author: By THE COURT: By THE COURT:

text:
    LEWIS, Appellant, v. CARPENTER et, Appellees.
    Ohio Appeals, Second District, Montgomery County.
    No. 2102.
    Decided March 15, 1950.

      Joseph R. Garber, Joseph W. Sharts, Dayton, for appellant.
    Herbert S. Duffy, Atty. Geni., Columbus, for appellees.
   OPINION

By THE COURT:

Submitted on motion of plaintiff-appellant to amend his assignments of error by adding thereto two additional grounds of error.

The notice of appeal was filed February 13, 1950. The fifty day period within which assignments of error may be filed has not expired.

Motion to amend sustained.

MILLER, PJ, and HORNBECK, J, concur.

ON MOTION TO DISMISS APPEAL

No. 2102.

Decided March 21, 1950.

Joseph W. Sharts, Joseph R. Garber, Dayton, for plaintiff-appellant.

Herbert S. Duffy, Atty, Geni., Charles A. Linch, Asst. Atty. Geni., Columbus, for defendants-appellees.

By THE COURT:

Submitted on motion of the defendants-appellees to dismiss the appeal on questions of law and fact.

This action involves the revocation of a real estate broker’s license by the State Board of Real Estate Examiners. An appeal was taken to the Common Pleas Court of Montgomery County, Ohio, which court affirmed the decision of the State Board. From the judgment of the Common Pleas Court affirming the State Board this appeal on questions of law and fact was taken.

This proceeding is wholly statutory and is not an action in chancery. The questions raised by the plaintiff-appellant have been adequately answered by our Supreme Court in Farrand v. State Medical Board, 151 Oh St 222, 85 N. E. (2d) 113.

Motion to dismiss the appeal on questions of law and fact is hereby sustained. The appeal will stand as an appeal on questions of law. The appellant may file his bill of exceptions in conformity to the provisions of Supplement to Rule VII of this Court. It appearing' that appellant has filed assignments of error and brief, and also the appellee has filed an answer brief, no order is necessary with respect to the filing of assignments of error and briefs.

So oi’dered.

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

ON APPEAL AFFIRMING AN ORDER

No. 2102.

Decided December 21, 1950.

By MILLER, PJ:

This is a law appeal from the judgment of the Common Pleas Court affirming an order of the Board of Real Estate Examiners revoking the appellant’s broker’s license for violating paragraph 20 of §6373-42 GC. The specific charge is that the appellant, Paul E. Lewis, offered real estate for sale without the knowledge and consent of the owner or his authorized agent.

We have carefully examined the transcript of the testimony in the proceedings had before the State Board of Real Estate Examiners and find:

The record reveals that in January, 1948, appellant was employed as a real estate salesman associated with one Nolan Lewis, a real estate broker, doing business as American Realty Company in Dayton, Ohio.

On November 8th, 1947, one Lillie Shapiro, holder of the legal title to certain real estate, entered into a contract wherein, in consideration of Ten Thousand Dollars ($10,000.00). Fifteen Hundred Dollars ($1500.00) down and the balance at the rate of not less than Seventy Five Dollars ($75.00) per month, agreed to sell said property to James H. Binion and Miriam C. Binion. On payment of the total purchase price, Lillie Shapiro and hey husband were to convey the property to the Binions by general warranty deed.

Under the terms of this contract, the buyers were not to assign the contract without written consent of the seller.

On January 15, 1948, the Binions listed the same property with the American Realty Company for sale. The appellant, Paul E. Lewis, took the listing. The property was advertised by the American Realty Company.

In response to the advertisement, J. A. Bullard, the complainant before the Board of Real Estate Examiners, contacted the American Realty Company by telephone, and talked to the appellant, Paul E. Lewis, and made arrangements to view the premises.

Sometime in February, 1948, the property was shown to the complainant by Mr. Clarence Doellman, and the price being more than complainant desired to pay, no contract for purchase was entered into.

Thereafter, all negotiations concerning said property were conducted on behalf of the American Realty Company by the appellant, Paul E. Lewis.

The complainant subsequently made an offer to purchase to the Binions through appellant. Prior to the submission of this offer to the Binions, appellant checked the real estate records and found that the holder of the legal title was Lillie Shapiro. Appellant also knew of the clause in the BinionShapiro contract stating that the Binions had no right to assign their contract without the written consent of Lillie Shapiro.

Thereafter, on February 19, 1948, the appellant advised the complainant, Mr. Bullard, that a third party was involved, but that he was willing to go along. Mr. Lewis had not talked to Lillie Shapiro, and was not advised that she would be willing to permit the assignment of the contract from the Binions to the complainant, Mr. Bullard.

A contract was signed on February 23, 1948, between Bullard and the Binions. Mr. Bullard paid Two Thousand Dollars ($2,900.00) ' down under the terms of-this contract. Five Hundred Dollars ($500.00) was for commission to the American Realty Company, for negotiation of the sale, and Fifteen Hundred Dollars ($1500.00) to the Binions.

Thereafter, when the Binions could not be found, Mr. Bullard attempted to make payments under the Binion-Shapiro contract directly to Lillie Shapiro. Mrs. Shapiro refused to accept Mr. Bullard’s payments, stating, in effect, that they had not consented to the assignment of the contract by the Binions to the complainant, Mr. Bullard. The appellant has since offered to return the sum of Five Hundred Dollars ($500.00), the commission paid to the American Realty Company, but the complainant, Mr. Bullard, has refused to accept such payment.

The appellant, Mr. Lewis, contends that he sought the advice of counsel, Mr. Robert J. Kelly, Attorney at Law, Dayton, Ohio, in negotiating this alleged sale, and therefore, acted in good faith.

The testimony of Mr. Kelly on page 66 is as follows:

“I advised him, Paul Lewis, that in my opinion the contract could not be assigned, and that if he wanted to sell the property, unless the consent of the owner could be secured, it would be necessary to have a further land contract in which the original contract shall remain in full force and effect, and Mr. and Mrs. Binion would have to continue payments under the contract. Sometime later, Mr. Lewis called me and told me that Mr. and Mrs. Binion and Mr. Bullard wished I would prepare such a contract, which I did.”

This testimony clearly reflects that Mr. Lewis was advised that the contract could not be assigned without the consent of the owner. The testimony does not reflect that appellant explained to the complainant, Mr. Bullard, that it would be necessary to secure the consent of Lillie Shapiro before the contract could be assigned. Yet, with this knowledge, the appellant, Mr. Paul E. Lewis, permitted a contract to be entered into between the complainant, Mr. Bullard-, and the Binions, taking the amount of Two Thousand Dollars ($2,000.00) and permitting the Binions, without any protection. to Mr. Bullard, to take and carry away Mr. Bullard’s certified check.

Upon these facts, the Board of Real Estate Examiners revoked appellant’s broker’s license upon a finding made that this appellant had violated §6373-42, paragraph 20, GC, which reads as follows:

“* * * having offered real property for sale or for lease without the knowledge and consent of the owner or' his authorized agent or on any terms other than those authorized by the owner or his authorized agent * *

We have carefully examined the briefs of counsel and find that the real question involved in this case is the construction of the word “owner” as contained in subparagraph 20 of §6373-42 GC. The appellant is contending that the owners of the property were the Binions, and that the sale was authorized by the owners. In a technical sense the appellants are correct in their conclusion. When used in this manner ownership does not necessarily imply an absolute unqualified or unconditional right to the entire thing, but may embrace a lesser estate or interest. 32 O. Jur. 628, Section 23. Baltimore & Ohio R. R. Co. v. Walker, 45 Oh St 577, 585. But when applied to land it usually denotes a fee simple estate. McCarthy v. Hansel, 4 Oh Ap 425. The meaning of the word depends upon! the connection in which it is used. In the case of Bowen v. John, 201 Ill. 292, 66 N. E. 357, an interpretation of the word "owner” was involved as it was used in a will. At page 358 of 66 N. E. it is said:

“The term ‘owner’ when applied to real estate, means an estate in fee simple. Illinois Mutual Ins. Co. v. Marseilles Manf. Co., 1 Gilm 236.”

In Eardley v. Burt, et al., 182 S. W. 721, the Court was considering the word “owner” as applicable to the Mechanics Lien Law. On page 724 the Court states as follows:

“But if M. H. Burt only had a contract to purchase, he was not the owner within such statutes.”

See also Hardin v. Chattanooga Southern Railway Company, 113 Ga. 357, 38 S. E. 339; Phillips v. Hardenburg, 80 S. W. 891; Warren, et al. v. Lower Salt Creek Drainage District, 316 Ill. 345.

In.37 O. Jur. Section 288, it is said:

“As a general rule, words of a statute, in common use or other than terms of art or science, will be constrxxed in their ordinary acceptation and significance and with the meaning commonly attributed to them. Indeed, the intention of the Legislature to use statutory phraseology in such manner has even been presumed. Ordinarily, such words are to be given their natural, literal, and full meaning. These rules ave applicable unless such an interpretation would be repugnant to the intention of the Legislature, as plainly appears from a construction of the entire statute.”

