author: By MILLER, PJ.: By THE COURT:

text:
    BLUM et, Plaintiffs-Appellees, v. HODAPP et, Defendants-Appellants.
    Ohio Appeals, Second District, Montgomery County.
    No. 1959.
    Decided June 10, 1949.

      Harshman & Young, Dayton, for plaintiffs-appellees.
    Jacobson & Durst, Dayton, for defendant-appellant.
   OPINION

By MILLER, PJ.:

This cause comes into this court on appeal by Alfred S. Daneman on questions of law and fact from the judgment of the Common Pleas Court of Montgomery County, Ohio, in which court a judgment was granted to the plaintiffs-appellees awarding them an injunction against the threatened use by the said defendant-appellant of a one-story business building upon the ground that such use violated a certain building restriction on the plat in which it was located.

The amended petition, which named as plaintiffs approximately 106 lot owners, alleged the creation of certain building restrictions in the Berkley Heights Plat about the year 1906. These restrictions were as follows:

“And the said grantee, his heirs and assigns as part of the consideration herein, doth hereby agree and covenant with the said grantor, its successors and assigns, for the faithful performance of the following conditions, to-wit:

First, That no house shall be built upon said premises costing less than Twelve Hundred Dollars ($1200.00).

Second, That no building or part thereof shall be placed and set less than 25 feet back from the line of Traction Avenue on said plat, provided that steps, windows, porticoes, and other usual projections appurtenant thereto, are to be allowed in said reserved space.

Third, That no building or part thereof shall be used in any manner so as to be reasonably objectionable to the occupants or owners of neighboring property.”

The entire amended petition of plaintiffs was grounded upon the claim that number three of these building restrictions was being violated by the appellant and an injunction was granted.

In substance the amended petition averred that the defendant-appellant had erected a one-story building and had intended to use the same in conducting “the business of assembling, storing, packing and shipping therefrom bronze grave markers and of storing, packing and shipping therefrom other articles; will engage in the business of carrying on, experimentally or otherwise, the process of adhering ceramic material or glass to steel by use of heat, and other industrial or manufacturing activities or processes; that such uses as aforesaid or any of them on the said premises or in the said building will cause irreparable damage to the property of these plaintiffs and all neighboring property used for residence purposes; will cause noise, disturbance and great increase in traffic and parking of trucks and motor vehicles in the neighborhood; will impair the desirability for residence purposes and the value and rental value of the property of these plaintiffs and other neighboring property; for all of which these plaintiffs have no adequate remedy at law. * * *”

We have carefully read the entire record containing some 420 pages and without entering into a discussion of the testimony of the various witnesses, will say that we are in full accord with the separate findings of fact as found by the trial court, and our findings will therefore be the same. However, we are compelled to differ with the trial court upon the law applicable thereto. An examination of the record discloses that two legal questions are presented: (1) Was the action prematurely brought? (2) If the answer is in the negative, can one lot owner under the facts here presented enjoin another lot owner from violating a restrictive covenant in the deed? In other words, can the restrictive covenants be enforced only by the grantor or can they be enforced by any lot owner in the subdivision? In answer to the first question we are of the opinion that the action was not prematurely brought. Although the restriction relates solely to the usé to which the building was to be applied,, and although never so used, we find that the record clearly establishes that the intended use would be reasonably objectionable to the occupants or owners of the neighboring property. The intentions of the defendant are clearly set forth in his testimony and unless restrained a violation would ensue, provided the covenants were legally enforceable by these plaintiffs. This leads to the second question which we are compelled to resolve in favor of the defendant. The rules applicable to the facts in the case at bar are well set forth in Lopartkovich v. Rieger, 66 Oh Ap 332. At. page 335 appears the following language:

“* * * Judge Washburn, of this court, when sitting as; a member of the Court of Appeals of the Eighth Judicial District, set out the following rules in a case similar in some respects to the case at bar. It was there said: ‘As we interpret the decisions in Ohio the rule is that, when an owner has a general plan of uniform restrictions, and such restrictions are inserted in each deed of an allotment, one purchaser can not enforce such restrictions against another purchaser unless the restrictions are so drawn that each purchaser covenants and agrees, for the benefit of every other lot owner, that he will observe the restrictions, or unless the purchaser against whom the restrictions sought to be enforced has notice of such a general plan and purchases his lot with reference thereto. Such notice is shown when the recorded plat contains the general scheme or plan, or when the allotter in his deeds covenants that all sales of lots in his allotment shall be subject to like restrictions.’ * * *”

It will be noted under the aforesaid rule that at least one of the following requirements must be met: (1) The restrictions must be so drawn that each purchaser covenants and agrees for the benefit of every other lot owner that he will observe the restrictions; or, (2) The purchaser against whom the restriction is sought to be enforced had notice of a general plan and purchased his lot with reference thereto. Such notice is shown when the recorded plat shows the general scheme or plan or when the allotter in his deeds covenants that all sales of his lots in the allotment shall be subject to like restrictions. Now the first requirement is not met for the record discloses each purchaser did not covenant and agree to observe the restrictions for the benefit of every other lot owner. The plaintiff does not agree with us on this proposition, claiming that the third clause of the restriction is for the benefit of all the lot owners of the subdivision, but the restriction itself states that it shall be applicable only “to the occupants or owners of neighboring property”. Can all of the lot owners of the subdivision be said to be owners of neighboring property? Webster’s New International Dictionary, Second Edition, defines “neighboring” as “being near; adjacent”. Examining further in the same authority the word “adjacent” is defined as “lying near, close or contiguous, bordering on”. One of the synonyms noted is “adjoining” which word has been defined in Olmsted v. Schrembs, 30 Oh Ap 430, as “meaning premises which touch and are in contact with premises involved * * With this definition in mind as well as the legal principle that when a restriction in a .conveyance is doubtful all doubts should be resolved in favor of the free use thereof for lawful purposes by the owner of the fee, we are compelled to say that the restrictions contained in paragraph 3 of each deed is not for the benefit of all the lot owners in the subdivision, but is only for the benefit of the adjacent lot owners.

We shall next consider whether there was a general plan for the entire addition, and if so, whether the defendant had notice of the same. We find that the planners of the addition did follow a general plan, the same restrictions appearing in the conveyances to all the lots in the addition with the exception of lots 1, 2 and 3. Since the plat showed that there are approximately 287 lots in the addition, we think the failure to include the restriction in the three aforesaid lots cannot be said to destroy the general plan'of the subdivision. This general plan, however, was not noted upon the recorded plat. Had it been, notice thereof would have been imputed to each lot purchaser and he would have been bound thereby. The defendant would also have had notice of the general plan if the deed had provided that the restrictions were for the benefit of all the other lot owners. Kiley v. Hall, 96 Oh St 374. But such a provision is not found in any of the deeds. The plaintiffs, therefore, cannot claim equitable relief under the general plan theory because of lack of notice of the same to the defendant. The plaintiff has attempted to distinguish the case at bar from Kiley v. Hall and Lopartkovich v. Rieger, supra, upon the theory that the grantor covenanted and agreed to bind “itself, its successors and assigns” to the same conditions. Had it done so, the plaintiff would be entitled to the relief sought. Wallace v. Clifton Land Co., 92 Oh St 349. But an examination of the covenants fails to support the plaintiff in this proposition, the covenants providing, “* * * and the said grantee, his heirs and assigns as part of the consideration herein, doth hereby agree and covenant with the said grantor, its successors and assigns, for the faithful performance of the following conditions * * *.” These restrictions are clearly unilateral and not bilateral as urged by the plaintiffs. The plotter in no way bound itself to impose the restrictions upon any of the lots it might later convey. This it was not compelled to do.

“If he does not bind himself, then his grantee, having no right of action against him, cannot pursue any other grantee to whom he may subsequently convey the whole or part of the remaining lands.” 21 A. L. R. 1303.

Since the major premise of the plaintiff’s argument is not supported by the evidence, that the covenant was mutual, his case must also fail. All of the authorities cited on this question by the plaintiff are based upon this premise.

Our judgment is in favor of the defendant.

HORNBECK and WISEMAN, JJ, concur.

ON APPLICATION FOR REHEARING

No. 1959. Decided July 7, 1949.

By THE COURT:

The application for rehearing will be denied.

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

ON MOTION FOR NEW TRIAL

No. 1959. Decided September 8, 1949.

By THE COURT:

The motion for new trial is overruled.

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


source: Caselaw Access Project

author: By PHILLIPS, J.

license: Public Domain

text:
    LEWIS, Plaintiff-Appellant, v. KOCIS, Defendant-Appellee.
    Ohio Appeals, Seventh District, Lake County.
    No. 462.
    Decided 1949.

      Vann & Nelson, Cleveland, for plaintiff-appellant.
    Giblin & Giblin, Painesville, for defendant-appellee.
   OPINION

By PHILLIPS, J.

Plaintiff appeals to us on questions of law from a judgment of the court of common pleas entered upon a directed jury verdict for defendant in his action filed in that court to recover damages from defendant for malicious prosecution.

Under separate cover counsel for plaintiff filed six assigned grounds of error, some of which are identical with and some of which differ from those incorporated in their brief. We will dispose of the assigned grounds of error filed under the formal separate cover entitled “assignments of error” and also those incorporated in their brief.

Plaintiff, a minor, and Philips Jackson, colored boys, were charged by affidavit sworn to by defendant with armed robbery of defendant on the morning of April 18, 1946, in her place of business situated in Lake County, Ohio. That charge subsequently was dismissed.

Thereafter plaintiff through his mother and next friend filed in the court of common pleas the action to which reference has been made, and from the judgment entered in that action plaintiff appealed to this court as stated.

