author: By FRIEBOLIN, By McNÁMEE, District Judge.

text:
    In re THE BROWNING CRANE & SHOVEL COMPANY, Debtor.
    United States District Court, N. D. Ohio, E. D.
    No. 70895.
    Decided July 8, 1955.
    Sidney D. L. Jackson, Jr., James P. Garner, George L. Ford, Hostetler & Patterson, Cleveland, for Dart.
    Bernard H. Schulist, Andrew J. Mc-Landrich, Cleveland, for debtor in possession.
   OPINION

By FRIEBOLIN,

Referee in Bankruptcy:

To the Honorable Judges of the District Court:

C. D. Friebolin, one of the referees of said court, do hereby certify that, in the course of the above entitled proceedings before me, I considered the petition for reclamation of the Dart Truck Co. (hereinafter sometimes referred to as “Dart”) for possession of two crane carrier chassis (sometimes referred to as “chassis” or “crane carriers”) claiming title thereto and alleged to be in possession of the debtor at the time the debtor filed its petition for an arrangement under Chapter XI of the Act, 11 U. S. C. A. §701 et seq., and continuing in the possession of the debtor-in-possession when appointed as such.

The debtor-in-possession (sometimes hereinafter referred to as “Browning”) filed answer denying Dart’s title and right to possession. No issue was made of actual possession by the debtor nor of the debtor-in-possession.

After extensive hearings had, oral argument and briefs presented, I made findings of fact and conclusion of law, and thereon entered an order denying and dismissing Dart’s petition for reclamation. Said order is transmitted herewith and marked Ex. A.

The question presented is, primarily, whether Dart had title to the two crane carrier chassis, on Dec 9, 1953, which was the date upon which the debtor filed its petition for an arrangement and when the debtor was duly appointed debtor-in-possession, by this court.

The collateral, but more immediate questions were (1) whether the transaction, the contract of sale, disregarding the Ohio Vehicle Law, vested title in the debtor about Nov. 6, 1953; and (2) whether under the Ohio Vehicle Law, such title in the two chassis, vested in the debtor conceding that possession was delivered to the debtor.

Since my findings of facts and conclusions of law embody a description of the pleadings, the issues presented, and a general summary of the evidence, it will probably be sufficient to embody the document herewith; a complete transcript of the evidence is transmitted herewith, marked Ex. D; the exhibits are also transmitted herewith, marked Ex. E.

THE PLEADINGS

Dart filed a petition for reclamation alleging that on or about Nov. 6, 1953, Dart delivered possession of the two chassis to Browning; that they were delivered under an agreement that Browning deliver to Dart, chattel mortgages on said chassis and notes securing the purchase price, and upon receipt thereof to deliver title of the chassis to Browning.

It is further alleged that Browning never delivered the required mortgages and notes and that Dart had not delivered title to the aforesaid chassis; that the price of one chassis was $12,800, upon which Browning paid $1,280 in cash, leaving a balance of $11,520; and the price of the other was $13,200, of which $1,320 was paid, leaving a balance due of $11,880, to which Dart is now entitled.

It is alleged, also, that one chassis — price $12,800 and $11,520 due— was sold by Browning before the arrangement proceeding was begun and that the debtor has agreed with Dart that, in consideration of Dart’s releasing such purchaser from any claim Dart might have, debtor has agreed to segregate the first $11,520 of the sale price to await determination by this court of the rights of the parties hereto.

Dart prays for possession of the one chassis in debtor’s possession at the daté of the bankruptcy proceeding (Dec. 9, 1953) and for an order to pay to it the sum of $11,520 received upon the sale of the other chassis, as stated in its petition herein.

Browning in its answer admits the sale of the second chassis and the agreement to segregate the money received upon its sale as stated in' the Dart petition; admits the sale and delivery of the two crane carrier chassis, denies any agreement to give a mortgage as security, denies nondelivery of title and Dart’s right to possession.