And continuing at Section 290:

“Courts should be slow to impart any other than their natural and commonly understood meaning to terms employed in the framing of a statute. Too harrow a consti’uction of terms is not favored. Statutory phraseology should not be given an unnatural, unusual, strained, arbitrary, forced, artificial, or remote meaning which may, in its last analysis, be technically correct but wholly at variance with the common understanding of men. A technical construction of words in common use is to be avoided. Nor should the Legislature be regarded as having used terms in a statute in an obsolete, sense.”

Also, at Section 275 of 37 O. Jur. it is said:

“A construction adopted should not be such as to defeat the obvious intention of the legislature or do violence thereto, wholly or partially, but rather one which would carry such intention into effect.”

We are therefore of the opinion that as a general rule words of a statute in common use will be construed in their ordinary acceptation and significance and with the meaning commonly attributed to them. Such words are to be given a natural, literal and full meaning unless such interpretation would be repugnant to the intention of the Legislature as plainly appears from the construction of the entire statute.

A careful examination of $6373-42 et seq, GC, discloses that it is designed to protect the public in its dealings with real estate agents, and paragraph 20 discloses further that its purpose is to protect the owners of property from having their property exposed for sale without their knowledge or consent and for the further protection of the person intending to make the purchase. The facts in this case clearly demonstrate the manner in which the purchaser may be damaged. If the fee owner had had knowledge of this transaction he could have informed the prospective purchaser and the real estate agent of his objections to this sale. Had the statutory requirements been met it is apparent that the sale would never have been negotiated, as the sale was made upon terms by which the purchaser was to acquire the fee upon the completion of his contract. The appellant urges that he acted upon the advice of counsel and that the violation was not wilful; therefore he should not have been found guilty, but the statute does not require that it be a wilful violation. A mere showing of the commission of the act is sufficient to sustain the ruling of the Board. All the surrounding facts and circumstances may, however, be considered by the Board in determining the penalty to be imposed. The record shows that the appellant was not ignorant of the facts complained of but only of the law applicable thereto. The ignorance of the law cannot be valid excuse. Real estate brokers are required to know the law applicable to their business, being subject to an examination conducted by the real estate board before being eligible for a líense.

The appellant also raises the question of the legality of the restriction in the contract with reference to an assignment without the consent of the grantor, but this is not an issue in this case. Under their contract the Binions had the right to acquire title to the property under consideration, but the same was never exercised and therefore they never became the owners. The only finding of the Board is that the appellant violated the section of the Code by having “offered real property for sale or for lease without the knowledge and consent of the owner or his authorized agent, or on any terms other than those authorized by the owner or his authorized agent.” This finding was affirmed by the Common Pleas Court and we are of the opinion it was fully sustained by the evidence.

None of the,errors assigned are well made and the judgment will be affirmed:

HORNBECK and WISEMAN, JJ, concur.

ON APPLICATION FOR REHEARING

No. 2102.

Decided January 9, 1951.

By THE COURT:

This is an application for rehearing in which the appellant appears to misconstrue the charge against him and of which he was found guilty. He was not being charged with having made an illegal sale as urged in his brief, but only of having offered real property for sale in violation of §6373-42 Par: 2® GC.

The record discloses that the property involved herein was offered for sale by means of an advertisement in a local newspaper and to which Mr. Bullard responded. It reveals further that the appellant’s attorney gave him no advice on this matter but only on the legality of the sale of the land contract. He consulted counsel after the offer to sell had been made but before completion of the same. Therefore it cannot be said that he acted upon the advice of counsel. We find no denial of due process of law to this appellant because the finding of facts by the Real Estate Board is final since an appeal from a ruling of the Board may be had on questions of law only and not on law and fact. The Board was not acting as a court vested with judicial powers within the meaning of the Constitution. It was created by the Legislature as an administrative agency for the purpose of administering the laws applicable to real estate brokers and it was in the exercise of this power that the order complained of was issued.

In State, ex rel. v. Harmon, 31 Oh St 250, it is said:

“The authority to ascertain facts, and to apply the law to the facts when ascertained, appertains as well to the other departments of government as tq the judiciary.”

In Fassig v. State, ex rel. Turner, 95 Oh St 232, that power which may be conferred upon tribunals other than courts is well defined in syllabus 2:

“The line which separates power to make laws from, power to interpret and apply laws is not exactly defined. The legislature cannot confer upon tribunals, other than courts, powers which are strictly and conclusively judicial. Brat in providing for the enforcement of its enactments, it may clothe administrative officers with power to ascertain whether certain specified facts exist, and thereupon to act in a prescribed manner, without delegating to such officers legislative or judicial power within the meaning of the constitution."

In the case of City of Cincinnati v. Wright, 77 Oh Ap 261, the Court held that a license to operate a motor vehicle may be revoked by an administrative officer without judicial interference in the proper exercise of such power, syllabus 3 providing:

“The granting, suspension, or revocation of licenses to operate motor vehicles are legislative and executive functions, and power to grant, suspend and revoke can be conferred upon administrative officers without judicial interference, in the proper exercise of such power. Such power has been conferred upon the registrar of motor vehicles by §§8296-17, 6296-18a, 8296-18b, GC and cognate sections of the General Code."

See also 8 O. Jur. 308, Section 204; 42 Am. Jur. 449, Section 116.

The application will be denied.

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


source: Caselaw Access Project

author: By CROSSLAND, J:—

license: Public Domain

text:
    ZANESVILLE (City), Plaintiff, v. ZANESVILLE CANAL AND MANUFACTURING COMPANY, etc., et al, Defendants.
    Common Pleas Court, Muskingum County.
    No. 37332.
    Decided July 10, 1951.

      J. Lincoln Knapp, City Solicitor, Zanesville, for plaintiff. Neil Starkey, Charles S. Leasure, H. E. Walters, Zanesville, James Gorrell, Columbus, for defendants.
   OPINION

By CROSSLAND, J:—

We are taken back a century and a half for an insight into •and a consideration of-- pre-Zanesville and early Zanesville history in order to embrace the factors necessary to the determination of the issues of this action, assuming the authority to do so.

The original plat of what was created by the Ohio General Assembly as the “borough of Zanesville,” January 21, 1814, is dated of public record April 28, 1802, under the joint proprietorship of John Mclntire and Jonathan Zane, who caused lots 8 and 16 in Square 13 each to be marked “A” and contained thereon the refei'ence “Lots marked A appropriated for a Market House.”

A ground level or first floor market subsequently began and provision therefor has continued almost uninterruptedly to date, the present building thereon containing a second floor housing various public city, school and county offices.

Plaintiff desires to discontinue the use of said lots for a market house and either to remodel the existing structure or to construct thereon a new building or buildings for public offices and a city prison and asks certain specific questions in relation thereto in section 9 of its petition for a declaratory judgment.

Defendant The' Zanesville Canal and'Manufacturing Company, Trustee under the will of John Mclntire, deceased, answered. asking for strict proof of allegations of the petition except those expressly admitted.

Constructive service was had upon the unknown heirs, devisees, legatees, executors, administrators, next of kin and assigns of Jonathan Zane, deceased.

Leave was granted by the court to Charles S. Leasure to become a party defendant on his own behalf and on behalf of all other persons resident of Zanesville and Muskingum County, who thereupon answered, asserting two defenses, one being that said lots may be used only for a market house and, secondly, that the court is not empowered under lav; to render a declaratory judgment upon the issues offered by the petition and controverted by him.

Proceeding to the question of authority to entertain and render a declaratory judgment upon the questions asked by plaintiff and issue thereto, the answer is clear and positive.

“As provided in §12102-5 GC, the enumeration in §12102-2 GC, does not limit or restrict the exercise of the general powers conferred in §12102-1 GC, in any proceeding where declaratory relief is sought, In which a judgment or decree will terminate the controversy or remove an uncertainty.” Coshocton Real Est. Co. v. Smith, 147 Oh St 45, 3rd syllabus.

The merit of the questions asked and issues thereunder is much less easy to determine and admits of no categorical answer within the positive knowledge of this court, but will be approached as simply and logically as possible and determined accordingly.

The deed of December 19,1800, from Ebenezer Zane and wife to Jonathan Zone and John Mclntire of the 640 acres laid out by them in town lots recites payment therefor of $100.00,

The plat itself was prepared, filed and recorded by the then. future original proprietors of Zanesville, pursuant to and in accordance with an act of the General Assembly of the Territory of the United States, north-west of the River Ohio, to provide for the recording of Town plats, approved December 6, 1800, and effective May 1, 1801. Its pertinent provisions follow:

“Sec. 3. And be it further enacted, That whenever any town shall hereafter be laid out within this territory, the proprietor or proprietors of such town, shall cause a map or plat thereof to be recorded in manner aforesaid, before any lot or lots therein be offered for sale; and if any person or persons shall sell, or offer for sale, any lot or lots within such town, before the plat thereof be recorded as aforesaid, such person or persons shall forfeit and pay the sum of one hundred dollars, for every lot so sold.