Defendant called by plaintiff for cross-examination testified that between midnight on the 17th day of April, 1-946, and 12:80 o’clock on the morning of April 18, 1946, defendant and a waitress employed by her were in her place of business situated in Lake County, Ohio, “when two colored boys, one was brown, dark brown”, whom she said was plaintiff and whom she described as being six feet tall, weighing “175, 180” pounds, and wearing a brown hat and “tweedish (over) coat-brown tweed”, and the “other (who) was fair complected”, whom she described as smaller than plaintiff and‘carrying a gun, entered and announced that “this is a stick up”; that plaintiff went behind the bar and took the money from the cash register; that defendant notified the sheriff of Lake County, and the next day received a call from his office; that at that time she identified plaintiff at the county jail of Lake County, where the evidence disclosed he and Philip Jackson, who were arrested for speeding near Mentor, Ohio, were detained, as the prosecuting attorney of Lake County remembered, for “driving in a stolen car or a car that had been reported stolen”; that she had a conversation with the prosecuting attorney, who thereafter dictated the affidavit she signed and advised her “that the facts she had given” him “were sufficient cause for the arrest of these men”, and that the prosecuting attorney asked her to sign the affidavit, which she signed before the Clerk of the Municipal Court of the City of Painesville, where she appeared as a witness as instructed on April 25, 1946, the date set for his preliminary hearing.

The prosecuting attorney testified that before any warrant was issued “she (defendant) told me in full how they came in, the time, described them to me, and at that time told me the amount of money, the direction they had come from, she remembered it, and the direction they left”, and to whom she made, as the evidence discloses, a ‘“full disclosure of everything”.

The prosecutor testified further that “as you know in a criminal case, the State has to prove its case beyond a reasonable doubt. On the morning of the preliminary hearing, as I recall the matter, I talked to some witnesses of these boys, who claimed that they were somewhere else at the time it happened, and it was my opinion then that where the law requires proof beyond a reasonable doubt that probably we didn’t have any evidence to sustain a conviction of the boys”, and accordingly he caused the charge lodged by defendant against plaintiff to be dismissed, which if tried it is conceivable under the evidence we reviewed possibly would have resulted in a conviction.

In any event the charge lodged by defendant against plaintiff was not heard upon its merits, and did not result in an acquittal, and was dismissed without any act of defendant.

Such briefly is the uncontradicted evidence upon which the trial judge directed the jury to return a verdict for the defendant on the ground “that reasonable minds cannot differ, that there was a full disclosure made by the defendant to Mr. Donaldson, the prosecuting attorney, and that she acted on that advice, and that.there was therefore probable cause for the institution of this prosecution which would defeat the plaintiff’s action in this case.”

See Stork v. Evert, 47 Oh Ap 256, with reference to advice of counsel being a defense in an action for malicious prosecution; and Harig v. Lepasky, 37 Abs 332, concerning whether reasonable minds can differ as to whether defendant acted on the advice of the prosecuting attorney; and Frost v. O’Kross, 22 Oh Ap 176, as to defendant’s liability where the prosecuting attorney asked her to or suggested that she sign such affidavit, and as to whether the question of probable cause is one for the trial judge or the jury; and Chapman v. Anderson, 3 Fed. (2nd) 336, syllabus 6 and 7, as to whether defendant had probable cause for signing such affidavit.

We have carefully considered all of the evidence submitted to us for review, and conclude that the trial judge did not err to plaintiff’s prejudice in sustaining defendant’s motion for a verdict directed in her favor made “at the conclusion of all the evidence”.

At the close of defendant’s testimony the trial judge said “I take it there are further motions to offer at this time”, which counsel for plaintiff assigned as a ground of error “because the court placed itself in the position of counsel”, but counsel do not call our attention to how plaintiff was prejudiced thereby. Upon first impression we can not see how plaintiff was prejudiced by that remark, and since counsel for plaintiff is not sufficiently interested in endeavoring to convince us as to how plaintiff was so prejudiced, by arguing that assigned ground of error, we assume they do not urge it in good faith, and therefore we do not pass upon it.

We have read the evidence submitted to us carefully, and cannot arrive at the conclusion that “the verdict is not sustained by sufficient evidence or contrary to law”; and accordingly cannot say that “the court erred in overruling plaintiff’s motion for a new trial, filed by the plaintiff in error and to which exceptions were duly noted at the time” (sic).

Having reached this conclusion it is not necessary for us to pass upon the contention that since plaintiff for the first time alleged malicious prosecution in his amended petition filed after the one year limitation for filing such an action had expired, his right to file such an action was barred notwithstanding his original action for false arrest and imprisonment had been filed seasonably.

Counsel for plaintiff has failed to call our attention to the respects in which “the court permitted counsel for defendant to ask his own witness leading questions which were objected to by counsel for plaintiff, that the court overruled said objection and to which exceptions were duly noted at the time”; the instances in which the court sustained an objection to a question asked by plaintiff of one of his witnesses at-, tempting to show damages sustained by reason of the acts of the defendant, Mary Kocis; and “other errors of law occurred at the trial of said cause prejudicial to the rights of plaintiff in error by which plaintiff in error was prevented from having a fair trial and excepted to by plaintiff in error” (sic) as alleged as grounds of error, and to comply in respect thereto with the provisions of Rule VII of this court that their briefs “shall contain a statement of the questions presented and a succinct statement of so much of the case as is necessary to show how the question arose, together with a statement of the authorities relied upon.” Accordingly we will not pass upon these assigned grounds of error.

The judgment of the court of common pleas is affirmed.

CARTER, PJ, NICHOLS, J, concur in judgment.


author: By WATTERS, J.

text:
    COMMERCIAL SAVINGS AND TRUST CO., Plaintiff, v. WOLFE et, Defendants.
    Common Pleas Court, Summit County.
    No. 49007.
    Decided June 9, 1949.
    Frank Levin, Cleveland, for assignee-plaintiff.
    Harold Infield, Akron, for defendant.
   OPINION

By WATTERS, J.

In this action, in March, 1924, the Commercial Savings and Trust Company received a personal ‘judgment against the defendants, Jefferson J. Wolfe and his wife, Nona Wolfe, upon real estate mortgage foreclosure. The property was later sold at Sheriff’s sale and the confirmation was filed April 26, 1924, showing the selling price as $3,335.00. This was distributed as follows: Taxes, $233.81, costs, $93.87, the balance to the plaintiff, the Commercial Bank, on its claim or judgment.

The bank went into liquidating, and the present plaintiff, Jacob Levin, purchased and became the assignee of the deficiency. He filed a motion to revive the judgment as to Nona Wolfe, March 3, 1948, at which time a conditional order of revival was entered in this court, and a notice to show cause issued against Nona Wolfe.

Thereupon Nona Wolfe, defendant, filed a motion, March 17, 1948, asking that the motion to revive the judgment be dismissed, and that further execution in the case be permanently enjoined under §11663-1 GC on the ground that said deficiency was some twenty-four years old; that defendant had occupied the property mortgaged as a homestead, and no steps had been taken to collect the judgment all those years.

The Court made the following Finding filed May 26, 1948, which is self explanatory:

“This matter comes on upon the motion of the plaintiff’s assignee to revive the dormant judgment taken twenty-four years ago against the defendant, Nona Wolfe. The judgment was also taken against her husband, but no revivor is asked against him.

The defendant, Nona Wolfe, counters with a motion to dismiss said motion to revive, and asks that further execution be enjoined, on the ground that this matter comes within the limitation of §11663-1 GC as amended in 1939, in that the judgment is a foreclosure deficiency judgment on' a mortgage covering homestead property. The matter was submitted to the court on affidavit, oral argument and briefs of the defendant.

I think the better practice is for the court to revive the judgment. Then the defendant can wait until an attempt is made to collect the judgment, or defendant can any time move to have its enforcement enjoined. It looks to me that in the final analysis, if defendant’s affidavit and claim is true, the plaintiff could never enforce the judgment because of §11663-1 GC (1939). Exceptions.”

Thereupon, on June 28, 1948, this court entered judgment on said finding as follows:

“On motion of Jacob Levin, assignee of the Commercial Bank and Trust Company of Akron, Ohio, and it appearing to the court that the conditional order herein made has been served on the said Nona Wolfe as directed, and no good and sufficient reason being shown why this action should not be revived in her name, it is ordered that this judgment stand revived in the name of Nona Wolfe as defendant in the amount of $1928.20 with interest at seven per cent from May 15, 1924.

The motion of the defendant to enjoin any further proceedings on the judgment as revived and to have said judgment declared unenforcible or void under §11663-1 GC is continued for further disposition by the court not later than ninety (90) days from date.”

The matter is now before the court on defendant, Nona Wolfe’s motion mentioned in the finding and journal entry above to enjoin any further procedure on the deficiency judgment claimed unenforcible under §11663-1 GC. This motion was supported by the affidavit of Mrs. Wolfe dated March 31, 1948, and filed May 24, 1948, setting up the occupancy of the premises as a homestead, etc. In addition the court heard evidence of various witnesses, including Nona Wolfe.

The assignee, Mr. Levin, questioned the jurisdiction of the court to hear the- matter, citing several decisions of Judge Fritch, formerly of this court, to the effect that the question sought to be raised by Mrs. Wolfe in re §11663-1 GC, could only be raised by petition for declaratory judgment or upon petition in the same action upon which service was had, etc.

This court holds that even though Julge Fritch may have been correct in his holdings, that they are not here applicable because of Nona Wolfe’s procedure in raising the matter by motion in this suit against the assignees to revive the judgment, and because all parties were in court, and the court entered the journal entry continuing this branch of the case for further consideration.

I think the parties are all before the court upon the question before us.

Furthermore I think Judge Fritch’s ruling is too strained in view of the liberality shown by the Supreme Court in 151 Oh St, 212, discussed hereinafter. In our case the parties were fully before the court in the revivor matter, and it would have been to no avail to cause Mrs. Wolfe to file a separate suit in declaratory judgment, or to make her file a petition in this action, and get service, etc.

