stepping on the gas pedal when he intended to step on the brakes. Cutnaw denied that the operation of the public parking garage was the performance of “a governmental function.” Cutnaw further alleged in his reply that the garage is operated for profit and that the city of Columbus in so operating it “acts as an individual enterprise” and not in the performance of a governmental function.

The matter was tried to a jury which returned a verdict unanimously agreed to by all twelve members thereof in the amount of $554 in favor of Cutnaw or $19 more than was prayed for in plaintiff’s petition. On behalf of Cutnaw there was a motion to grant a remittitur in the amount of $19 bringing the verdict and judgment down to the amount prayed for in the petition. On behalf of the city of Columbus two motions were filed, one asking that a mistrial be ordered and the other praying for judgment notwithstanding the verdict.

The trial court overruled the motion for mistrial and made a finding that there was nothing to indicate that the verdict of the jury was rendered under the influence of passion or prejudice but found that the verdict exceeded the amount of damage shown by the evidence and ordered a remittitur in the amount of $254, which the plaintiff accepted. The court entered judgment against the city for $300 damages and costs. The court further overruled the motion for judgment notwithstanding the verdict whereupon the city of Columbus filed its notice of appeal and thereafter its brief and assignment of errors containing eleven alleged errors.

The first assignment of error relates to the admission and exclusion of evidence with considerable objection being made to the bill for painting the automobile. We do not agree that, this is objectionable as it is merely one of the many forms of, evidence, which taken together with other evidence, gave the jury the necessary facts upon which to determine the ultimate questions in the case. We have examined plaintiff’s exhibits one, two and three, being photographs of the exterior of plaintiff’s automobile indicating that substantial damage had been done thereto. With reference to the exclusion of testimony said to be part of the res gestae, it does not appear that this was prejudicial to the defendant. In our judgment the first assignment of error is not well taken. We shall now give our attention to the remaining assignments of errors complained of in numbers two through ten excluding therefrom assignment of error four. We will consider assignments of errors four and eleven separately.

The second and third assignments of errors relate to the overruling of defendant’s two motions for directed verdict; assignment five complains that the verdict was excessive in amount and was the result of passion and prejudice on the part of the jury; the sixth assignment complains that the verdict is too large; the seventh assignment complains that the verdict and judgment are not sustained by sufficient-evidence; the eighth assignment is that the verdict and judgment are contrary to law; the ninth assignment is that the judgment is excessive and the tenth assignment is that the verdict and judgment are against the manifest weight of the evidence.

We have read the record in this case and feel that these assignments of errors are not well taken. Most of the facts in this case are not in dispute. Many important matters are admitted and such matters are entitled to be taken as true along with reasonable inferences arising therefrom. Plaintiff appeared to be a regular customer at this parking garage. The jury might well have believed that the automobile, including its brakes, was in good condition when it was turned over to the attendant. The jury also might have inferred that the brakes were in good working order when the car was parked in the stall for two automobiles. Whether the alleged failure of brakes was the cause of the subsequent accident or whether it was the manner in which the car .was handled, was a question of fact for the jury to determine. They were in a position to see the witnesses and to observe their demeanor during their testimony. The evidence was adequate to sustain their verdict up to the amount prayed for in the petition and as to the $19 excess, the trial court promptly and clearly ordered a remittitur, which not only cured this $19 defect but reduced the amount of judgment from $554 down to $300. The plaintiff promptly accepted the reduced figure.

We conclude, therefore, that the several assignments of errors between numbers two and ten, both inclusive excepting four, are not well taken and must be overruled.

Coming now to the assignment of error number four, namely, the overruling of a motion for mistrial based upon the $19 excess amount of the verdict, we feel that the remittitur ordered by the court of $254 cured this defect and the defendant is no longer in the position to avail himself of it. While the petition makes no mention of interest on the claim, the jury may have had this in mind. The fourth assignment of error is not well taken and must be overruled.

Most of the space in the briefs was devoted to a discussion of the eleventh assignment of error. The defendant contends that the operation of the Long Street parking garage of the city of Columbus is a governmental and not a proprietary function and that, therefore, the city is immune from tort liability in connection with its operation. The city, therefore, as its eleventh assignment of error, challenged the ruling of the trial court that said garage is not a governmental function.

It cannot be successfully urged nor is it contended in this case that tort liability or liability ,for damages attaches to any of those functions or operations carried on by municipal corporations which are properly classified as governmental functions. This is true notwithstanding severe criticism of the harsh results sometimes arising from its application. The difficulty arises in determining which are governmental and which are proprietary functions.