Sec. 4. And be it further enacted, That such maps or plats as are required by this law to be recorded, shall particularly set forth and describe, all the public ground within such town, by its boundaries, courses and extent, and whether it be intended for streets, alleys, commons or other public uses, and all the lots intended for sale by progressive numbers and their specific length and width, and the map so made and acknowledged before a justice of the peace, or justice of the common pleas of the proper county where the town lies, or before a judge of the general court, or being made and proved agreeably to the provisions contained in the second section of this act, and certified under the hand and seal of the judge or justice taking such acknowledgment or probate and recorded, shalL be deemed 'a sufficient conveyance to vest the fee of such parcels of ground as are therein expressed, named or intended to be for public uses, in the county in which such town lies, in trust to and for the uses and purposes therein named, expressed or intended, and for no other use or purpose whatever.

Sec. 5. And be it further enacted, That if any proprietor or proprietors, their agent or attorney, shall cause any map of a town to be recorded as aforesaid, which does not set forth and describe, in manner aforesaid-, all and every parcel of ground which has been or shall be promised or set apart by the original articles of sale, for public uses and other lots, such person or persons shall forfeit and pay double the value of the ground so promised and not set forth in the map; three foursh parts thereof to the use of the county wherein such town lies, for the express purpose of purchasing ground within and tor the use of such town, in lieu of that which was so promised, and the other fourth part to the use of the person prosecuting.”

The first Act, to provide for the recording of town plats, by the Ohio General Assembly, was dated February 14, 1805, effective June 1, 1805, and was virtually a re-enactment of the foregoing.

Thereafter, said Act of 1805 was repealed and a new, changed and much more extensive law was enacted and became effective June 1, 1831, in replacement, and included provisions similar to those above set forth, excepting that in Section 6 thereof it was provided that:

"such map or plat so recorded, shall be deemed a sufficient conveyance to vest the fee of the parcel or parcels of land therein set forth and described, or intended to be for streets, alleys, ways, commons or other public uses, in such city or town corporate, to be held in the corporate name thereof, in trust to, and for the uses and purposes so set forth and expressed ,or intended.”

The foregoing portion of section 6 of the Act of 1831 is restated in present §3585 (73 v. 60) GC which reads as follows:

“Sec., 3585 GC. Fee shall vest in municipality. The map or plat so recorded shall thereupon be a sufficient conveyance to vest in the municipal corporation the fee of the parcel or parcels of land designated or intended for streets, alleys, ways, commons, or other public uses, to be held in the corporate name in trust to and for the uses and purposes in the instrument set forth and expressed, designated, or intended.”

Subsequent to the aforesaid platting April 28, 1802. the General Assembly of the State of Ohio enacted an Act. effective March 1, 1804, to establish the County of Muskingum, making Zanesville its temporary seat of justice.

Effective as of April 1, 1814, an Act to incorporate the town of Zanesville was enacted by the Ohio General Assembly, January 21, 1814, the first section of which reads as follows:

“Sec. 1. Be it enacted by the General Assembly of the Si,ate of Ohio, That all that part of the town of Zanesville, in the County of Muskingum, included in the original plat thereof, and now on record in the County of Washington, together with all the additional lots since added thereto on the east, side of the river Muskingum, and now on record in the County of Muskingum, be, and the same is hereby erected into a town corporate, and shall henceforth be known and distinguished by the name of the ‘borough of Zanesville’; subject however to such alterations and regulations as the legislature may from time to time think proper to make.”

The opening sentence of the fifth section of said Act reads:

“Sec. 5. Be it further enacted, That the said mayor, recorder and trustees and their successors in office, shall be capable to receive, acquire, hold and convey any estate real or personal for the use of said corporation:”

Three early Ohio Supreme Court eases deal with comparable situations and arrest attention and consideration with respect to the instant case. There are many more but this court believes that these particular three contain the substance of early Ohio Supreme Court expression more or less contemporaneous with the subject matter therein dealt with and herein presented. Page references are to page bottom numbers.

In the case of Brown v. Manning et al, 6 O. 295, decided in the December Term, 1834, the first paragraph of the opinion of the court on page 300 reads as follows:

“The subject of appropriations for public purposes has of late been frequently under the consideration of courts in our country; and it is now well settled that where lands are dedicated by the owner to any lawful use, public, pious, or charitable, and are used for the object, and in the manner contemplated by the owner, it' inures as a grant. The existence of a grantee is not essential to the validity of such dedication, nor is any particular form of words necessary to give it effect. If accepted and used by the public in the manner intended, it works an estoppel in pais, precluding the donor, and all claiming in his right, from asserting any ownership inconsistent with such use.”

The case of City of Cincinnati v. Hamilton County, 7 O. 82, decided in December Term- 1835, concerned occupation and use by Hamilton County of land in Cincinnati which was dedicated by the original proprietors of Cincinnati for public uses. The city sought to eject the county after the county court house burned down. Cincinnati was laid out in 1789. On pages 90 and 91 of its opinion the court discusses the Act. of December 6, 1800, hereinbefore referred to, in the following language:

“On December 6, 1800, a law was enacted by the territorial legislature, 1 Chase. Stat. 201, requiring the proprietors of any town that had theretofore been, or that thereafter should be laid out within the territory, to cause a true and accurate map or plat of such town, to be recorded in the recorder’s office of the proper county — and the same law provides that the fee of any and all parcels of ground designated or intended to be for public uses, should, by such recording be vested ‘in the county, in which such town is, in trust to and for the uses and purposes therein named, expressed, or intended, and for no other use or purpose whatever.’ Upon the recording of the plat of Cincinnati, the fee of the lots in controversy, was vested in the County of Hamilton — not to be disposed of in such manner as the authorities of the county might deem most expedient and proper, but in trust for the uses ‘intended’ by the proprietors of the town.”

In the same term of court the case of Le Clercq et al. v. Trustees of Gallipolis, 7 O. 214 was decided. This case concerned a public square or “La Place,” as it was designated originally and which it was expressly stipulated “shall remain free, and never be alienated or obstructed on the bank of the river by any kind of buildings.” The court held that: “The acts of the commissioners, valuing the lots adjoining ‘La Place’ at a higher price, ‘because it was forever inalienable and to be kept open’ thus furnishing evidence of the object,” warranted a perpetual injunction against the City of Gallipolis from diverting La Place from its original use as a public square, for which the ground had been used for nearly forty years, “except so far as the court house and market house have interrupted this occupation.”

The court’s opinion was written by Justice Lane, who also wrote the opinion in Brown v. Manning, supra, both of which are excellent and scholarly treatises of the law.

“Among the inestimable advantages secured by the constitution of Ohio to its citizens, is the inviolability of private property. The power of divesting the owner of his rights is limited toy Section 4 of Article 7, to those cases where it is necessary for the public welfare.” (bottom page 217.)

In referring to trusts “in public corporations instituted for political or civil purposes, as cities or towns,” Justice Lane comments:

“If the object of its creation can be attained, the court of chancery will enforce its execution. Where circumstances are so changed, that the direction of the donor prescribing the use, can not be literally carried into effect, the legislature or the court, in those cases where general intention can be effected, may lawfully, in some cases, enforce its execution as nearly as circumstances admit, by the application of the doctrine of cy pres.”

What is the “sense” and effect of all of the foregoing and what can be concluded and determined therefrom?

Having shortly before invested $100.00 in 640 acres of military lands for a town site, Mclntire and Zane presumably complied fully with the territorial law in effect April 28,1802, with reference to town plats. The law contemplated some public ground and deemed the map or plat “a sufficient conveyance to vest the fee of such parcels of ground as are therein expressed, named or intended, for public uses, in the county in which such town lies, in trust to and for the uses and purposes therein named, expressed or intended and for no other use or purpose whatever.”

Section 5 of the Plat Act clearly indicates that town proprietors were required to reserve some parcels for public use before they could sell others and prescribed a penalty of double value for failure to “set forth and describe, in manner aforesaid, all and every parcel of ground which has been or shall be promised or set apart by the original articles of sale, for public use.”

While Zane and Mclntire presumably and apparently complied fully with the existing territorial law in platting original Zanesville, including the appropriation of two certain lots “for a Market House,” does it necessarily follow that said lots now remain forever impressed with a trust “for no other use or purpose whatever,” if the 'circumstances and words of dedication are considered less rigidly binding presently?

The judicial authority of that era, while said law was still operative, seemingly admits of no alternative view, unless “circumstances are so changed, that the direction of the donor prescribing the use,, can not be literally carried into effect,” in which event it is conceded that “the legislature or the court, in those cases where general intention can be effected, may lawfully, in some cases, enforce its execution as nearly as circumstances admit, by the application of the doctrine of cy pres.”