In any event, even if this court is incorrect on that point,— and I do not believe I am, — the judgment is clearly unenforcible.

The property in question is a dwelling house at 521 Gridley Avenue, Akron, Ohio, a strictly residential property, single family building. Mrs. Nona Wolfe and her husband and family moved into it is a home site or homestead in May, 1920. The mortgage was executed in May, 1920. It was so occupied originally as a homestead, and for some seven years. The family moved out in April, 1927. The property was deeded by Mr. and Mrs. Wolfe in March, 1921, to Ruth Scott, by warranty deed recorded in Volume 849 at page 336, Summit County Records. The grantee, Ruth Scott, in said deed, assumed and agreed to pay the taxes, but not the mortgage, although the latter was a first lien on the premises next to taxes.

Apparently the grantee, Scott, paid on it for some time, as the petition in foreclosure shows various payments up to December of 1923, the foreclosure being commenced January 19, 1924.

The evidence also shows that the Wolfes remained in the premises until April, 1927, paying the grantee, Scott, rent after the deed, and later the receiver appointed in the foreclosure action.

In 151 Oh St, 212, Kocsorak v. Trust Company (See Ohio Bar. 3-28-49) plaintiff owned real property and resided with his family in a single family dwelling located thereon. After moving away and never again occupying it as a homestead or homesite, he mortgaged it to the Cleveland Trust Company. Thereafter it was sold to third persons who assumed the mortgage, and they resided in the house for sixteen years until foreclosure. Judgment against the plaintiff and assignees resulted in a deficiency judgment. Held that the judgment was unenforcible under §11663-1 GC.

The Supreme Court held for plaintiff even though the plaintiff did not occupy it as a homestead, etc. when plaintiff executed the mortgage. However, the grantees of plaintiff assumed and agreed to pay the mortgage, and did occupy it as a homestead up to the time of the foreclosure and deficiency judgment. The court there said “The judgment in the instant case is unenforcible as to the deficiency for the reason that the statute is directed toward the judgment rather than the persons connected with it.”

See also 81 Oh Ap, 511.

The assignee claims part of his judgment is for taxes paid upon failure of the defendant or other owners to pay them. The petition for foreclosure is not so drawn, and even if it were, the judgment is a deficiency judgment growing out of a mortgage covering homestead property, and cannot be divided in any manner.

Under this evidence, and in view of 151 Oh St 212 cited and discussed above, this deficiency judgment is unenforcible, and the court enjoins any proceedings to collect or enforce it.


text:
    BURNETT et, Plaintiffs-Appellants, v. WOOSTER et, Defendants-Appellees.
    Ohio Appeals, Seventh District, Lake County.
    No. 466.
    Decided 1949.
    T. R. Zettelmeyer, Willoughby, for plaintiffs-appellants.
    A. C. Knight, Willoughby, Lester W. Donaldson, Painesville, for defendants-appellees.
   OPINION

By PHILLIPS, J.

Plaintiffs appealed to this' court on questions of law “from the (following) final order and judgment entered” in the Court of Common Pleas on the sixth day of August 1948:—

“1948 Aug. 6. This day being a day in the April Term of Court, the following proceedings' were had herein, to-wit:

“This cause came on to be heard upon the demurrer of the defendants to the plaintiffs’ amended petition upon the ground that said amended petition does not state facts which show a cause of action.

“Upon due consideration of the arguments of counsel and the briefs subsequently filed by them, the court finds said demurrer well taken, and, therefore, sustains the same. And therefore the plaintiffs, not asking to plead further, it is the final order of this court that the defendants go hence without day, and that the costs be assessed against the plaintiffs.”

On August 12, 1948, plaintiffs filed in the court of appeals a paper writing entitled “motion” which reads:—

“Now come the appellants through their attorney, T. R. Zettelmeyer, and respectfully move this Court for an order restraining the Board of Township Trustees of Willoughby Township, Lake County, Ohio from holding a special election on the 14th day of September 1948, or any other date, until Case No. 466, now pending in the Court of Appeals, has been heard by the Court of Appeals of the Seventh Judicial District and the Court’s final order entered, and should the Court find the Township Trustees of Willoughby Township, Ohio have neglected and failed to comply with the Statutes relative to the Township Zoning within the Township of Willoughby, Lake County, Ohio, then the restraining order be made permanent.

“The basis for this request is set forth in the brief accompanying this motion. * * *

“In support of the Motion for a Restraining Order, appellants state that the Township Trustees of Willoughby Township, Ohio, have failed to comply with §§3180-32 and 3180-37 GC.

“The township Trustees have further failed to give to the Township Board of Zoning Appeals the powers authorized under §3180-38 GC and the Township Board of Zoning Appeals has failed to organize, adopt rules, hold meetings, and keep minutes and records of appeals filed with such Board as provided for in §3180-39 GC; and has failed to hear the appeal filed by the appellant, John Burnett, on the 22nd day of May 1948; and has failed to make an order, and such order, if adversely affecting the appellants, could have been appealed to the Court of -Common Pleas, Lake County, Ohio.

“The appellants further say that under §3180-38 GC, they have attempted to seek relief in the Court of Common Pleas of Lake County, Ohio, and that their Petition was demurred to by the Township Trustees; that said matter is now before the Court of Appeals, the same being Case No. 466.

“The appellants further say that should an election be held on the 14th day of September 1948 before final determination of this cause by the Court of Appeals, and the ruling of the Court of Appeals should be in favor of the appellants, the election would be a nullity and of no force and effect.

“Appellants further say that should the Township Trustees be permitted to hold the election on the 14th day of September 1948, or at any time before a final hearing of Case No. 466, in the Court of Appeals of Lake County, Ohio, these appellants will be denied their rights" under the Statutes of the State of Ohio and said appellants will suffer irreparable damage; and the appellants having no adequate remedy at law available to them, respectfully ask that this Court of Appeals grant an order restraining the Township Trustees of Willoughby Township, Ohio from holding the election on September 14, 1948, or at any other time, until Cause No. 466 in the Court of Appeals, Lake County, Ohio, is finally determined by this Court. All of which is respectfully submitted.”

Plaintiffs’ motion was sustained and until further order of this court defendants were restrained from holding the election to which reference is made in that motion. Subsequently the foregoing entry was vacated after hearing of the case upon its merits.

Plaintiffs alleged in their amended petition inter alia that they are residents of the Township of Willoughby, Lake County, Ohio, and:—

“1. That the Zoning Commission in violation of §3180-29 GC have failed to adopt rules for the transaction of its business and have failed to keep a record of its actions and determinations.

“2. That the Township Trustees of Willoughby Township Ohio on May 6th, 1948 held a public hearing at Willoughby Union High School on the proposed zoning resolution without giving the thirty days’ notice of the time and place of hearing by causing said notice of such hearing to be published in a newspaper of general circulation in the township in violation of §3180-32 GC.

“3. That on the 22nd day of May 1948 a notice of appeal was filed with the township Zoning Commission addressed to its Chairman, Clarence Bladwin, and a notice of appeal to Fred Goodrich, Chairman of the Board of Township Trustees, appealing from the determination made by the township Zoning Commission and the Township Trustees at their meeting on May 13, 1948. Service of these notices was made on Mrs. Ethel Wooster, Clerk of the Board of Township Trustees and the Township Zoning Commission. A copy of said notice of appeal was served by registered mail upon Mr. Donald Prindle, chairman of the Township Board of Zoning Appeals. Said appeal was filed within the statutory period for the filing of such appeal and that no action has been taken.”

As applicable §3180-36 GC provides:—

“* * * Any person adversely affected by an order of the board' of township trustees adopting, amending or rescinding a regulation under the authority of this act may appeal to the court of common pleas of the county in which such township is located on the ground that such board of township trustees failed to comply with the law in adopting, amending, rescinding, publishing or distributing said regulation, or that said regulation as adopted or amended by the board of township trustees is unreasonable or unlawful or that the revision of the regulation was unreasonable or unlawful.”

Carefully considering the quoted allegations of plaintiffs’ amended petition together with the other allegations thereof we believe that considering that pleading in its entirety it does not state a cause of action against defendants.

In our opinion plaintiffs Have an adequate remedy under the provisions of §3180-36 GC, by appeal as provided therein, which should have been pursued in the place of the original action in injunction filed in that court.

The judgment of the court of common pleas is affirmed.

CARTER, PJ, concurs..

NICHOLS, J, concurs in the judgment.


author: By THE COURT:

text:
    ROGERS, Plaintiff-Appellee, v. ROGERS, Defendant-Appellant.
    Ohio Appeals, Second District, Fayette County.
    No. 263.
    Decided May 27, 1949.
    Clarke Wickensimer, Washington C. H., for plaintiff-appellee.
    Irvin Carl Delscamp, Dayton, for defendant-appellant.
   OPINION

By THE COURT:

Submitted on motion of appellee to dismiss the appeal, first, for the reason that no motion for new trial has been filed in the trial court, and second, for failure of appellant to observe Rule VII of the Rules of Practice of this court that briefs for the appellant in appeals on questions of law shall be filed within 50 days after the filing of the notice of appeal.

The first branch of the motion is untimely because we can not say at this juncture of the proceedings that the appellant would assert in his assignments of error any ground as to which a motion for new trial would be required as a basis for review.