THE ISSUE

As appears from the pleadings, the evidence and briefs of counsel, the primary issue is: In whom was title to the two chassis at the date of bankruptcy, that is, on Dec. 9, 1953? In turn, this depends upon (1) the terms of the agreement of purchase between the parties, (2) its effect, in view of the bankruptcy proceedings and possession by the debtor a’t or before that date, and (3) its effect in view of the Ohio Certificate of Title Law.

THE EVIDENCE — GENERALLY

‘The article in question: A chassis or carrier chassis, as here involved, is the underpart, the base or frame, of a truck crane or power crane as manufactured and sold by Browning. This carrier chassis, like an ordinary automobile chassis, has wheels, gas tank, lights, and a cab, etc. But it also has certain other distinctive features built according to specifications furnished by Browning (Ex. 119) which will adapt the chassis to the purpose for which Browning makes a truck crane which it sells. This distinctive equipment consists of substantially heavy material — weight sometimes 25 tons — outriggers and screw jacks as shown by Ex. 2, 117 and 201. The completed truck crane as factored and sold by Browning is shown in Ex. 10, 11 and 116.

' Both parties introduced oral and documentary evidence relating to the purchase agreement for the two chassis. There is in this respect a conflict of testimony in respect to Dart’s claimed agreement of a mortgage as a condition precedent to passing title.

Upon the question of the effect of the delivery of possession of the chassis to the debtor prior to bankruptcy and its effect in view of the Ohio Certificate of Title Law, §4505.01 et seq, R. C., both parties called witnesses respecting the enforcement of that act in connection with vehicles of this kind, and some paper exhibits. In essence this involves interpretation of certain sections of that act. Oral testimony on behalf of the petitioner, Dart, was given by three witnesses, including 15 paper exhibits; on behalf of the debtor' by five witnesses, including 13 paper exhibits. The transcript comprises 355 pages, with 28 paper exhibits.

FINDINGS OF FACT

I find that:

1. On or about Oct. 15, 1953 (see Webster R. 24 and Ex. 101 and 102) Mr. Gilbertson, purchasing agent for Browning, in Cleveland, called Dart at Kansas City, by telephone and spoke to Mr. Webster, treasurer of Dart, advising him that Browning needed two more crane carrier chassis similar to the one previously purchased by Browning from Dart. This conversation finally culminated in the oral agreement to purchase the two carrier chassis involved in this proceeding.

2. Prior thereto, Browning had purchased from Dart four carriers all upon open account with Vz per cent discount if payment made in 10 days. The first purchase was in April, 1953 — there were two purchases in April; one in June, 1953 and one in August. The first three were paid for promptly; the first two within the discount period. The August purchase was not paid for until Oct. 1953.

3. In the telephone conversation of Oct. 15, 1953, Mr. Gilbertson for Browning told Mr. Webster of Dart that Browning needed 30 days for payment “to accommodate this sale” (R. 25). Mr. Webster understood that Browning’s reason for wanting 30 days after delivery for payment, was to enable Browning “to complete their production and their financing sources, and in return to pay us.” (R. 36) Mr. Webster told Mr. Gilbertson that Dart would not sell on open account to be paid for in 30 days for the reason that it was not Dart practice and for the further reason that Browning had been slow in payment for the last carrier (R. 25, 105). A tentative proposal, to be confirmed by the respective companies, was suggested: Browning to pay 10% cash with the order and a promissory note, payable in thirty days after delivery, for the balance secured by a chattel mortgage upon the vehicles. (R. 25) Contra testimony by Mr. Gilbertson (R. 105, 113, 120-128).

4. On or about Oct. 19, Mr. Gilbertson called Dart by phone, and the tentative proposal, having been approved by the officers of the respective parties, was confirmed by Mr. Webster — and in part by Mr. Ross for Dart — and Mr. Gilbertson (R. 26, 106, Ex. 112, 118). Mr. Gilbertson gave Dart Browning’s purchase order numbers. (R. 106, 45) Dart proceeded at once to manufacture the carrier chassis (R. 30).