What can and should be said as to what may or may not be done, at this date, more than one hundred years after the legislative enactments and judicial pronouncements. above referred to, which themselves were some years after the statutory dedication by the original proprietors of Zanesville?

On the one hand, plain, understandable and unambiguous language should not be given a tortured or illogical construction. At the same time, should considerations engaged and determinations, made under the circumstances and contemplation and in the light of the events ox one and one-half centuries ago continue as the irrevocable basis for the ensuing 150 years, without any latitude whatever for the exercise of present or future judgment by responsible elective public officials regarding present and future public needs, interest or welfare?

In a government of law, witnessing tremendous and decided evolutionary social, economic and political changes, must and shall the law itself, through which alone government performs its operations and discharges its services, become unwilling or unable to recognize or admit new centuries, new populations, new conditions and new needs, when called upon to judge new questions?

To the mind and opinion of this court, the law is a living-force, intended to serve living needs, drawing through its roots upon the fertility and greatness of the past, whose principles are ever immutable, but whose principles it is the aim and endeavor of government by law ever to energize and keep virile in their application and effect.

With the foregoing conception of duty and responsibility incumbent upon the court, not to. resign itself to a taciturn complacency of its own inadequacy, an attitude obviously also held by the municipal authority of the City of Zanesville, let us consider as of now the merit of plaintiff’s inquiry.

Lots appropriated ixx 1802 for a Market House in Zanesville, if no longer nor hereafter deemed necessary therefor by responsible municipal authority, acting under and pursuant to law. may be appropriated by those now or’hereafter charged with the responsibility of municipal management and operation in the lawful conduct of its affairs, for use for public city offices and a city prison, in lieu of continued use for a Market House, under §3677 CG, which provides that:

“Municipal Corporations shall have special power to appropriate, enter upon and hold real estate within their corporate limits,” paragraphs 3 and 4 stating purposes for which such power shall be exercised as being:
“3. For public halls and offices, and for all buildings and structures required for the use of any department;
“4. For prisons, workhouses, houses of refuge and correction, and farm schools;”

Secs. 3679 and 3680 GC prescribe the requirement of appropriate resolution and advertisement, with successive steps thereafter applicable in the circumstances, so as to unquestionably establish the fee in the City of Zanesville, with the divestment of any possible longer fee in Muskingum County, which may have resulted under former law, and, in an abundance of caution, with service of notice upon each of the two original defendants herein, but without financial obligation owing or compensation assessable or determinable to or in favor of any person or party, concluding with the judgment of this court confirming such proceedings in accordance with the decree herein and in conformity with the requirement of the applicable provisions of said chapter and statutes.

"Under the power of eminent domain public grounds, parks', squares, commons, landings, and similar public property, may be appropriated to another public use, even though the property has been dedicated to a purpose with which the new use is inconsistent.” 15 O. Jur. 757, Sec. 55.

"Public streets, squares, landings and grounds are held in trust for the public, and being so held they are, for the use for which they were dedicated or acquired and subject to the property rights of the abutting owners, under the absolute control of the legislative power of the state.” L. & N. R. R. Co. v. City of Cincinnati, 76 Oh St 481, 1st sentence, 1st syllabus. (See also second paragraph page 507.)

The above language was restated and reaffirmed in City of Gallon v. City of Gallon, 154 Oh St 503, top of page 508, decided February 7, 1951.

This court considers and holds that thereupon said premises will be held by plaintiff in fee simple title, not absolute, but in trust for public use in accordance with the municipal appropriation, without accountability otherwise than for its continued public use for the purposes of the municipal appropriation.

As heretofore expressed, this court does not claim or seek to arrogate to itself on the subject matter'of this action unreserved finality of conviction or assurance of judicial omniscience, but welcomes a review of what it believes involves a question of general public interest.

In brief recapitulation, otherwise stated than before, the court takes judicial notice of the fact that during past years public market houses as shopping centers where country producer-sellers and city or town consumer-buyers met periodically and transacted their selling and buying requirements weekly or semi-weekly, as was the custom for long years long ago, have virtually ceased to exist as even the semblance of what they once were. New and improved highways, new and improved modes of transportation, new and improved marketing and super-marketing, sales, distribution and all factors of producer sales and consumer purchases have brought about a complete metamorphosis in the business of foods, flowers, et cetera. Would a downtown block be dedicated in a 1951 city plat any where in Ohio for the single restricted unalterable use and purpose of a market house: Or exacted as a promise and required of the dedicators?

Counsel for plaintiff may prepare and submit to counsel for defendants an entry in accordance with the foregoing findings and conclusion for consideration of approval and then to the Court for its approval for filing, with exceptions.


author: By THE COURT:

text:
    SOPRONYI et, Plaintiffs-Appellants, v. ASZTALOS, Defendant-Appellee.
    Ohio Appeals, Second District, Montgomery County.
    No. 2055.
    Decided December 10, 1949.
    Myers, Mills, Boeseh & Cline, James T. Cline, of Counsel, Dayton, for plaintiffs-appellants.
    William T. Poliak, Dayton, for defendant-appellee.
   OPINION

By THE COURT:

This is a law appeal from the Common Pleas Court affirming a judgment of the Municipal Court in favor of the plaintiff for $25.00 and costs, which the plaintiff claims is grossly inadequate. The action was one for damages on two counts: (1) Real property damage in excess of the fair wear and tear under a lease; (2) conversion of personal property in said leased premises.

As to the damages to the real estate there was a total failure of proof as to the amount, as there was no evidence in the record to establish the market value either at the time of the defendant’s entry upon the premises or at the time of the surrender. The measure of damages is the difference between the market value the property would have had at the time of the surrender of possession by the defendant, if it had remained in the condition in which it was at the time possession was taken by the lessee, and its market value in the condition in which it was placed by the action of the defendant during the tenancy. Blosser v. Enderlin, 113 Oh St 121. The plaintiff is entitled to recover such amount as will fairly and reasonably compensate him for the damage done as provided by the terms of the lease. The cost of repairs may be admitted in evidence but. only for the purpose of assisting in arriving at the fair and market value of the real estate at the times under consideration. The record discloses, however, that the repairs cost the plaintiff practically nothing, as the son of the plaintiff made most of the repairs, for which no charge was made. There is also no showing' made as to how much of the alleged damages was occasioned by reason of ordinary wear and tear, which was excepted.

Turning next to the items of personal property alleged tchave been damaged, there is also failure of proof. The evidence offered on this subject was the cost of new items, which is not the proper test. The true measure of damages would be the reasonable market value of the property at the time of its conversion or, if only damaged, it would be the difference in the value of the property at the time it was received and when it was returned to the plaintiff, natural wear and tear being excepted.

We are in accord with the judgment of the trial court holding that the plaintiff was entitled to nominal damages. We find further that in fixing the amount of $25.00 the court was most fair and liberal to the plaintiff under the facts presented.

The judgment will be affirmed.

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


author: By WATTERS, J.

text:
    HASBROUCK, Plaintiff, v. GOODYEAR TIRE & RUBBER COMPANY, Defendant.
    Common Pleas Court, Summit County.
    No. 165320.
    Filed June 5, 1951.

      Maurice H. Shapiro, Hugh P. Brennan, Cleveland, for plaintiff.
    Walter E. deBruin, Akron, for defendant.
   OPINION

By WATTERS, J.

The plaintiff, widow of Raymond Hasbrouck, deceased, brings this appeal from the finding of the Industrial Commission disallowing her claim, against the defendant, The Goodyear Tire & Rubber Company, a self insurer.

The plaintiff claims that her husband, on or about the 24th of August, 1942, while employed as a rubber cement mixer, was unexpectedly overcome by gas or fumes being liberated from a mixing vat containing a solvent consisting of alcohol and benzol, which disabled him in excess of seven days.

Plaintiff further claims that thereafter, in the early part of 1943, her husband was again subjected to extreme heat and fumes of a rayon cement mixer, which again was an unusual occurrence causing him to become wobbly, etc.

Plaintiff’s husband died May 7. 1943, of lobar pneumonia which plaintiff claims was proximately caused by the above occurrences. Plaintiff does not claim any aggravation of any preexisting condition.

The Industrial Commission ruled: “That the claim be disallowed for the reason that proof of record does not establish that decedent’s death was the result of an injury received in the course of and arising out of the employment.”

All the necessary steps have been taken to give this court jurisdiction under the law.

The matter was tried to the court without the intervention of a jury.

The plaintiff, over the objection of defense counsel, which objection the referee and this court sustained (page 11 of the record) proffered this answer to a question as to what her husband had told her on or about August 24, 1942, when he picked her up in his car after work. (Answer) “Well he just said he was overcome by these fumes and there was two of the fellows had to take.him over to the fire escape door so he could get his breath.”

That narration if it occurred would seem to fit more into the events later related by other workmen as to the claimed happening of early 1943 rather than the August 24, 1942, alleged occurrence.