The second branch of the motion is to the effect that appellant had employed an attorney who perfected his notice of appeal in the cause but thereafter failed to conform to the requirements of Rule VII. Appellant’s assignments of error and briefs were due under Rule VII prior to April'll, 1949. Affiant further says that “The first notice he had that his attorney had abandoned this case was after the 11th day of April, 1949, when he received from the attorney for plaintiffappellee by registered mail a motion filed in this case, asking for dismissal of the proceedings herein * *

On the 25th of March, 1949, a member of this Court had a letter from Winston W. Hill, at that time the attorney for appellant, the subject matter of which was brought to the attention of the Court, in which Mr. Hill represented the difficulty which he had sustained in carrying on in his professional employment by appellant. Mr. Hill was desirous of rendering the proper professional service to appellant and called the Court’s attention to some of the developments in the case. This letter was written on March 25, 1949, and the part pertinent to this motion reads:

“I heard of his (appellant’s) visit and told him that I would not represent him any further in the case and told him at the time that he had no grounds on which to appeal this case. However, he insisted and stated that he would go to his attorney in Dayton, who had previously filed a $10,000.00 damage suit against his son-in-law for alienation of affections, and would secure his services. Later, before the time limit on filing the notice of appeal had run, the defendant came into my office and stated that, he had not done anything about his previous assertion and at that time I told him that I would file the notice of appeal but that I was through and that he had to get other counsel and he stated that he would get his attorney in Dayton. I have heard nothing from him since that time and the time limit for filing briefs was up on the 18th day of March, 1949.”

It will be noted that this letter was written more than twenty days prior to April 11, 1949, the date which is fixed by affiant as the time when he first learned of Mr. Hill’s abandonment of his case. It will also be noted that the letter is specific to the effect that before the time limit for filing the notice of appeal had elapsed appellant was given notice that Mr. Hill would no longer represent him.

The letter from Mr. Hill written under circumstances therein set forth and with the purpose to be entirely ethical with his client, carries conviction with this Court. Certainly no ulterior purpose appears for the writing of the letter by Mr. Hill.

In the situation thus developed we find no sufficient reason for granting an extender of time within which appellant may be permitted to file assignments of error and brief in this cause. The statements in the affidavit of appellant in the light of the letter of Mr. Hill, which no doubt could and would be supported by his affidavit or sworn testimony if necessary, present a very serious question as to the .status of appellant on this motion.

It might further be said that although we overruled the first branch of the motion because technically it is not appropriate at this time, it is probable that the only possible assignment of error that could be urged would be insufficiency of the evidence to support the judgment. This could not be urged without the observance of the formality of a motion for a new trial.

Copies of Mr. Hill’s letter to the court and the reply will be mailed to counsel for appellant.

The first branch of the motion will be overruled. The second branch will be sustained and the appeal will be dismissed.

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


author: By HILDEBRANT, J.:

text:
    STATE, Plaintiff-Appellee, v. SHRYOCK, Defendant-Appellant.
    Ohio Appeals, First District, Hamilton County.
    No. 7114.
    Decided July 11, 1949.
    Carson Hoy, Harry S. Schwartz, Cincinnati, for plaintiffappellee.
    Robert E. Brooks, Louis C. Capelle, Robert L. Young, Cincinnati, for defendant-appellant.
   OPINION

By HILDEBRANT, J.:

On his plea of guilty to the felony of stabbing to wound, defendant-appellant received the following sentence:

“It is therefore Ordered by the Court that sentence herein be deferred and the Defendant, Leon Shryock placed on probation for a period of Five years.

“It is further ordered by the Court that the Defendant herein pay the costs of this Prosecution, and to make restitution.”

Thereafter, defendant was convicted of a charge of abuse of family and drunkenness and received a workhouse sentence and fine. This was reported to the trial court as a violation of the former probation, and, after a full judicial inquiry arid hearing upon the reported violation, the evidence, and the statements of the defendant, the court revoked the previous probation and sentenced the defendant to the penitentiary.

Defendant-appellant contends the court had no power to revoke the probation, except for a violation of the express conditions contained in the journal entry in this case — “pay the costs of this Prosecution and to make restitution.”

The power of the court to grant probation is statutory and regulated by §13452-1, et seq, GC.

In setting forth the procedure for probation and providing for a release from custody on probation, §13452-4 GC, provides that the probationer “shall continue under the control and supervision of the county department of probation or the state department of public welfare, as the case may be, to the extent required by law, the terms and conditions of the order of probation, and the rules and regulations governing said department of probation.”

Sec. 13452-5 GC, provides if the probationer is confined in any institution for the commission of any offense whatsoever, the probation period shall cease to run until such time as he is brought before the court for its further action under this Act.

Sec. 13452-6 GC, provides for the arrest, without warrant, of the defendant by any probation officer during the period of probation, as made in this case.

It was held in State of Ohio v. Skypeck, 77 Oh Ap, 225, in the syllabus:

“The right of a defendant, who has been convicted of, or has plead guilty to a criminal offense, and who has been afforded probation as provided by §§13452-1 to 13452-11 GC, inclusive, to continue as a probationer, is within the sound discretion of the court.

“Before the court may terminate an order of probation and sentence the defendant upon such judgment or plea, the defendant is entitled to be heard upon a “judiciary inquiry” in open court on the question of whether he has failed to meet the conditions of the order of probation.”

When imposition of sentence is deferred and a defendant released from custody upon probation, the statutes regulating such procedure are as much a part of the terms and conditions of each probation as are any additional express conditions imposed by the court, deemed appropriate to the particular case.

The approved procedure having been followed here, and the conditions imposed by §13452-5 GC, being violated by the defendant-appellant, the court was clearly within its power in revoking the probation.

The judgment is affirmed.

ROSS, PJ, HILDEBRANT & MATTHEWS, JJ, concur in syllabus, opinion & judgment.


author: Per CURIAM:

text:
    OHIO SOCIETY OF PROFESSIONAL ENGINEERS et, Plaintiffs-Appellees, v. HULSLANDER et, Defendants-Appellants.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 21264.
    Decided September 26, 1949.
    Ira E. Arnold, H. R. Hawgood, Cleveland, for plaintiffsappellees.
    S. J. Blair, R. J. Newton, E. J. Kroek, Cleveland, for defendants-appellants.
   OPINION

Per CURIAM:

This is an appeal on questions of law from a judgment in a civil case wherein the defendant was found guilty of contempt of court for violation of an injunction issued at the instance of the plaintiffs.

The action originated in the common pieas court of Cuyahoga County on January 14, 1947, when a petition for injunction and equitable relief was filed by the Ohio Society of Professional Engineers, an Ohio corporation not for profit, and by William C. Hammerer, individually and in behalf of said Society, as parties plaintiff, against the defendant, Ray D. Hulslander and three other. defendants, praying for a permanent injunction under and by virtue of §1083-1 to 1083-26 GC, both inclusive, to enjoin the defendants from “practicing or offering to practice engineering within the State of Ohio, or using the word ‘engineer’ or any word of like import in connection with their name or their business.”

Thereafter, upon application of the plaintiffs, the court dismissed all defendants except the single defendant, Ray D. Hulslander, against whom the action then proceeded.

On November 12, 1947, a journal entry was signed by the trial court whereby the defendant, Ray D. Hulslander was “perpetually enjoined from practicing or offering to practice engineering either directly or indirectly, in the State of Ohio, or using the word “engineer” or any word or words of like import, in connection with or in reference to himself, unless and until he becomes registered by the Ohio State Board of Registration for Professional Engineers and Surveyors.”

He was further “perpetually enjoined from listing, publishing or advertising in any directory or any periodical, or from otherwise in any manner or form, either expressly or impliedly, advertising, publishing or representing that Ray D. Hulslander or any legal entity with which he may be associated, may engage in the practice of engineering in the State of Ohio.” No appeal was prosecuted from this decree.

Subsequently, on August 13, 1949, charges in contempt were filed by plaintiff against defendant, charging him with failure to comply with the injunctive order of the court in that he had published or caused to be published, in the June, 1948, issue of the telephone directory, the words “Aimes Engineering Company” in the alphabetical section thereof, and the same name in the classified section thereof under the headings “Engineers — Mechanical”—“Engineers—Structural.”

It was further alleged that said defendant was associated with Aimes Company Inc., and that as a result of said listings he violated the injunction issued on November 12, and was “in contempt thereof.”

On September 2, 1948, the defendant was tried upon said charges of contempt, found guilty, fined $500.00 and costs and sentenced to ten days in the county jail therefor.

There are four assignments of error as follows:

“1. In overruling motion of defendant, Ray D. Hulslander, for the dismissal of the contempt charges.

2. In overruling motion of defendant, Ray D. Hulslander, at the conclusion of plaintiffs’ evidence, for a judgment for defendant.

3. The final judgment and order are not sustained by sufficient evidence.

4. The final judgment and order are contrary to law.”

Insofar as is pertinent to this case, §1083-1 et seq, GC, under which the injunction was issued and the defendant later brought to trial on the charge of contempt, reads:

“Sec. 1083-1 GC Purposes of Act.

That in order to safeguard life, health and property any person practicing or offering to practice the professions of engineering * * * shall hereafter be required to submit evidence that he is qualified so to practice, and shall be registered as hereinafter provided; and it shall be unlawful for any person to practice or to offer to practice the professions of engineering * * * in this state, or to use in connection with his name or otherwise to assume, use or advertise any title or description tending to convey the impression that he is a professional engineer * * * unless such person has been duly registered or exempted under the provisions of this act.”

The terms “professional engineer” and “practice of professional engineering” are defined by the act as follows:

“Sec. 1083-2 GC. Definition of terms.

The term ‘professional engineer’ as used in this act shall mean a person who, by reason of his knowledge of mathematics, the physical sciences and the principles of engineering, acquired by professional education and practical experience, is qualified to engage in engineering practice as hereinafter defined.”

“The practice of ‘professional engineering’ within the meaning and intent of this act includes any professional service such as consultation, investigation, evaluation, planning, design or responsible supervision of construction or operation, in connection with any public or privately owned public utilities, structures, buildings, machines, equipment, processes, works or projects, wherein the public welfare or the safeguarding of life, public health or property is concerned or involved, when such professional service requires the application of engineering principles and data * * *.”