5. Oct. 26, 1953 — the delay is explained by Mr. Gilbertson (R. 107) — Browning sent two purchase orders of said date (Ex. 104 and 105) to Dart with a check for 10% of the purchase price. Each order stated: “The balance to be covered with a 30 day note due 30 days after.' shipment of completed vehicle from your premises. This confirming arrangement made with your treasury department. Confirming to Mr. Ross— phone 10/19/53. Exempt from sales and use tax — State of Ohio * * * Shipp Schedules: Date 11-5-53.” There was no response by Dart to the failure to include the word “mortgage” with a note.

6. On Oct. 29, 1953, Dart, by letter of that date signed by W. E. Ross, sales engineer of Dart, acknowledged receipt of the two purchase orders and checks. The letter also stated that they were planning delivery .by Nov. 5 and that Mr. Webster “will handle the necessary arrangements for handling the notes on these two orders.”

7. On or about Nov. 6, 1953, Dart made delivery of the carrier chassis, that is, turned them over to a drive-away concern which transported them to Browning. (R. 30) This required, normally, four or five days (R. 31). They were delivered to Browning Nov. 11 (R. 1.12; Ex 107 and 108).

8. On Nov. 6, Dart sent invoices of that date to Browning (Ex. 107 and 108); they merely describe the property, referred to Browning’s Order Number and date of shipment and the price, no item of excise tax was listed thereon. (Ex. 107 and 108.) Dart also made out a “Manufacturer’s Statement of Origin to a Motor Vehicle,” as of that date directed to Browning, describing, respectively, these two “Crane carriers.” These statements certify that the vehicles described, the property of Dart, “has been transferred this 6th day of Nov. 1953 to Browning Crane & Shovel Co., * * They were not then nor at any other time delivered to Browning, remaining in the possession of Dart.

9. It had been the practice of Dart to prepare .and deliver such manufacturer’s statements to purchasers, including Browning, with the invoice in open account transactions (R. 28); they were withheld in security transactions (R. 28). Dart furnished the statements in all sales of its vehicles regardless of the customer or the state in which he lived (R. 29). Browning customarily received such statements from suppliers of trucks (R. 128).

10. Dart intended to hold the Manufacturer’s Statement of Origin until receipt from Browning of the note and mortgage which the latter was to execute and deliver.

11. On Nov. 13, 1953, Dart mailed a letter of that date to Browning CEx. 5) enclosing a note for the balance due of $23,426.00 and a mortgage covering the two carrier chassis, asking that Browning execute them with proper acknowledgement on the reverse side of the chattel mortgage and return them promptly. Attention was called to the fact that these documents bear date of Nov. 14, 1953, rather than the date of invoice (Nov. 6, 1953) “to allow for time elapsed in delivery.” (Ex. 6 and 7, R. 36.) The note bears the notation that it is to be secured by chattel mortgage. (R. 32, Ex. 6.) Browning received the letter with the enclosed note and mortgage.

12. On Nov. 24, 1953, not having heard from Browning, Mr. Webster wired Mr. Gilbertson (Ex. 8) asking “when we will receive documents sent to you Nov. 13 for execution.” On Nov. 25, 1953, Mr. Gilbertson wired Dart in reply stating that “notes will be mailed to you Friday, Nov. 27” (Ex. 9).

13. At the time Browning received the letter of Nov. 13, enclosing the documents from Dart, Mr. Gilbertson took the note and chattel mortgage to Mr. Carey (referred to as Barey in transcript), the president of Browning, for signature (R. 26). Upon receiving Dart’s letter of Nov. 24, 1953, Mr. Gilbertson was alerted to the fact that they had not been signed. On Dec. 1, 1953 Mr. Gilbertson called Mr. Webster and told him that the papers were still on Mr. Carey’s desk; that he had tried to get them signed and that Dart had better send a representative to call on Mr. Carey (R. 35). Before Dart found time to act, the petition for an arrangement was filed.

14. When the purchase agreement was made on October 19, 1953, Dart knew that Browning intended, upon delivery of the carrier chassis, at once to equip them with their peculiar mechanisms and devices and to .sell them or dispose of them in some manner in order to obtain the money in order to pay Dart within the thirty day period (R. 36). Dart delivered them with that understanding, which involved passing of title. Dart intended to deliver the Manufacturer’s Statements of Origin upon receipt of the note and mortgage (R. 68-70).