This court ruled it out as a self serving declaration and hearsay and not part of the res gestae. The statements of the deceased, Mr. Hasbrouek, to his wife and others were mere self serving narrations of past events.

See 143 Oh St, 421, Schmidt v. Casting Company, at page 423 and 424. The plaintiff had sought to show a statement by the deceased to a watchman, that he fell, as part of the res gestae. The court,held on page 424: “To come within the rule (res gestae) such a statement must be shown to constitute more than a mere self serving narrative of a past event.”

The court also held that the statement must be shown to have been spontaneous and impulsive.

However, even if it should be considered as part of the res gestae under the authority of some Supreme Court opinions, in this court’s opinion it does not prove in any way that the deceased employe suffered an accidental injury under the law.

The same applies to statements made by the deceased to other employes as to this occurrence and the later one claimed to have happened in early 1943. The court has ruled those statements out as not part of the res gestae. (See 143 Oh St 421 discussed above.) However, even if admitted and considered, they do not prove at all an accidental injury under the law. Also the testimony given by the various fellow employe witnesses as to their observations of the deceased, his actions, etc., do not disclose any evidence of an accidental injury under the law.

THE LAW APPLICABLE

In 98 Oh St, 34, Industrial Commission v. Roth (1918)

Syllabus (1) “A disease contracted in the natural and ordinary course of employment by a person engaged in a particular calling or occupation, which disease from common experience is known to be a usual and customary incident to such calling or occupation, is an ‘occupational disease’ and not within the contemplation of the Workmens Compensation Act.”

This case was decided of course before §1465-68a GC, etc., were made a part of the Act covering occupational diseases.

Personally I believe the courts often lose sight of the distinction between occupational diseases and the accidental injury part of the Act.

Attention is now called to Syllabus (2) of said Both case as follows:

“The -accidental and unforeseen inhaling by an employe in the course of his employment of a specific volatile poison or gas, resulting in injury or death, is not an ‘occupational disease.’ ”

Roth was painting in extremely cold weather. The paint would not spread, so he was ordered to do something unusual and out of the ordinary. 'He was ordered to heat the paint from time to time to keep it flowing freely so it would spread. In so doing this unusual thing he was overcome by the paint fumes. This the court held was an accidental injury.

Under the present statute, it would no doubt be considered an occupational disease, but then the statute as stated did not cover occupational diseases, so the court probably stretched a point and held it to be accidental injury because he was doing the unusual thing, to-wit, heating the paint. The court held that it was caused wholly by accident and misadventure and not something that a painter would be subjected to in the usual working of his trade. The court stresses too that the employe Roth was not a painter. In other words, Ms usual employment for the employer was not as a painter. (See discussion on page 40).

126 Oh St, 251, Industrial Commission v. Palmer.

Syllabus (1) “Where it is disclosed by the evidence that a workman in the course of his employment was subjected to unusual emissions of carbon monoxide gas upon two specific occasions, and that his disability and death resulted therefrom, an award of compensation under the Workmens Compensation Act will be sustained.” (Emphasis by the court.)

On page 254 the court said in substance that it was the contention of the Industrial Commission that the decedent continuously inhaled carbon monoxide gas over a. long period, and that this gradual absorption caused his death, but that that did not constitute an injury.

There the court stressed the unusual emissions of gas on several specific occasions, which made it an accidental injury.

The court also mentioned on page 253 that it was conceded that an injury must be shown because the then occupational disease part of the Workmens Compensation Act did not then include “carbon monoxide” poisoning.

I might mention here also that then and now there was and is no appeal to the courts from a disallowance of an occupational disease claim.

See also 126 Oh St, 645, Industrial Commission v. Helriggle (1933):

“Death from carbon monoxide poisoning compensable— sudden and unusual hazard produced in the coal mine/’

The court said in the short affirming opinion that'the company produced a sudden and unusual hazard in the mine to which the employe was subjected in a peculiar degree. (Emphasis by the court.)

From Nelson v. Industrial Commission, 150 Oh St 1 at page 8:

“Section 35 Article II of the Constitution of Ohio differentiates between injuries and occupational diseases. The word “accident” or “accidental” is not used in connection with the word “injury,” in the constitutional provision, and yet, since injury and occupational disease are separated, the tenor of all the-decisions of this court is that an injury to be compensable under the Constitution and statutes must be one that arises from accident.”

The court then said on page 8:

“In the present case there was not a scintilla of evidence that the decedent had done or was doing a single thing on the job which he was performing which was in any way unusual or different from what he had always done in his work, or from what the three men who were working with him had done in' their work.”

From page 10 of the Nelson case, citing 140 Oh St 292, the Malone case, the term injury (as used in the Constitution as amended in 1937) and SM65-S8 GC, comprehends a physical or traumatic damage or harm, accidental in its character in the sense of being the result of a sudden mishap, occurring by chance, unexpectedly and not in the usual course of events, at a particular time and place.

Judge Hart, in the Malone case, 140 Oh St, 292, cited in 150 Oh St page 1:

“This court is still committed to the proposition that a compensable injury under the Workmens Compensation Act must be accidental ánd traumatic in character. This is necessary to differentiate compensable injury from disease which is not compensable unless caused by an (accidental) injury, and except occupational diseases, for which special provision has now been made under the law. (Sec. 1465-68a GC.J (Emphasis by the court.»

The facts briefly in the Malone case — there was heat prostration suddenly suffered due to extreme artificial heat in the factory plus extreme heat out doors. The court apparently considered the factory heat sudden, extreme and unusual, which came within -Judge Hart’s definition of an accidental injury.

From 150 Oh St at page 12, citing from 148 Oh St 693. Sehek v. Cleveland, etc. Bronze Company:

“An Injury occurs in the course of and arises out oí the employment within the contemplation of the Ohio Workmens Compensation Act, if the injury followed as a natural incident of the work and as a result of exposure occasioned by the nature, conditions or surroundings of the employment.'’

Page 696 (150 Oh St, 1. at page 12):

“Bodily harm which occurs to a workman by the sadden, unexpected and unforeseen inhalation of noxious or poisonous gases or fumes, constitutes compensable injury under the Workmen’s Compensation Act." (Emphasis by the court,

(ISO Oh St, 1 at page 13):

“There still must be evidence and plaintiff must prove that the injury was proximately caused by some act which was different in kind (or an exertion) from the regular, ordinary work, performed by the workman and those engaged in like occupation.”

See also Maynard v. B. F. Goodrich Company, 144 Oh St, 22, wherein the court approves the Malone case (supra). In the Maynard case the workman’s claim was allowed. There he received a sudden strain while working upon moving an unusually large roll of material.

Still more recent is the Supreme Court’s pronouncement in Gerich v. Republic Steel Corporation, 153 Oh St, 463.

Syllabus (1) “Under the Ohio Workmen's Compensation Act. to entitle a workman to compensation for injury, he must suffer a traumatic injury in the course of and arising' «wit of his employment other than an injury which may occur in the regular course of nature from the usual and normal activities of his employment.”

(2) “It is the duty of a party on whom the burden of proof rests to produce evidence which furnishes a reasonable basis for sustaining his claim. If the evidence so produced furnishes only a basis for a choice among different possibilities as to any issue in the case, he fails to sustain the burden as to such issue.”

(3) “Evidence which shows simply that an injury either may have been the result of an accident in the course of and arising out of employment or may have been suffered in the course of employment in the regular course of nature in the usual and normal activities of the employment is not evidence to support a workmen’s compensation claim." (Emphasis by the court.)

On page 468 of the Gerich opinion, paragraph 3, Judge Hart says:

“There was no evidence that any accidental or unusual incident occurred, or that at the time Gerich collapsed he was putting forth any unusual exertion different in kind from that usually exerted by him.”

The Supreme Court reversed both lower courts and found for the defendant company.

The record may show that the court overruled the defendant’s motion to direct at. the close of plaintiff’s case and at the close of all the evidence, and took the case under advisement.

The court finds that upon consideration of all the evidence before the court, and even considering that of plaintiff not admitted but proffered by the plaintiff, the plaintiff has failed to prove that the deceased suffered an accidental injury.

Considering all the evidence most favorably to the plaintiff’s case, if decedent was injured at all by any such fumes, it would constitute an occupational disease claim and not one for accidental injury.

The record most favorable to plaintiff showed no sudden, unforeseen, unexpected, unusual happening at all. Whatever did occur, if any injury occurred to plaintiff’s decedent, it was such as would occur in the regular course of nature from the usual and normal activities of his employment. In the court’s opinion it was to cover such occurrences that the occupational disease part of the statute was enacted.

The court also doubts that the plaintiff has proved by a preponderance of the evidence that there was a proximate causal relationship between what happened and the decedent’s death due to lobar pneumonia. (See McNees v. Cincinnati Street Railway Company, 152 Oh St, 269.)