In the case of Broughton v. City of Cleveland, 167 Oh St 29, in which the Supreme Court decided that garbage collection was a governmental function and hence the municipality was immune from liability for its negligent acts in connection therewith, Zimmerman, J., at p. 30 of the opinion had this to say:

“The generally recognized rule that a municipality is not liable for torts committed by its employees in the exercise of a function of the municipality which is governmental in character has been subject to sharp criticism. It is argued that such rule having its origin in the ancient and obsolete maxim that ‘the king can do no wrong’ has no place in this modern day with its enlightened sociological concepts and governmental changes, and that the rule of nonliability is unfair and unjust in that the burden of damages resulting from the tortious or wrongful acts of the government should be removed from the person who sustains them and cast upon the whole community comprising the government, which could bear the loss with little hardship or inconvenience. and ought to do so. It must be conceded that this approach is not without logic and force.
“However, in a great majority of jurisdictions, the rule of municipal nonliability for torts occasioned when a governmental function is being performed still obtains. Through a long line of decisions, extending to the present time, Ohio has consistently followed and applied the rule that, except as otherwise provided by statute, municipal corporations are exempt from liability for negligence in the performance or nonperformance of their governmental functions.”

Judge Zimmerman then cites a number of cases which he described as representative over the years in which the question has been before the court. He then continues at p. 31 as follows:

“Perhaps we are behind the times, but, in the absence of legislation by the General Assembly, this court is not yet ready to abandon the position adopted and retained for so many years.
“It is sometimes difficult to differentiate between activities which are governmental and those which are proprietary. * * *” (Emphasis added.)

One of the early cases dealing with the question of liability or non-liability of municipal corporations for their allegedly tortious acts or omissions is that of Western College of Homeopathic Medicine v. City of Cleveland, 12 Oh St 375, in which Gholson, J., in the course of his opinion at p. 377, says:

“It is obvious that there is a distinction between those powers delegated to municipal corporations to preserve the peace and protect persons and property, whether to be exercised by legislation or the appointment of proper officers, and those powers and privileges which are to be exercised for the improvement of the territory comprised within the limits of the corporation, and its adaptation to the purposes of residence or business. As to the first, the municipal corporation represents the state — discharging duties incumbent on the state; as to the second, the municipal corporation represents the pecuniary and proprietary interests of individuals. As to the first, responsibility for acts done, or omitted, is governed by the same rule of responsibility which applies to like delegations of power; as to the second, the rules which govern the responsibility of individuals are properly applicable.”

The Western College case, supra, involved the alleged liability of the city for damage to a building due to mob violence. The city of Cleveland was held not liable for damages done by a mob. To the same effect is the holding in Wheeler v. City of Cincinnati, 19 Oh St 19, involving a city fire department,- in which the syllabus provided in part as follows:

“* * * and a city is not liable to individuals for damage resulting from a failure to provide the necessary agencies for extinguishing fires, or from the negligence of officers or other persons connected with the fire department.”

Another early case is Springfield v. Spence, 39 Oh St 665, holding there is no liability on the part of the city under special conditions for inadequate provision for surface water drainage.

In Frederick v. City of Columbus, 58 Oh St 538, the principle of non-liability in case of a governmental function again was affirmed where the fire department negligently permitted a fire tower to fall upon and kill a passenger in a nearby carriage.

As repeatedly stated by the courts in their opinions the real difficulty arises in determining under the facts of a particular case whether the function or operation of a municipal corporation is governmental or proprietary.

Pertinent here is an annotation on “Municipal establishment or operation of off-street public parking facilities” found in 8 A. L. R. (2d), p. 373, published in 1950, at p. 397, VI, “Municipal Liability or Immunity,” §15, “In general; function as governmental or proprietary.” In said annotation there appears the following statement:

“As the above heading indicates, this portion of the annotation considers whether a municipal corporation is subject to liability in tort or as a bailee in maintaining or operating an off-street public parking facility, or is protected from liability in such respects by the doctrine of governmental immunity. The solution of this problem usually depends upon whether the particular parking project is regarded as being a governmental function of the municipality, in which case it is immune from liability, or a proprietary function in the pursuit of which the municipality is subject to liability as would be a private operator of a parking facility. Sometimes, however, statutes may expressly control as to municipal liability when engaging in such projects.”