It will be observed from an examination of the foregoing provisions of the statute that the prime purpose of the act is to protect the public from the unauthorized practice of professional engineering as defined by the act. This purpose is clearly indicated in the first words of §1083-1 GC, and in the second paragraph of §1083-2 GC.

These sections differentiate between professional engineering therein intended to be regulated and the other fields of engineering not intended to be regulated and which by their very nature could not be the subject of regulation. It therefore follows that all engineering remains unaffected under the act except that which involves or concerns the safeguarding of life, public health or property. It should then be noted that after the act undertakes to regulate certain kinds of engineering involving public health, welfare and safety, it then provides for exemptions from the provisions of the act. These exemptions are set forth in §1083-20(g) GC, as follows:

“Sec. 1083-20 GC (Persons exempt from act). The following persons shall be exempt from the provisions of this act, to-wit * * * (g) Nothing in this act shall be construed as requiring registration for the purpose of practicing professional engineering or surveying by an individual, firm or corporation on property owned or leased by said individual, firm or corporation, unless the same involves the public safety or public health; or for the performance of engineering or surveying which relates solely to the design or fabrication of manufactured products.”

That the provisions of the act do not apply to those engaged in designing or fabricating manufactured products was recognized by the Attorney General of Ohio, the legal advisor of the State Board of Engineers and Surveyors, in an informal opinion (No. 199) dated May 2, 1947. He there stated in substance that engineering relating to the design and construction of all kinds of aircraft for every purpose, including commercial, military and experimental aviation, and the designing and construction of all devices, contrivances, and accessories pertaining to such aircraft including engines, motors and other machinery of every sort, while they would constitute the practice of professional engineering, obviously came within the exemption of §1083-20 (g) GC. This opinion was given in pursuance-of a request by the Secretary of State who had refused to accept for filing proposed Articles of Incorporation of a company which included in its Charter the purposes above described. This construction appears to us to carry the force of logic and reason.

Referring now to the original decree herein, there is no finding by the trial court that the defendant actually practiced “professional engineering” as defined by the statute. However, the defendant was enjoined from practicing or “offering to practice engineering” or from using the word “engineer” or any word or words of like import. Further the decree does not in specific terms enjoin the defendant from performing or offering to perform any of the particular services described in §1083-2 GC as the practice of “professional engineering.”

The decree uses only the term “engineering” which is a generic term covering many phases of human activity which does not come within the classification of “professional engineering” as defined by the statute.

Also, it is important to observe that in the publication of which complaint is made, defendant did not use the term “professional engineer” which is specifically prohibited by the statute. Consequently it cannot be said that the mere use of the generic term “engineer” would be, per se, a violation of the act. To warrant a finding of guilty it would be necessary to show by the requisite degree of proof that the defendant was actually engaging in the practice of “professionai enginering” or actually holding himself out as engaging in such practice as defined by the act.

In our opinion the injunctive decree could not, by its terms, rise higher than the act (§1083-1 et seq GC) from which the court derived its jurisdiction in the first instance. In other words, it is not within the province of the court to broaden or extend the meaning of “professional engineering” beyond the provisions of the definition of the term as set forth in the statute. Its provisions should therefore be construed to prohibit only those activities proscribed by the statute. Concerning this phase of the subject, the Supreme Court of Illinois, in the case of Krebs v. Thompson, 387 Ill 471, passing upon a statute similar to that under consideration herein, said in part:

“Where an act defines terms therein used, those terms must be construed according to the definition of the act and as the act to regulate professional engineering attempts to define the term ‘professional engineering’ by referring to other terms not defined and leaves to the examining committee provided in the act the power to determine its application, it is invalid as a delegation of legislative power.” (paragraph 4, syllabus)

And at page 477 the court say:

“It will be noted that the definition contained in Section 2 gives little insight into what activities are included in the act. Briefly stated, the term ‘professional engineering’ is there defined to mean any professional service wherein the public welfare or the safeguarding of health, life or property is concerned or involved, when such professional service requires the application of engineering principles and .data. When an act defines the terms therein used, those terms must be construed according to the definitions contained in the act. Smith v. Murphy 384 Ill. 34; Rozran v. Durkin, 381 Ill. 97.”

From an examination of the evidence as shown by the record, it appears that some time in December, 1947, after the issuance of the injunction, the defendant sought the advice of counsel who advised him as to his rights and liabilities under the injunctive decree and that he conformed to such advice.

The evidence further shows that the defendant was President of the Aimes Company Inc., and that the company for a period . of time built centrifugal casting machines; built permanent molds and did only the structural detailing of ship-loading towers all of which in our opinion comes within the exemptive provisions of §1083-20 GC.

Upon consideration of all the evidence, the members of this court are unanimously of the opinion that the evidence shows the business activities of the defendant related solely to the design or fabrication of manufactured products.

Construing the provisions of the injunction in the light of the act, it is our conclusion that there is no evidence showing that defendant violated the injunction and the finding and judgment below is therefore not supported by any evidence upon a material issue. The judgment therefore should be reversed and the decree for the defendant appellant.

Judgment reversed and decree for defendant appellant. Exceptions. Order see journal.

SKEEL, PJ, FESS, J, HURD, J, concur.


author: By LEACH. J. By LEACH, J. By GESSAMAN, J.

text:
    TENNEBAUM, Plaintiff, v. PENDERGAST, etc., Defendant.
    Common Pleas Court, Franklin County.
    No. 171026.
    Decided May 20, 1948.
    Abraham Gertner, Samuel L. Zuravsky,, Columbus, for plaintiff.
    Collis Gundy Lane, Columbus, for defendant.
   OPINION

By LEACH. J.

On demurrer of defendant to first cause of action

The cases, as both sides agree, are not in harmony as to the application of the doctrine of “res ipsa loquitur” to cases of this kind.

On thorough consideration the court is of opinion that the better and more logical rule is as stated in the following two cases:

“1. The rule ‘res ipsa loquitur’ applies in case of the explosion of a bottle of highly charged beverage, to the injury of a bystander, where the bottle is shown to have been transported and handled in the usual course of business with reasonable and ordinary care.

2. A petition for damages for injuries caused by the explosion of a bottle of liquid put up by defendant, which charges general negligence, and states that the facts and circumstances concerning ^ the manufacture of the bottle and contents are exclusively'within the knowledge of defendants, is sufficient.

3. Absence of contractual relations between one bottling a beverage for sale and a bystander injured by its explosion after it had reached the market is immaterial in an action based on tort to recover for the resulting injuries.” Stolle v. Anheuser-Busch, Missouri Supreme Court, 307 Mo. 520; 271 S. W. 497; 39 A. L. R. 1001.

“2. Res ipsa loquitur is a rule of evidence whereby negligence of the alleged wrongdoer may be inferred from the mere fact that the accident happened, provided the character of the accident and the circumstances attending it lead reasonably to the belief that, in the absence of negligence, it would not have occurred, and the thing which caused the injury is shown to have been under the management and control of the alleged wrongdoer.

3. The doctrine of res ipsa loquitur is applicable in cases based on the alleged negligence of a manufacturer of carbonated beverages toward one injured by the explosion of a bottle, if the plaintiff can show that the bottle was handled with ordinary care by all persons touching it after it left the manufacturer’s hands and that its condition had undergone no change.” Honea v. Coca Cola Bottling Co; Texas Supreme Court — 160 A. L. R. 1445; 2nd & third syllabi.

In the instant case in addition to pleading the happening of the explosion it is pleaded that “the manufacture, distribution and selection of the contents and the bottle which exploded were under the exclusive control of defendant.” This takes the bottle to the possessiion of the retailer — there are no facts pleaded, however, which show that thereafter, said bottle was handled with ordinary care by the retailer and by the purchaser, the plaintiiff, after his purchase. Before the doctrine of res ipsa loquitur can be invoked and before a cause of action can be held to have been stated, the court is of the opinion that this gap should be closed by proper averments in the petition — for as it stands now" almost any treatment or mistreatment might have been given to the bottle, during the period of this hiatus, and before and up to the time of the explosion.

For this reason,

Demurrer Sustained.

On demurrer to second cause of action

Here again there is a conflict of authority. While this court would not go so far as to hold that there is an implied warranty as to containers of all goods sold and would confine such warranty to the goods alone, in some cases, yet where, as here the thing purchased is a bottle of Royal Crown Cola — a soft drink or beverage the consuming or drinking of which drink is by common knowledge ordinarily from the bottle itself, the court is of opinion that the purchaser’s use of both bottle and the liquid therein contained are so closely associated and related that he cannot ordinarily consume the one without at the same time handling and using the other. It is common knowledge that the drink is kept in the bottle till the purchaser wishes to consume the liquid. The bottle and the contemplated use thereof is much more closely related to the contents than, for instance a crate and oranges therein contained.

The court is therefore in agreement with the cases of Cooper v. Newman, 11 N. Y. S. 2nd 319 and Naumann v. Wehl Brewing Co., 127 Conn. 44, 15 A 2nd 181 as to the applicability of the doctrine of implied warranty.

On the matter of pleading however, the court is of opinion that the doctrine can not be invoked if there was anything in the handling of the bottle after it was delivered to the retailer which could reasonably be the proximate cause of the explosion — that the same gap or hiatus in the pleading of the second cause of action, exists, as is pointed out with reference to the pleading of the first cause of action, and generally for the same reasons. Demurrer to second cause of action sustained.

Exceptions — Leave to file second amended petition within rule.

ON REHEARING OF DEMURRERS OF DEFENDANT TO PLAINTIFF’S AMENDED PETITION

No. 171026. Decided September 15, 1948.

OPINION

By LEACH, J.