In the opinion of the court the defendant did not have the i-ight to call Dr. Lash, the deceased workman’s personal doctor. The relationship was privileged by virtue of §11494 GC, and there was no waiver of that privilege.

See 133 Oh St, 1, Harpman v. Devine, etc; 135 Oh St, 491, Baker v. Industrial Commission: 89 Oh St, 381, Ausdenmoore, et al, Executors, v. Holzback.

Accordingly the court cannot consider Dr. Lash’s testimony, for any purpose.


author: Per CURIAM.

text:
    ALLAMAN et, Plaintiffs-Appellees, v. SLOTHOWER, Defendant-Appellant.
    Ohio Appeals, Second District, Montgomery County.
    No. 2042.
    Decided November 30, 1950.
    Ernest L. Greene, Dayton, for plaintiff-appellee.
    John J. Hoover, Dayton, for defendant-appellant.
   OPINION

Per CURIAM.

This is an appeal on questions of law from the judgmenof the Common Pleas Court affirming a judgment of the Municipal Court of the City of Dayton granting a writ of restitution to plaintiff for premises as prayed in the first cause of action and entering judgment for plaintiff against the defendant in the sum of $83.84 on the second cause of action and statement of claim.

Eight errors are assigned, which we will state as we discuss them. The first and second errors assigned are that the three-day notice to vacate was signed “R. F. Allaman,” using his initials only and not his Christian name. There is an early case in Ohio, Herf & Co. v. Peter Schulze, et al., 10 Ohio 263, which supports the contention that in actions on certain written instruments the cause must proceed in the Christian name and not by initials only. However, the question was raised in this case before trial had. Here it is urged only after the defendant had answered and gone to trial Assuming, but not conceding, that the action should have been instituted in the Christian name of plaintiff, R. F. Allaman, no prejudicial error resulted thereby. It may be oí interest to note that the Herf case, as to the proposition here under consideration, has not been cited in any reported case in Ohio since its decision. •

The third assignment is that the amount of the judgment is too large and contrary to §11281 GC. The statement of claim is dated June 24, 1948. The prayer of the petition was for judgment for $1.67 per day for rent and use and occupancy from June 1, 1948 until vacated. The amended statement of claim prayed for $66.04. No other or further statement was filed, but the judgment was entered for $83.84. Manifestly this judgment included rental due up to the date of trial. There is no authority for a prayer such as set forth in the statement of claim. Although it amounts to very little difference, the rental contract was not for $1.67 per day, but for $50.00 per month. $1.67 per day would he correct for a 30-day month, but it would be too much for a 31-day month. If rental from the date the petition was filed to the date of trial was to be included in the judgment plaintiff should have filed a supplemental statement of claim. In 31 O. Jur. 539. it is said:

“Pleadings, unless supplemental, and averring matters arising since the commencement of the suit, * * * relate to the time of, the filing of the petition; in ordinary cases there is nothing that authorizes pleading of facts that will not exist in the future."

Citing Cozart v. Cozart, 22 O. N. P. N. S. 483.

“The rights of parties as they exist at the commencement of an action should prevail unless a.subsequent change in those rights be shown by supplemental petition.”

Lake Shore & M. S. R. Co. v. Hutchins, 37 Oh St 282. See. also Horwitz v. Murri, 7 Abs 268. It is a rule generally that a party cannot put in issue rights acquired pendente lite unless he files a supplemental petition. 41 Am. Jur. 475; Yeager v. Yeager (Cal.) 166 A. L. R. 664.

Upon the statement of the pleadings the only judgment that could be rendered in this case was for the amount due as of the date of the filing of the amended statement of claim.

The fourth assignment of error is that there was no notice of the filing of the amended statement of claim served upon the defendant, and the fifth is that no summons was issued on the amended statement of claim. The defendant did not take advantage of these irregularities in a timely manner, but proceeded to trial without objection. The answer which had been filed to the original statement of claim was not reached because the defendant did not appear. Of course, an answer is not required in a forcible detention suit. Full defense can be made without it.

The sixth assignment of error is that the court granted a continuance to plaintiff’s attorney for more than eight days without bond, exceeding the time set forth by the Code. This, too, is urged too late.

The seventh assignment of error is that the defendant was deprived of his day in court by a surprise move. The cause came on for trial. Counsel for defendant protested that he was not ready to proceed. Plaintiff offered testimony to the effect that counsel had been notified of the date of the hearing four days before said date. Although there was some discussion respecting this matter no evidence was forthcoming to dispute the proof. The trial judge required the defendant’s counsel to proceed and this was done in the absence of defendant. The action of the trial judge was clearly within his discretion. The trial began about two o’clock p. m. and continued until a few minutes after four, at which time plaintiff rested. Defendant’s counsel then requested the opportunity to call his client. This was denied and the trial judge immediately announced his finding. The appropriateness of this action is not so plain. Manifestly had the defendant been present in court the trial would not have proceeded until the next morning. It would have been appropriate to say to counsel that if the defendant were in court at the opening session on the following day he would be permitted to make his defense. However, the prejudice to the defendant by the action of the court does not appear because there is no statement or affidavit in the record that he would have taken advantage of the opportunity to appear had it been accorded to him.

The other assignments of error are directed to such as appear upon the face of the record. One only is found. The action at all times is styled “R. F. Allaman and Marjorie Allaman, Plaintiffs, v. R. S. Slothower, Defendant.” The testimony. though not clear on the matter, tends to prove that R. F. Allaman was the tenant from whom the defendant rented the premises. In any event, as against the defendant, R. F. Allaman was entitled to possession. However, in the separate findings of law and fact mention is made of claim of plaintiff only and the judgment is entered for plaintiff without distinction. In this situation it is impossible to tell from the journal entry to which plaintiff reference is made in che judgment. It should be amplified.

The order of this Court will be that the judgment of the Municipal Court be modified by naming the plaintiff, R. F. Allaman, following the words “plaintiffs or plaintiff” where-ever they occur in the entry; that if plaintiff, R. F. Allaman, will enter a remittitur of all of the amount of the judgment above the sum which is due on rental from the date of default to the date the amended statement of claim is filed the judgment will be affirmed. Otherwise the cause will be remanded for a new trial. No other assignments of error are well made.

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


text:
    LIPPS, Plaintiff-Appellee, v. LIPPS et, Defendants-Appellants.
    Ohio Appeals, First District, Hamilton County.
    No. 7338.
    Decided February 27, 1951.
    Franks & Franks, Scanlon & Scanlon, Cincinnati, for plaintiff-appellee.
    J. W. Brown, Albert J. Lemer, Cincinnati, for defendants-appellants.
   OPINION

By THE COURT:

This is an appeal from an order directing J. W. Brown, Albert 3. Lemer, and Frank A. Lipps to account for rents and profits.

The plaintiff filed this action on November 11th, 1947, praying for partition of certain real estate, cancellation of a certain mortgage “and all other proper relief.” J. W. Brown and Albert 3. Lerner were not made parties to the action at that time. On August 24th, 1949, an order for partition was issued in accordance with a decree and amended decree theretofore entered. The property not being susceptible of partition in kind, an order of sale was issued on October 8th, 1949, and on November 17th, if was returned. On November 22nd, 1949, a motion to confirm and for order for deed and distribution was filed.

Thereafter, on November 25th, 1949, J. W. Brown and Albert J. Lerner filed a motion to be made parties to the action, on the ground that Frank A. Lipps had, on July 11th, 1949, transferred to them all Ms right, title, and interest in and to any and all claims that he had or might have in this litigation, or to any funds or monies that might be found due him. On the same day, the court entered an order making them parties to receive “Upon a final determination of this cause, all funds found due to Frank A. Lipps.”

On December 30th, 1949, the Court entered a decree of confirmation and distribution of the proceeds of sale, one of the items of which was a direction to pay to J. W. Brown and Albert J. Lerner the sum of $1862.74. In this decree it was ordered that “Accounting for rents and profits is left' for the further order of this Court.”

On May 7th, 1950, plaintiff filed a motion for an accounting of rents and profits, which was granted on July 21st, 1950. J. W. Brown, Albert J. Lerner and Frank A. Lipps were ordered to account for the rents and profits from the premises from November 2nd, 1944 to December 31st, 1949. It is from that order that this appeal was taken.

We have no difficulty in concluding that an accounting of rents and profits among the co-parceners is within the jurisdiction invoked by the filing of this petition, and that jurisdiction was continued by the reservation made in the decree of confirmation and distribution.

The duty to account for rents and profits is a duty owing by a co-parcener in possession to those out of possession. Sec. 12046 GC. It is clear that the order of directing Frank A. Lipps to account was correct and it is affirmed.

A different question is presented by the appeal of J. W. Brown and Albert J. Lerner. Neither was at any time a co-parcener of the plaintiff. They did not become parties to this action until November 25th, 1949, and their only interest was as assignee of the rights of Frank A. Lipps. They did not agree to assume the burden of his duty to account for rents 'for more than the five year period as directed by the order appealed from. And as the assignee of Lipps’ right they did not become charged with his duty as a matter of law any more than the grantee of mortgaged real estate is charged with the duty of paying the mortgage debt in the absence of an express agreement, of assumption.