Unfortunately the balance of the annotation discloses that the writer found no cases in point either in Ohio or elsewhere in this country with the exception of Pennsylvania where there appeared to be two diametrically opposed rulings. In one of them, Kappel v. Pittsburgh (1929, Pa), 77 Pittsb Leg J 218, it was held that the maintenance of a parking station by Pittsburgh was an exercise of police power while in a later ease, Automobile Underwriters, Inc. v. Pittsburgh (1942) 44 Pa. D & C 63, the court disagreed with the views taken in the Kappel case, supra, and concluded that maintenance of a public parking station by a city was not an exercise of police power and that the operation was in essence a commercial and private venture constituting a proprietary function of the city in the pursuit of which it was subject to liability for the negligence of its employees. The opinion at p. 70 in the later case states:

“We believe no distinction should be made between the owners and proprietors of private parking lots and garages who are liable both for breach of contracts and torts of their servants, agents, and employees, and a municipality when it ‘embarks in an industrial enterprise through corporate form,’ for in so doing it ‘places its name and its sovereign position on the same plane as that of any other stock company or dealer in a similar commodity’: . . .”

Some idea of the difficulty in distinguishing governmental and proprietary functions is illustrated by Zimmerman, J., in the Broughton case, supra, in which he states that the Supreme Court of Ohio has held that the construction of a sewer by a municipality is a governmental function, citing Hutchinson v. City of Lakewood, 125 Oh St 100, and State, ex rel. Gordon, City Attorney v. Taylor, 149 Oh St 427 and 435. However, the Supreme Court has held, Judge Zimmerman points out, that after such sewers are completed by a municipality, that the maintenance and repair thereof by a municipality is a ministerial or proprietary undertaking in the performance of which the municipality is not absolved from tort liability, citing the following cases: City of Portsmouth v. Mitchell Mfg. Co., 113 Oh St 250; City of Salem v. Harding, 121 Oh St 412, and Doud v. City of Cincinnati, 152 Oh St 132.

We have examined the authorities cited in the briefs in this case in the hope of finding a decision by the Ohio Supreme Court directly in point. Most persuasive, of course, would be a decision in a jury case in which the plaintiff claimed to have suffered injury or damages arising out of the alleged negligent operation of a parking garage operated by a municipal corporation. In this search we have been unsuccessful. The court which tried the case was faced with the same problem.

In a well-reasoned opinion in the Columbus Municipal Court, Schwarzwalder, J„ has this to say:

“The question still remains — Is the operation of a City owned parking-garage a governmental or proprietary function?
“On two different occasions, legal questions involving the operation of the Columbus Long Street parking garage have been before the Ohio Supreme Court. In State, ex rel. Gordon v. Rhodes, 156 Oh St 81, the Supreme Court held that a municipal corporation may construct, operate and maintain an off-street parking garage. Unfortunately the Supreme Court did not decide the question as to whether or not in so operating a garage the City was exercising a governmental' or proprietary function.
“In in re Exemption, 167 Oh St 256, the Ohio Supreme Court held that real property acquired and used by a municipality for off-street parking purposes is not exempt from taxation. Again, the Court did not see fit to specifically say that the operation of a parking garage is a governmental or a proprietary function.
“Counsel for defendant City argues with considerable vigor that in the Rhodes case, supra, the Supreme Court has at least strongly indicated, if not decided, that the operation of the Columbus parking garage is a governmental function. * * *
“With this contention this Court cannot agree. That the Supreme Court was using the phrase ‘public or governmental purpose as distinguished from private’ in relationship to the question of whether or not the City could build such a garage and not a relationship to tort or contract liability of the City, once the garage is built, is obvious * * *.
“Note that Judge Middleton does not once mention tort or contract liability, but discusses public purpose or governmental purpose as it relates to constitutional questions raised by the issuance of bonds to finance the building of the garage.
“The Rhodes and the In Re Exemption cases cited above are not despositive (dispositive) of the question before this court.”

We are of course aware of Cleveland v. Ruple, 130 Oh St 465, involving .the usé of the Exhibition Hall in Cleveland for public parking. That case, however, was an action for an injunction brought sometime after the completion and occupation of the Exhibition Hall in which the plaintiff was the receiver for a competing parking garage open to the public but which was privately owned, who also sued as a taxpayer. There was no claim in that case that there had been damage either to any person or property as the result of the negligent operation of the Exhibition Hall as a garage. The question of tort liability was simply not in the case.

The city of Columbus strongly urges that the operation of the Long Street parking garage is a governmental function and that the said city is, therefore, exempt from any liability as a result. The first case relied on by the city is City of Wooster v. Arbenz, 116 Oh St 281. This is of no help to the city as it merely held that cities were liable for damages due to defects in street, and that solely because of statute, but were not liable for damages due to the negligence of employees or the operation- of trucks used in maintaining or repairing streets.