On the question of the application of the doctrine of “res ipsa loquitur” the Court, in his original ruling, adopted the reasoning in Stolle v. Anheuser-Busch, Missouri Supreme Court, 307 Mo. 520; 271 S. W. 497, 39 A. L. R. 1001, and Honea v. Coca Cola Bottling Co. — Texas Supreme Court — 160 A. L. R. 1445, as the better and more logical rule.

It is urged, however, on rehearing, that said ruling is in conflict with the law as generally stated and recognized in Ohio since the exploding bottle was not at the time it exploded in the sole and exclusive control of defendant, but had passed out of possession, of defendant at the time of the explosion. Said rule so stated will be found in the fourth syllabus of the case of Sherlock v. The Strouss-Hirshberg Co., 132 Oh St 35; as follows:

“In order to invoke the rule of res ipsa loquitur in such case it is necessary that the party injured prove that the instrumentality causing the injury was at the time of the injury in the sole and exclusive control of the defendant.”

This was not a case invoking the explosion of a bottle containing a soft drink but rather involved a serving stool or foot stool over which a customer in a store stumbled while walking along one of the aisles of the store.

The syllabus, of course, is the law of that case, but it has been many times stated by the Supreme Court that such syllabus must be read and understood as applied to the facts of the case in which it is announced, and such application is in the syllabus itself limited to the facts of that case, because it includes the limiting language: “in such case” — thus referring, of course, to the facts of that case; and while it is probably generally true that in order to invoke the rule of res ipsa loquitur the instrumentality causing the injury must at the time of the injury be in the sole and exclusive control of the defendant, the reason therefor is so as to exclude someone else from being the author of or responsible for the proximate cause of the injury. The two cases upon which this Court relied are consistent with the principle and spirit of the rule, for they hold that before the doctrine of res ipsa loquitur can be so applied, the plaintiff must show “that the bottle was handled with ordinary care by all persons touching it after it left the manufacturer’s hands and that its condition had undergone no change” — thus negativing any claim that the cause of the explosion arose through any negligence in handling by the retail dealer or the plaintiff— and leaving the doctrine to be applied only if the reasonable inference is that the inherently dangerous condition in the bottle and/or its contents was created by and existed at the time it left the bottler’s hands. Such an application of the rule so safeguarded, does not do violence to, but rather is in accord with the rationale of the rule or principle on which the doctrine of res ipsa loquitur is founded. “The letter killeth but the spirit maketh alive.” If the manufacturer or bottler creates an inherently dangerous condition or confines in a bottle a beverage which may even in rare instances explode, should his ultimate customer bear without remedy an injury caused by such explosion, simply because the bottle has passed out of the bottler’s exclusive control, provided the proximate cause of the explosion is negatived as to all but the manufacturers or bottlers? We are in agreement with the cases we above cited on this point, nor do we believe that such ruling is not in harmony in principle, with any pronouncement of our Supreme Court to which our attention has been called.

Our attention is also called to the case of Farina v. First National Bank, 72 Oh Ap 109 — a revolving door case. This case, we think, recognizes the principle as we have here applied it — the syllabus states that the doctrine of “res ipsa loquitur cannot be invoked where the proven facts do not warrant an inference that the defendant was negligent in the selection and repair of such door and where at the time of the injury, such door was under control of the patron or was subject to the control of others than the defendant”. The implication arises from the words of the syllabus above emphasized by this writer.

No further authority was cited on the demurrer to the. second cause of action. The original ruling on these demurrers will be adhered to.

No. 171026. Decided February 14, 1949.

OPINION

By GESSAMAN, J.

I

On demurrer of defendant to the first cause of action of the Third Amended Petition on the ground that it does not state facts sufficient to constitute a cause of action.

We have examined the briefs filed, with particular emphasis having been placed upon the case of Curtis v. Akron Coca-Cola Bottling Co. No. 3118, Court of Appeals, Summit County. That case dealt with an allegation of negligence and the doctrine of res ipsa loquitur was “not urged by- the appellant.” (Quotation from the certified copy of the Opinion) Therefore the opinion, as approved by the Clerk of Courts of Summit County, does not touch upon the question here involved.

We have discussed this question with Judge Leach and have read his opinions on the demurrer to the amended petition (which raised the same question). We concur in those decisions.

Demurrer overruled.

II

On demurrer of defendant to the second cause of action in the Third Amended Petition for the reason that it does not state facts sufficient to constitute a cause of action.

It is alleged in the second cause of action that defendant sold the bottles to the plaintiff’s husband. The Curtis case, supra, is therefore not applicable since it was held in that case that the “record does not disclose a sale to plaintiff of the bottles containing said Coca-Cola.” That case further held that there was a failure of proof indicating lack of merchantability of the bottle.

Defendant further claims that since it now appears (in the third amended petition) that plaintiff did not buy the product (but that it was purchased by her husband) there is no privity of contract between the plaintiff and defendant and further that §8449 GC gives rise to a cause of action only in favor of the buyer.

Secs. 8395 and 8449 GC are parts of the Chapter on Sales. In that same chapter is §8456 GC which provides in part as follows:

“In this chapter, unless the context or subject matter otherwise requires—

‘Buyer * * * means a person who buys * * * or any legal successor of such person.’”

From this language it appears to be certain that the legislature did not intend to benefit the buyer only, but also his successor in interest. Of course, it might be argued that the wife is not the successor in interest, but we believe that the answer would be that although there had been no sale from husband to wife, of course, there at least could be a gift by implication, and that such gift would be within the contemplation of the parties at the time of the sale.

Furthermore, there is a striking analogy in the case of the sale of unwholesome foods to that of breach of warranty as here involved and in the case of Rubbo v. The Hughes Provision Co. 138 Oh St 178, the Supreme Court held that

“2. A cause of action arises in favor of an injured party against one who sells provisions in violation of §12760 GC, where such sale is made to a husband who takes the provisions home for preparation and cooking and a member of his family suffers injury * *

We have examined several cases but have found none exactly in point and none have been cited to the court. However, for the reasons given the demurrer is overruled.


text:
    BURKLE, Plaintiff-Appellant, v. BURKLE, Defendant-Appellee.
    Ohio Appeals, Seventh District, Belmont County.
    No. 834.
    Decided 1949.
    Esther F. Pinsky, A. G. Lancione, Bellaire, for plaintiff-appellant.
    James & Jones, Bridgeport, for defendant-appellee.
   OPINION

By PHILLIPS, J.

Plaintiff appealed on questions of law and fact from the following judgment of the court of common pleas entered in plaintiff’s action for divorce from defendant, in which he filed a cross petition seeking a divorce from plaintiff on the ground of gross neglect of duty:—

“Divorce decreed defendant on the grounds of gross neglect of duty. The plaintiff, by way of property settlement, is permitted to keep all of the property of defendant or joint property (except personal belongings of defendant, if any, now in plaintiff’s possession!, which includes a deposit account, as and for property settlement in full. The sum of $100.00 as additional counsel fees, is hereby awarded. The defendant to pay the costs.”

The case from which counsel for plaintiff attempts to appeal to this court is not properly appealable on questions of law and fact. Accordingly defendant’s motion to dismiss plaintiff’s appeal on questions of law and fact was sustained, and the words “and fact” were ordered stricken from the notice of appeal; and it appearing that a bill of exceptions was duly filed, obviating the necessity of this court granting counsel for plaintiff time within which to file-same, the appeal was retained, argued, submitted and will be determined as one on questions of law.

We find no paper writing among the papers submitted to us for review assigning grounds of error, but we learn from thé brief filed by plaintiff’s counsel, which we interpret as her assigned grounds of error, that she claims that “the judgment of the lower court was unsupported by the evidence and against the manifest weight of the evidence as a matter of law”.

The parties, who have no children, were married in 1935, and since then have-lived with plaintiff’s mother, who owns a dress shop in Bellaire, Ohio, where plaintiff before and continuously since marriage, has been employed, she testified for a time to earn her board and for a time an additional small salary, nothwithstanding the fact that even during service in the armed forces, during which time plaintiff received a government allowance, defendant was able and willing to support her in a home of their own; and notwithstanding an oral pre-nuptial agreement of the parties that plaintiff would continue to work for but two years after marriage, and thereafter would establish their own home and raise a family, which defendant periodically has evidenced a desire to do, but both of which plaintiff has refused to do, claiming that her mother needs her in the operation of her business, and that condition of her health makes it impossible for her to bear children safely, although she made no effort to ascertain definitely whether that was a fact.

Defendant frankly advised plaintiff before leaving her of his intentions to do so and assigned his reasons therefor, told her he was going to withdraw and did withdraw $325.00 from a saving account of $600.00 accumulated jointly by the parties, bade plaintiff goodbye, left the book evidencing such deposit and keys to the Dress Shop on plaintiff’s dresser, took some of his personal belongings and walked out leaving furniture and other personal property for plaintiff.

In the period intervening between separation on January 25, 1946, and the filing of plaintiff’s petition on June 5th of the same year plaintiff attempted a reconciliation during conferences with reference to which she stated she would go to China and live in a tent with him, would quit her job, would die for him, and do “anything” for him to save their marriage, but when as we believe from reading the bill of exceptions, which is not too clear nor too easily read nor understood, the reconciliation was consummated, or about to be consummated, she asked him to sign a document in which she repudiated and asked to be relieved of practically all such statements and promises.

There is evidence of statements made by plaintiff to defendant such as “there would probably be lots of young men who would probably envy you,” “Howard, haven’t I always been good to you, nice to you, what did you ever do for me?”; and to defendant’s mother, whom she rarely visited, such as. “oh, we have just got everything so nice, and I got him in good society and everything”; which together with the evidence of plaintiff’s unfriendly attitude toward defendant’s family leads us to believe that defendant might have been led to believe that plaintiff felt she was defendant’s superior socially; and evidence that plaintiff “shrug away” from defendant when he placed his arm about her shoulder, and that “it would have been better if he (defendant) had died overseas, wouldn’t come back at all, rather like that than go through this” (sic), “listen, you will have a nice reputation to keep, l do too. We have always been considered model persons in the community here, you are a pretty nice fellow”, which indicates that plaintiff was unresponsive to defendant’s caresses and from all of which defendant could conclude that plaintiff thought more of her social position than she did of her husband and their marriage, which resulted in each of the parties going separate ways, performing separate tasks and living in the house of another.