For these reasons, the order directing J. W. Brown and Albert J. Lerner to account for rents and profits is hereby reversed.

HILDEBRANT, PJ, MATTHEWS & ROSS, JJ, concur.


author: By HOOVER, J:

text:
    INLAND PROPERTIES COMPANY, Plaintiff, v. UNION PROPERTIES, INC., Defendant.
    Common Pleas Court, Cuyahoga County.
    No. 605096.
    Decided April 17, 1951.
    Deibel, Elbrecht & Roberts, Harry Deibel, Cleveland, for plaintiff.
    Harold O. Ziegler & Sylvester Marx, Harold O. Ziegler, Cleveland, for defendant.
   OPINION

By HOOVER, J:

This is an action to establish plaintiff as a depositor and creditor of the defunct Union Trust Company and, as such, to obtain a share in the distribution of that bank’s assets. At this point we are concerned with ruling on two motions. One is defendant’s motion for judgment on the pleadings and on plaintiff’s opening statement. The other is plaintiff’s subsequent motion for leave to substitute new parties defendant and to file an amended petition. There is but one defendant, The Union Properties, Inc. Neither The Union Trust Company nor the Superintendent of Banks is a defendant...

The petition which is put to test by defendant’s motion was filed in July 1949. It alleges:

“that in the year 1933 the Superintendent of Banks of the State of Ohio took charge of said The Union Trust Company for liquidation; that the defendant Union Properties, Inc. is an Ohio corporation organized to assist the Superintendent of Banks in such liquidation, and as such liquidating agency has in its name and under its custody and control all existing assets of said The Union Trust Company, including all funds deposited with it, and is engaged in paying all creditors of said The Union Trust Company, including depositors of moneys.
“Plaintiff says further it had checking accounts with said The Union Trust Company, and in the year 1929 deposited in said accounts in its name various sums aggregating Thirty Thousand Four Hundred Eighty-two Dollars and Seventy-eight Cents ($30,482.78) no part of which has been repaid to it although on March 30, 1949, it made due demand for payment, and on April 27, 1949, its demand was refused.
“Wherefore, Plaintiff prays for judgment against the defendant in the sum of Thirty Thousand Four Hundred Eighty-two Dollars and Seventy-eight Cents ($30,482.78) together with interest.”

We need not consider all the reasons advanced by defendant in support of its motion. One arrow, if fatal, is fatal enough. The deadly defect here is plaintiff’s failure to sue "the superintendent of banks and such bank,” as required by §710-92 GC. Plaintiff says that defendant is an agent assisting the Superintendent in the liquidation. Plaintiff does not say that the defendant has supplanted the Superintendent. The Superintendent, and not the defendant, is still the liquidator. There is no authority to sue an assister in place of “the superintendent of banks and such bank.” The Ohio Banking Act provides an exclusive method of procedure for liquidation of a bank and for establishing one’s right to share as a creditor in the bank’s assets. National City Bank v. Guardian Trust Co., 13 O. O. 21, aff’d 137 Oh St 279. When the Superintendent takes charge for liquidation and when the Superintendent rejects a claim, then, in order for a claimant to establish his right to share in the assets, that claimant must obey the clear edict of §710-92 GC. He “shall bring an action against” — not the governor, not the cashier, not the janitor, not the assister — but “against the superintendent of banks and such bank.” Language could not be clearer. On that set of facts and with nothing more appearing, defendant would be. entitled to have its motion granted.

However, when the Court orally indicated that it was inclined to grant defendant’s motion, plaintiff filed a motion asking leave forthwith to substitute new parties defendant and to file an amended petition. Specifically, the plaintiff wants to take the present sole defendant (Union Properties, Inc.) out of the case and, in its place, substitute two new parties defendant, namely, the Superintendent of Banks and The Union Trust Company.

Plaintiff’s reason for wanting to substitute these two new proposed defendants in this action instead of bringing a new action against them is obvious. Sec. 710-92 GC requires that-one whose claim has been rejected by the Superintendent shall “bring an action against.the superintendent of banks and such bank, within three months after such rejection or refusal of allowance, or be forever barred from asserting the same.” Plaintiff indicates that its claim was rejected on April 27, 1949 — almost two years ago. Hence, if plaintiff were now for the first time to sue these proposed defendants in a new action, it would be barred by that - special statute of limitations. However, if plaintiff can now substitute these proposed defendants in this action and if this action can be construed as having been brought against the proposed defendants as of the time this action was originally brought, and not as of the time of substitution, plaintiff would contend that such statute of limitation is not a bar.

Sec. 11363 GC gives a trial court very broad powers with reference to amendments. It provides in part:

“Before or after judgment, in furtherance of justice and on such terms as it deems proper, the court may amend any pleading, process, or proceeding, by adding or striking out the name of any party, or by correcting a mistake in the name of a party * *

Note the qualification “in furtherance of justice.”

. It is pertinent to inquire whether by this proposed substitution of parties, the plaintiff can circumvent the statute of limitations. By syllabus three, in Beach v. The Union Gas & Electric Co., 130 Oh St 280, the Supreme Court stated the law to be:

“A court cannot, by permitting an amendment to a pleading making' or substituting a new party defendant to an action, forestall the right of such party to invoke the statutory period of limitation as a bar to the action against him. The general rule is that, when an amendment is permitted introducing a new party defendant, where the period limitation has expired between the suit’s commencement and the time the new party is brought in, such party may plead the limitation statute in bar of his liability.”

A glance at Shepard’s Citations shows that rule still stands untouched and untarnished. True, in Moherman v. Nickles, 140 Oh St 450, the court held (syl. 3):

“An amendment to a petition, in the interests of justice, reinstating a defendant who had been duly served with sum-mons within the statutory period of limitation but had been later dismissed, may be made after the expiration of the period within which the action may be brought, provided the cause of action set out in the petition is not materially changed by such amendment, even though it results in making the party complaining the sole defendant in the action. Such amendment relates back to the time the action was commenced, and the limitation is computed from that time.”

Far from overruling the Beach case, the Moherman case does not even mention the Beach case. If the Supreme Court had intended to upset the Beach case apple cart, it certainly would have made some contact with that cart. The Moherman case merely recognizes an exception to the general rule of the Beach case, i. e., in the case of a reinstatement. We have no such exception here.

Since the plaintiff would be barred by the statute of limitations even if the substitution of parties were allowed, would it be “in furtherance of justice,” to permit such substitution? We think not. It would be ah idle ceremony needlessly protracting litigation. In 67 C. J. S. 1029, Sec. 74e, it is said:

“Generally a party cannot be brought in as a party plaintiff or defendant where the cause of action as to him is at the time barred by the statute of limitations.”

It is not necessary to determine whether the present provision of §710-92 GC requiring suit to be brought within three months is applicable or whether the former provision of the same statute requiring suit to be brought in six months is applicable. Plaintiff is barred under either provision.

Accordingly, plaintiff’s motion is overruled, and defendant’s motion is granted. Plaintiff’s proposed amended petition which it filed at the time it filed its motion will be stricken from the case.


author: By PHILLIPS, PJ.

text:
    ZARLENGO, Plaintiff-Appellee, v. SNYDER, Defendant-Appellant.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3324.
    Decided June 21, 1950.
    Harry T. Rapport, W. P. Barnum. Youngstown, for plaintiff - appellee.
    Clyde W. Osborne, Youngstown, for defendant-appellant.
   OPINION

By PHILLIPS, PJ.

On the 25th day of May, 1946, plaintiff in the court of common pleas, called plaintiff in this opinion, entered into a verbal agreement with defendants, Cecelia Snyder and Isidore S. Snyder, her husband, who will be referred to herein by their surnames, to alter, improve and repair their real property situated in Youngstown, Mahoning County, Ohio, on a cost plus basis.

The contract was not completed allegedly because of defendants Snyders’ failure to permit plaintiff to complete such alterations, improvements and repairs in accordance therewith. Thereupon plaintiff sued defendants Snyder, and their co-defendants, in the court of common pleas to recover a money judgment against defendants Snyder, to marshal liens on such property, and to sell it to satisfy those liens.

During trial of that action counsel for the respective parties stipulated that “the only issues that will be tried at -this time to a jury are the issues as set forth in the first cause of action of plaintiff’s amended petition and the answer of defendant, Cecelia Snyder and Isidore S. Snyder, in answer thereto, and that all other issues be reserved for further adjudication to the court.”

On March 30, 1949, the trial judge made the following entry in that action:—

“On trial to jury. Both plaintiff and defendants move for judgment. Counsel stipulate that the Court may decide all questions of fact and law. Juror withdrawn and jury discharged. Cause submitted to court.”