The next authority cited is Broughton v. City of Cleveland, supra, which was a case involving garbage collection, in which the court held that the collection of garbage by a municipality was both the exercise of a police power and the performance of a governmental function, hence no liability was permissible.

The next case upon which the city relies is State, ex rel. Gordon v. Rhodes, 156 Oh St 81, which already has been referred to in the portion of the opinion of Schwarzwalder, J., above quoted. We observe that this was an action in mandamus in which the city attorney of Columbus sought to mandamus the. mayor and auditor of Columbus to affix their official signatures to bonds authorized by counsel to erect the same Long Street parking garage which furnishes the setting for the case now before the court.

It would seem obvious that the question decided was whether the city was authorized to build such a garage and if so, could they issue bonds to pay the cost thereof. Middleton, J., who write the opinion which occupied nearly twenty printed pages, at p. 87, wrote as follows:

“Reduced to its simplest terms, the question presented to this court for decision is, Does the city of Columbus possess the right and power to acquire and operate off-street parking facilities and, if so, can the cost thereof be financed by the issuance of mortgage revenue bonds which are to be secured only by such parking facilities and the revenues derived therefrom and which do not create a debt of the city and do not involve a pledge of the general credit of the city?”

It was in no sense an action in tort for damages claimed by an injured person, nor indeed could it be, for at that time the parking garage had not even been built. While the court held that such a garage could well be designated as a public municipal purpose for which revenue bonds might be issued, the question was not before the court for decision as to whether a tort action for damages growing out of negligence in the operation thereof would lie.

The next case relied on by the city is the companion case of State, ex rel. Gordon v. Jones et al, 156 Oh St 100, another action in mandamus, in which the members of city council as members of the finance committee thereof are respondents. About the only new feature in the last mentioned case was that the bonds sought to be issued were obligations of the city and within the debt limit. It was not a suit for damages and no question was raised or decided as to whether an action in tort would or would not lie.

The same may be said of the next case cited, State, ex rel. Gordon v. Rhodes, 158 Oh St 129, which again was an action in mandamus to compel two city officials to sign bonds and in which the facts were nearly identical with the two cases just above cited except that the bond ordinance was amended to include a pledge of a portion of parking meter revenues to pay off the bonds. Again, the case was devoid of any attempt to collect damages and the holding offers no solution to this question.

The next case, Garrett, a Taxpayer v. City of Cincinnati et al., 168 Oh St 68, is even more remote to the question now before us. In the per curiam opinion, at p. 69, the court says that the question before it was whether a municipal corporation had the power to raise on-street parking meter fees without any relation to the cost of regulating parking and for the sole purpose of paying part of the cost of the off-street parking program.

The property of the said Columbus parking garage has been held not exempt from taxation. See In Re Application For Exemption of Real Property from Taxation: City of Columbus v. County of Franklin, 167 Oh St 256. The court arrived at that conclusion by construing §5709.08 R. C., as being in pari materia with §717.05 R. C. Thus the Supreme Court held that the said Columbus parking garage even though not constructed by virtue of special statutory authority but rather under its home rule powers as a charter city was not exempt and was subject to taxes. The court held that the legislative provision denying tax exemption to similar structures built under state law, had the effect of denying tax exemption in case of the Columbus parking garage, built under its charter powers.

Perhaps some light may also be shed upon the broad meaning of public purpose by reference to the case of In re Application for Exemption of Real Property from Taxation: City of Columbus v. County of Delaware, 164 Oh St 605, in which the court in the third branch of the syllabus held in part as follows:

“3. A public purpose of a proprietary nature is still a public purpose within the meaning of §5709.08 R. C. * * *”

It is clear, therefore, that the holding that said parking garage is a public purpose did not decide that it was either governmental or proprietary.

It does not appear to us that there is any reason, either in authority or logic, for calling the operation of said parking garage an essential governmental function, no matter how useful or desirable or well authorized it may be. We feel it is clearly a proprietary function and that the court below was fully justified in so holding.

For the reasons above set forth we conclude that the operation of the said Columbus parking garage, while having the characteristics both of a public and a municipal function, is in the nature of a proprietary function and not a governmental function from which it follows that the trial court did not commit error in so holding. The eleventh assignment of error is not well taken and must be overruled. Having concluded that none of the assignments of error are well taken, the judgment of the court below must be and-hereby is affirmed.

PETREE, PJ, MILLER, J, concur.