There is evidence that plaintiff showed a tendency toward hysteria; and there is no doubt in our minds but that due to his war service and long periods of confinement in military hospitals defendant developed a psychotic condition, and his inability to persuade plaintiff, to bear him children and lead a normal life with him frustrated him and aggravated that condition.

Plaintiff testified that defendant “carried me down the steps through all the years” until the night he told her he was going to separate from her.

As said by the trial judge “visualizing the situation from the evidence, this marriage was evidently doomed to failure almost from the beginning. Each party had their separate work; they were without a home of their own, and had no children and no prospects of any, due to the attitude of the plaintiff.”

As the result of reading the testimony and considering the evidence introduced in the court of common pleas, submitted to us for revivew, only briefly and sketchily outlined in this opinion, we can not and accordingly do not say that the trial judge, who occupied “the position of the jury in a divorce proceedings”, and whose duty it was to determine conflicts of evidence, which he did in defendant’s favor, erred to plaintiff’s prejudice in any of the respects urged. Our determination of the “issue” as stated by counsel for plaintiff “whether or not the court erred in granting the divorce to the defendant on grounds of gross neglect of duty” is that he did not; and though not urged nor even suggested we believe that there was no evidence of abuse of discretion by the trial judge.

We have referred to the evidence on the question of divorce to the limited extent observed because we believe it advisable to show the backgrounds of the respective parties and their marital troubles for the reason, among others, of showing that the judgment of the court of common pleas was not erroneous on the question of property settlement.

The judgment of the court of common pleas is affirmed.

CARTER, PJ, NICHOLS, J, concur in judgment.


text:
    THE UNIVIS LENS COMPANY, Plaintiff-Appellee, v. UNITED ELECTRICAL, RADIO & MACHINE WORKERS OF AMERICA, et al., Defendants-Appellants.
    Ohio Appeals, Second District, Montgomery County.
    Nos. 1994-2004.
    Decided June 8, 1949.
    Smith, Schnacke & Compton, Dayton, for plaintiff-appellee.
    Davis, Davis & Handelman, Cleveland, John H. Ober, Dayton, for defendants-appellants.
   OPINION

By THE COURT:

This is an appeal on questions of law from the Court of Common Pleas of Montgomery County, Ohio, finding eleven .separate defendants guilty of contempt of court for violation of an order relative to picketing during the strike at the Univis Lens Company plant in the City of Dayton, Ohio.

On June 10, 1948 the court issued an order restraining the defendants and other persons from interfering by violence, force, intimidation, threats, or in any manner whatsoever with any person or persons desiring- to enter or leave the plant; from aiding, abetting or assisting anyone in the commission of any or the acts herein enjoined; but provided that the defendants should be permitted to peacefully picket plaintiff’s plant with placards or banners if desired, but such pickets were not permitted to block or obstruct any gate or driveway leading to said plant or' interfere with or molest anyone desiring to enter or leave said plant or premises.

The defendants were charged with engaging in mass picketing on June 15, 1948; that the defendants and other persons blocked the entrance to said plant; that employees of said company who desired to enter for the purpose of working in said plant were blocked and prevented from entering by the pickets; that one. gate was padlocked by one of the defendants; that physical violence was used in preventing the entrance by said employees of said company.

After a prolonged hearing the appellants were found guilty of contempt of court and sentenced.

Appellants assign as error: that they were denied the right to a bill of particulars and other rights under the statutes of Ohio; for the erroneous admission or exclusion of evidence; that the sentences were severe, harsh and excessive; that the judgment is not sustained by sufficient evidence and is contrary to law; other errors appearing on the face of the record.

We have carefully read and scrutinized the entire record, which is very voluminous, and have given due consideration to all of the errors assigned by appellants. In our judgment the errors assigned are not supported by the record. There is ample evidence from which the trial court was justified in making a finding of guilt.

The factual situation requires only brief comment. There was sufficient evidence of a credible character which, if believed by the trial court, warranted a finding that all of the appellants, with the exception of the two named organizations and K. M. Kirkendall, engaged in physical violence while on picket duty. While the charge that Kaplan placed the padlock on the gate is disputed, it is clear that he and other pickets used physical force to prevent an employee of the company from cutting the chain and.padlock. True, the evidence does not show that K. M. Kirkendall was in the picket line or engaged in physical violence, but according to his own testimony he was responsible for the picket line. There is abundant evidence to support the charge that on the day in question the leaders of the labor group involved and those responsible for the picket line were determined not to let pass through the picket line any employees of the company who were called back, to work on the morning of the day in question. The evidence clearly shows that there were from 150 to 250 persons in the picket line and that the word was given by the leaders to close the picket line. The pickets moved in close formation on the sidewalk and in front of the entrances to the plant and in such close proximity to the entrances as to prevent any of the nonstriking employees from entering. All of the defendants, including the organizations and Kirkendall, were responsible for the mass picketing as charged.

There is sufficient evidence to support the judgment of the trial court that the appellants have violated the order and as a consequence were guilty of contempt of court.

The sentences of the court were reasonable under the circumstances. In sentencing the appellants the court considered the degree of guilt and imposed lighter sentences on some of the appellants than on others.

Because of the view we take of this case we are not required to determine the question whether all of the errors assigned are reviewable because of the failure of appellants to file a motion for new trial.

Finding no error in the record prejudicial to the rights of the appellants the judgment is affirmed.

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


text:
    THE UNIVIS LENS COMPANY, Plaintiff-Appellee, v. KAPLAN et, Defendants-Appellants.
    Ohio Appeals, Second District, Montgomery County.
    No. 2006-2010.
    Decided June 8, 1949.

      Smith, Schnacke & Compton, Dayton, for plaintiff-appellee.:
    Davis, Davis & Handelman, Cleveland, John H. Ober, Dayton, for defendants-appellants.
   OPINION

By THE COURT:

The defendants appeal from judgments of guilt of contempt charges against them and a fine as to each in the sum of $100.00. A restraining order in the original action was issued of date June 10, 1948, modified on June 16th, 1948 and again on July 28th, 1948. The charges against the defendants were that they engaged in picketing the plant and premises of the plaintiff company in association and concert with a large number of pickets greatly in excess of the number of six in disobedience of the modified orders of June 16th and July 28th, 1948.

Five errors are. assigned. First, that no proper charges were prepared and presented to defendants and that they were not given opportunity to adequately prepare a defense of their cases.

The affidavit upon which the citations were issued stated that the defendants had knowledge of the terms of the restraining orders which it was claimed they had violated. The final modified order was made on the 28th of July. The violation of the injunction was stated to have occurred on the 30th of July. The contempt proceedings were heard on August 2nd. Citation was served on each of the defendants on July 31st. All of the defendants were in court and all were represented by counsel when the charges came on to be heard. Upon suggestion of one of counsel for defendants that his presence was required at another hearing, the court granted continuance from the morning session until afternoon. To this action of the court no objection was interposed nor exception noted. No claim was made then or at the afternoon session that the defendants were not ready to proceed with the hearing. A number of witnesses were offered on behalf of the plaintiff and it rested. At the conclusion of plaintiff’s case, defendants offered no testimony. Counsel for defendants did not then claim that they were inconvenienced or not prepared to go forward because of the-inadequacy of time within which to prepare their defense.

Under the situation thus presented, it does not appear either that no proper charges were prepared and presented to the defendants or that they were denied opportunity to properly prepare their defense. However, if either claim is well made, the error may not be assigned in this court at this time because no proper basis was laid for consideration of such matter in this court. Sec. 11576-1 GC. Newport and Cincinnati Bridge Company v. Jutte, 6 O. C. C. (N. S.) 189; In Re: Bowen, 141 Oh St 602.

The second assignment is that “The order of the court upon which the contempt charges were made was null and void and of no effect.” The original temporary restraining order was issued on June 10th, It recited that the court “refrains from fixing the number of pickets at each entrance of the plant but in case this order be not obeyed, the court will then entertain a motion for modification to fix such number,” Bond was fixed in the sum of $1,000.00. On June 16th, on plaintiff’s motion, supported by affidavits, that the temporary injunction had been violated, the court directed that the temporary order be modified. The modification carried substantially the terms of the original order but fixed the number of pickets that could be maintained at entrances to the plant of the company. This modified order further provided that it should modify and supersede the temporary injunction of June 10, 1948 and that the $1,000.00 cash bond “heretofore deposited by the plaintiff shall apply to the temporary injunction as heretofore issued and also the temporary injunction as modified.” Notice of the terms of this order was served upon all the defendants but Julia P. Hupman. On July 28th, 1948, it appears by entry of the court that the defendants-appellants herein were guilty of contempt in violating the temporary injunction of June 10th, 1948, and modification of June 16th, 1948, and the court on its own motion further modified and supplemented the temporary injunction to restrain nine individuals, among whom are the five defendants-appellants herein, from engaging in any picketing activities whatever at the plant or premises of the Univis Lens Company and from assisting in, or cooperating with, any such picketing activities, even to the extent such picketing is permitted under the court’s temporary injunction as modified on June 16th, 1948. The entry further recited that the $1,000.00 cash bond shall further apply to the temporary injunction heretofore in éffect and also to the modification made on the court’s order.

It is the contention of appellants' that the order upon which they were tried and sentenced was void because of the failure of the trial judge to observe the terms of §11891 and 11882 GC.