The trial judge found that plaintiff’s claimed lien in the amount of $5330.06 with interest at 6% per annum from February 1, 1947, defendant Sidney G. Hill’s claimed lien in the amount of $623.88 with interest at 6% per annum from December 12, 1946, defendant Patsy Zarlengo’s claimed lien in the amount of $1073.75 with interest at 6% per annum from December 28, 1946, defendant Joseph Bloomberg’s d. b. a. R. Charles Bloomberg and Son, claimed lien in the amount of $1333.51 with interest at 6% per annum from December 28, 1946, and A. G. Sharp Lumber Company’s claimed lien in the amount of $645.90 with interest at 6% per annum from January 13, 1947, were good and valid liens upon such premises.

In the same entry the trial judge ordered plaintiff to pay to defendants-cross-petitioners Hill, Zarlengo, Bloomberg and Sharp the amounts of their judgments against plaintiff in the event defendants Snyder paid the amount of the judgment held by plaintiff against them.

The parties waived trial by jury' on the second cause of action of plaintiff’s petition, and upon hearing the trial judge entered judgment on June 2, 1949, for defendants Sidney G. Hill and Patsy Zarlengo against plaintiff upon Ms finding that their claimed liens were valid Hens against the real estate of defendants Snyder, and on June 7, 1949. overruled ‘‘all motions for new trial.”

Defendants Snyder appealed to this court on questions of law and fact “from the final order and judgments made and entered herein on the 13th day of April, 1949, and the supplemental order and judgment filed June 2, 1949; also from the order entered on the 7th day of June, 1949, overruling all motions for a new trial" as against Anthony Zarlengo only.

The appeal was not filed by counsel who tried the case in the court of common pleas properly as one on questions of law and fact. It appearing that a bill of exceptions was prepared, allowed and filed leave was granted plaintiff to refile it instanter, together with brief. The appeal was retained, argued by counsel, other than those who tried the case we review in the trial court, submitted, and will be determined as an appeal on questions of law.

Though appealing on questions of law and fact counsel who tried the case in the court of common pleas and filed defendants’ appeal claim, by assignments of error, that the trial judge erred to their prejudice “in admitting evidence offered by the appellee (Anthony Zarlengo) herein and objected to by these appellants; in refusing to admit evidence offered by these appellants; in permitting the appellee at various times to leave the stand and attempt to substantiate the allegations in his petition by recomputing and refiguring costs of labor and material; in allowing the appellee to offer certain computations in variance to the proceedings; in entering judgment without having the pleadings amended;” which latter three they contend constituted “irregularities in the trial and proceedings”; and “in directing a verdict in favor of the appellee; in rendering judgment on the pleadings in favor of the appellee herein; in granting cross-petitioners, to-wit: Patsy Zarlengo, A. G. Sharp Lumber Company, Joseph Bloomberg, d. b. a. R. Charles Bloomberg & Son, and Sidney G. Hill, liens against premises owned by these appellants.” Further they contend by such assignments of error that the “judgment of the court is against the weight of the evidence; judgment is not supported by sufficient evidence and is contrary to law”; that “the liens granted the cross-petitioners in this case are contrary to law”; that the trial judge erred “in overruling motions of these appellants for a new trial as against Anthony Zarlengo, Patsy Zarlengo, A. G. Sharp Lumber Company, Joseph Bloomberg, d. b. a. R. Charles Bloomberg and Son, and Sidney G. Hill”; and that there “are other errors manifest upon the face of the record.”

It is admitted by the respective parties that defendant Cecelia Snyder paid plaintiff $21,592.42.' There is evidence that from that amount he paid $17,133.43 for all purposes in connection with the work done on defendants’ property; that he appropriated the balance of $4458.99 to his own use.

We understand and interpret defendant’s contention as being that plaintiff is entitled to compensation on the total actual cost of the alterations, improvements and repairs made on defendants’ property, which they claim the evidence discloses was $23,093.88; on the basis of 10% on $5229.78, salaries, wages, insurance, 5% on subcontractors labor of $13,231.60, and 10% plus 10% on materials furnished by him in the amount of $73.00, a total of $1503.77.

■ Further, we interpret defendants’ contention as being that the judgment of the trial judge entered in favor of plaintiff is prejudicially excessive by reason of error of the trial judge in interpreting and applying the compensation agreement of the parties and making incorrect allowance for the amounts paid by the respective parties toward the total cost involved; that the amount of $4458.99, to which reference has been made, added to the balance of $1787.58 of the court’s judgment of $5330.00 remaining after payment of the liens in the amount of $3542.88, to which reference is made supra, totals $6246.57; and that the latter amount is the total amount of compensation paid Zarlengo if and when the judgment entered by the trial judge is paid.

As we interpret defendants’ brief filed in, and -understand the arguments made by their counsel before, this court, they contend that the judgment of the trial court entered in favor of defendant A. G. Sharp Company is excessive to the amount of $134.56, which amount represents material amounting to $52.16 called for, but not used, by plaintiff on defendants’ job, and lumber in the amount of $82.40 ordered on January 6, 1947, and delivered on January 13, 1947, after, as defendants contend, plaintiff ceased work on their property on December 20, 1946; that under the order of the trial judge “that plaintiff pay to defendants-eross-petitioners Hill, Zarlengo, Bloom-berg and Sharp, the amounts of their judgments against him in the event defendants paid the amount of the judgments held by him against them contingently, prejudiced them to the extent of $134.56, to which extent the judgment of the trial court entered in favor of defendant Sharp they contend is prejudicially erroneous to them.

Plaintiff-appellee’s contention of the amount due him, and which comes to within $11.40 of the amount of the judgment entered by the trial judge, is shown by the following computation lifted from his brief:—

“Let us assume the figure given by appellant as to the amount expended for labor, to-wit: $ 4,754.00
(Although there was submitted in evidence ‘Plaintiff’s Exhibit 22’ which is an itemized statement of all labor and which the evidence shows was submitted to appellant, showing the total costs of labor as being $5,933.66)
According to ‘Plaintiff’s Exhibit No. 20’ the total cost of labor and material furnished through subcontractors and materialmen is as shown in the first column of ‘Plaintiff’s Exhibit 20’ in the sum of 21,732.40
or a total of $26,486.40
The Court was well within his province in concluding from the evidence that plaintiff was entitled to recover in addition to' the above amount, as being 10% on labor, the sum of 475.00
As being 10% on labor and materials for overhead, the sum of 2.651.00
As being 10% on all labor and materials as profit the sum of 2.651.00
Total amount due to plaintiff 332,263.40
There is no dispute as to the credits to be given appellant which are as follows:
Amount paid to Zarlengo ' $21,592.00
Amount paid to Bertolini 3.387.00
Amount paid to Billig 285.00
Amount paid to Kramer 1.658.00
Total credit to Snyder 326,922.00
Therefore, the total charges as against Snyder are $32,263.40
The total credits to Snyder 26,922.00
Leaving a balance due to the contractor, plaintiff below, of $ 5,341.40'’

It. is conceded that plaintiff was to furnish the labor, order the material and negotiate the sub-contracts necessafy to effect the alterations, improvements and repairs to defendants’ property desired by defendant Cecelia Snyder; and that the liens of defendants Hill, Patsy Zarlengo and Charles Bloomberg and Son, as stated supra, are correct.

The bill of exceptions submitted to us for review is reasonably voluminous, the transactions between the parties involved, the records of which apparently were not kept accurately; and we cannot make detailed reference to them and attempt to write an understandable opinion and keep it within reasonable length.

As the result of a careful analysis of the evidence presented to us for review we conclude that the trial judge did not err to defendants’ prejudice in finding that in accordance with the agreement between plaintiff and defendants Snyder plaintiff is entitled to recover from defendants Snyder 10% of the amount of salaries paid, 10% for insurance on the amount paid for labor, 10%. of the amount of the materials used in the improvement, alteration and repair of defendants’ property plus an additioned 1 Q% on plaintiff’s own material furnished by him, and 10% on all work done by such subcontractors, which work plaintiff supervised.

After studying the evidence with reference to the lien of defendant Sharp we conclude that it is excessive to the amount claimed by counsel for plaintiff, and that the trial judge erred to plaintiff’s prejudice in finding the lien of defendant Sharp a good and valid lien in the amount of S645.90 instead of §511.34.

Since defendants’ present counsel do not rely on the assigned errors of "irregularities in the trial and proceedings” had in the court of common pleas in the admission or rejection of evidence in the respects claimed by defendants; nor “in permitting the appellee to leave the stand and attempt to substantiate the allegations in his petition by recomputing and refiguring costs and labor and materials”; nor in "allowing the appellee to offer certain computations in variance to the proceedings”; nor “in entering judgment without having the pleadings amended”; nor-“in directing a verdict in favor of the appellees”; and do not contend that there are “other errors manifest upon the face -of the record.” we do not pass upon these assigned grounds of error.

The judgment of the trial court is modified to the extent mdieated in the docket entry of this court and this opinion, and as modified is affirmed.

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