Sec. 11891 GC, treating of motions to vacate or modify an injunction, defines the proceedings when a party applies to the court for vacation or modification of an injunction. The charges upon which the defendants were convicted were upon the order as modified upon the court’s own motion and not upon the motion of a party. However, it would be inappropriate for the court to hear and condemn defendants upon a charge of a violation of a restraining order of which they had no notice or knowledge. But it is manifest that they had notice of the modification because it is recited in the entry that it was made contemporaneously with an adjudication of their contempt in failing to observe a former modification order. Further, the affidavit supporting the charges upon which defendants were eventually convicted avers knowledge on the part of the defendants of the terms of the order and their presence in court with counsel, without any suggestion to the contrary, is convincing that they did have such knowledge.

Manifestly, the Common Pleas Court, a court of general jurisdiction, had authority to issue any and all of the three temporary injunctions. These orders were made in the exercise of that general jurisdiction.'

Sec. 11882 GC provides for bond in eases of injunction and that a deposit may be made in lieu of bond. The court originally fixed a $1,000.00 deposit in lieu of bond and thereafter on the successive orders specifically provided that this deposit in lieu of bond should serve the purpose of a bond in both modifications. The deposit was required in one and the same action. It is evident that the court felt that $1,000.00 deposit was sufficient to meet any probable liability on the part of the plaintiff by reason of the issuance of the original and succeeding orders. Upon the terms of the entries journalizing the orders there is no doubt that the plaintiff was made liable for any damages resulting from the improper issuance of any one of the three orders.

The only possible objection that could have been made to the failure of the court, either to fix separate bonds or increase the amount of the deposits, was that such procedure was irregular or that the amount of the deposit in lieu of the bond was inadequate. Such irregularity did not affect the jurisdiction of the court to act as it did and if it is to be made the basis of this error proceeding, must have been called to the attention of the trial judge. Sec. 11576 GC, paragraphs 1 and 8, and §11576-1 GC.

The third and fourth assignments of error are: “Passion and prejudice on the part of the lower court, preventing defendants from having a fair trial", and that “The sentences of the court were excessive, motivated by passion and prejudice.” There is no support whatever for these claims. The court was tolerant to a marked degree, which fact was recognized in open court by counsel for defendants.

The fifth assignment is “Other errors of law occurring at the trial.” This assignment is not urged in thé brief. We find no assignment which is presented well made.

No good purpose would be served in protracting this opinion or in citing and discussing the many cases which are germane to some aspects of this proceeding because there is no close question of law involved. The specific proof of the charges made against the defendants was forthcoming from several witnesses and in the face of this proof defendants did not take the stand either to deny the charges or to refute the testimony of the witnesses. Defendants were given a fair, considerate and impartial hearing and no error intervened to their prejudice.

The judgment will be affirmed.

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


text:
    THE UNIVIS LENS COMPANY, Plaintiff-Appellee, v. UNITED ELECTRICAL WORKERS OF AMERICA etc. et, Defendants-Appellants.
    Ohio Appeals, Second District, Montgomery County.
    No. 2011.
    Decided June 8, 1949.
    Smith, Schnacke & Compton, Dayton, for plaintiff-appellee. Eugene A. Mayl, Thomas B. Talbot, Dayton, for trial judge. Davis, Davis & Handelman, Cleveland, John H. Ober, Dayton, for defendants-appellants.
   OPINION

By THE COURT:

This is a law appeal from a judgment of the Court of Common Pleas for Montgomery County entered on August 3, 1948, finding the defendant-appellant, Louis Kaplan, guilty of direct contempt of court.

The record discloses that Kaplan and four others, on August 2, 1948, had been found guilty of contempt a second time for violation of the court’s injunction; that the court announced that it would finally dispose of the matter at 10:00 o’clock on the following morning; that these five parties had been attached under order of the court and were in the custody of the sheriff. At the adjournment of court on August 2, and upon the express promise of this defendant and the other four to appear in court at 10 o’clock on the following morning, the court permitted them to go to their homes rather than remain in jail over the night. On the following morning all of the defendants appeared as promised with the exception of Kaplan, the defendant-appellant. After waiting for his arrival for sometime the court ordered the sheriff to produce him. At 11:30 A. M. Kaplan voluntarily appeared in court. The court thereupon demanded an explanation and Mr. Davis, counsel for the defendant, then made the statement to the effect that the defendant had personal injuries which kept him awake most of the night and that as a result he had overslept and had not intended to violate the court’s order. The court then found the defendant guilty of contempt and pronounced sentence. The .defendant then apologized to the court for his indiscretion and made a further explanation which was practically the same as that made by his counsel. The court then suspended five days of the fifteen day jail sentence, which had been imposed, stating that he did not think that the violation of the court’s order was intentional.

The first assignment of error is that the finding of the court is contrary to law, that contemptuous intent is a necessary element of the offense which the court found not to exist, Whether or not intent is a necessary element, it seems, is dependent upon the nature of the act complained of. If it was committed in the presence of the court, or so near the court or judge as to obstruct the administration of justice, the proceeding would be a summary one under §12136 GO. Under this section we are of the opinion that the intent is not a necessary element. On the other hand, if the act comes under any of the classifications set forth in §12137 GC it seems that a different rule applies. In 9 O. Jur. at page 14, it is said:

“Acts committed in the presence of the court, particularly, are assumed to have been done with intent to show some disrespect. Hence in a proceeding under paragraph 12136 GC, which is declaratory of the common law, it is not necessary to aver or prove intent.”

The same principle is announced in Steube v. The State of Ohio, 3 O. C. C. at page 387:

“It is claimed on his behalf that he did not intend to obstruct the administration of justice by his assault upon Mr. Huling, and that the evidence fails to show any such intention. Treating this as a proceeding under §5639 GC, (now §12136 GC) which in our judgment is but declaratory of the common law, it is not necessary to aver or prove intent. Whoever by misconduct obstructs the administration of justice does so at his peril, and is guilty of contempt.”

In 12 Am. Jur. 439, it is said:

“The oath of a contemner is no longer a bar to a prosecution for contempt. Under the common law rule, a denial of the facts upon which contempt proceedings are based is absolutely conclusive upon the court, and no evidence can be received to contradict it. The rule, however, never obtained in courts of equity. In such courts the answer of the accused may be contradicted by other evidence. The only legitimate effect of a subsequent denial of intention to insult the court, if such denial is sincere and bona fide, is to mitigate the punishment.”

A recent decision of the Supreme Court of the United States is that of Fisher v. Pace, S. Ct. L. Ed. Advance Opinions, Vol. 93, No. 8, page 438, wherein we quote Justice Reed:

“Historically and rationally the inherent power of courts to punish contempts in the face of the court without further' proof of facts and without aid of jury is not open to question. This attribute of courts is essential to preserve their authority and to prevent the administration of justice from falling into disrepute. Such summary conviction and punishment accords due process of law.”

In the footnote to the Fisher case, supra, reference is made to Ex parte Terry, 128 U. S. 289:

“We have seen that it is a settled doctrine in the jurisprudence both of England and of this country, never supposed to be in conflict with the liberty of the citiizen, that for direct contempts committed in the face of the court, at least one of superior jurisdiction, the offender may, in its discretion, be instantly apprehended and immediately imprisoned, without trial or issue, and without other proof than its actual knowledge of what occurred; and that, according to an unbroken chain of authorities, reaching back to the earliest times, such power, although arbitrary in its nature and liable to abuse, is absolutely essential to the protection of the courts in the discharge of their functions. Without it, judicial tribunals would be at the mercy of the disorderly and violent, who respect neither the laws enacted for the vindication of public and private rights, nor the officers charged with the duty of administering them.”

It is further urged by appelllant that the court erred 'in finding that a direct contempt was committed by the defendant; that if any such an act was committed it would have been under §12137 GC. It is well settled, not only by statutory law but also by judicial recognition of the inherent power of the courts to orderly administer justice, that a contempt in the presence of the court or so near thereto as to obstruct the administration of justice, may be punished summarily. Sec. 12136 GC. But entirely apart from the statutory authorization, the Supreme Court of Ohio has held that the courts have the inherent power to punish summarily for contempts, such power being inherent and necessary to exercise judicial functions, and that a statute cannot abridge or limit this inherent power. Hale v. State, 55 Oh St 210; State v. Albin, 118 Oh St 527. Such statutory powers are merely cumulative and in addition to the inherent powers of the court in such matters.

In direct contempt cases punishment may be adjudged informally and at once, without the filing of charges, the issuance of process or the taking of evidence. In Matter of Lands, 146 Oh St 589, at p. 595; In re Hannberger, 19 C. C. 651. The above section of the Code, authorizing a summary punishment, has been applied by the courts to various acts which delayed and interfered with trials, or otherwise obstructed the administration of justice, even though not in the court room in the physical presence of the court. The Court of Appeals of Crawford County, in Beach v. Beach, 79 Oh Ap 397, at page 404, very recently said:

“When they speak of ‘in the presence of the court’, the courts have universally held that it is more than the idea of physical propinquity.

Neither place nor distance from the court determines whether the act complained of is done constructively in the presence of the court. However, if the act is of such character and is done under such circumstances that naturally its effect would be felt in the actual administration of justice, then the act is as much done in the court’s presence as if the person doing the act were actually in the court’s presence.

Likewise it has been held to be a contempt, which may be punished summarily, for a party being tried for contempt to fail to promptly appear at the appointed time following a court adjournment. In re Hannberger, 19 C. C. 651. A summary proceeding has been used to punish as a contempt an assault made upon the prosecuting attorney several blocks away from the court house, during an adjournment of court, which resulted in a delay of the trial. State v. Steube, 3 C. C. 383. See, also, State ex rel. v. Shay, 30 N. P. N. S. 657.

We are therefore of the opinion that the trial court properly found that the conduct of the defendant was a direct contempt of the court. We find no error in the record and the judgment is affirmed.

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