15. The carrier chassis were built by Dart according to the specifications submitted by Browning (Ex. 119) and proceeded to build them at once after the conversation of Oct. 19, 1953.

16. These carrier chassis were built and designed for and adapted to the installations by Browning of its own mechanisms to complete a truck crane or power crane; they were not designed for the purpose of hauling, general highway transportation, or other purposes; they were not adaptable, practically, for any other purpose (R. 62-64).

17. These carrier chassis could be moved by their own power over the highways. They were driven by Dart, rather by the transit concern employed by Dart, from its place of business and delivered to Browning. In such transit the transit concern obtained permits for that purpose. (R. 146, Ex. 115).

18. These carrier chassis, after delivery to Browning, were factored into a Browning Truck Crane and were not used for any other purpose. As such truck crane, they were intended to be moved from place to place over the highway to the place where they performed their particular function as power truck cranes.

18%. The cranes built by Browning upon the chassis involved herein —not the chassis as such — were not used in construction work.

19. It was not the custom of Browning, over many years of activity in selling their power cranes, to obtain Manufacturer’s Statements of Origin (although the suppliers of trucks customarily supplied such statements, R. 128), nor to deliver to buyers of their cranes, certificates of title as they are described in the Motor Vehicle Law of Ohio. They did usually deliver to the buyer certificates of weight (R. 78; Ex. 120) for purposes of taxation.

20. Enforcement officers of the Ohio Motor Vehicle Law have no rule nor practice respecting the necessity of delivery of Manufacturer’s Statements of Origin to pass title to buyers from a manufacturer, of carrier chassis. They had no knowledge of the issuance of a certificate of title for a crane carrier.

CONCLUSIONS OP LAW

1. Browning and the debtor in possession, being in possession of the carrier chassis (as part of a Browning Truck Crane), the burden of proof is upon Dart, the reclaiming petitioner, to establish its title and right to possession of these chasis.

2. The debtor in possession stands in the position of a trustee in bankruptcy — Section 342 of the Bankrupcy Act, 11 U. S. C. A. §742. As such, he is in the position of a creditor vested, as of Dec. 9, 1953, with all of the rights, remedies and powers of such creditor then holding a lien upon all of the property of the debtor in its possession or control. Section 70, sub. c. of the Act, 11 U. S. C. A. §110, sub. c.

3. Dart under its agreement of sale, intended to sell the two chassis to Browning, payable within 30 days and the execution of a mortgage after title passed to the purchaser. The giving of the note and mortgage was not a condition precedent to passing title. If that had been Dart’s intention, it was waived by its conduct as appears from the finding of facts. Title as well as possession passed to Browning prior to Dec. 9, 1953.

4. That Dart’s intention was not to retain title is evident from its knowledge as testified by its own witness, that Dart knew that Browning would need the property and necessarily, title, in order to obtain the money or the financing in order to pay for the chassis. This clearly implied that Browning was to equip the chassis with its own mechanisms and devices and to dispose of the completed truck crane by sale if necessary.

5. Dart would have an equitable lien — at least upon the chassis still in possession of Browning on December 9, 1953 — by reason of its agreement for a mortgage upon both of them, except for the fact that on Dec. 9, 1953, the property came into the custody of the Bankruptcy Court and the debtor in possession was endowed with the title and rights of a levying creditor.

6. In the position of a levying creditor, Dart’s agreement for a mortgage is not valid against a debtor in possession. The mortgage was void because not filed for record to perfect it against a levying creditor.

Possession by Dart prior to Dec. 9, 1953, would not have made the mortgage vulnerable on this ground.

7. Dart contends (1) that these carrier chassis are “motor vehicles” as defined in the Ohio Motor Vehicle Act and (2) that accordingly, under such act, no title to such chassis can be held to have passed to Browning.

The two sections relied upon by Dart are §4501.01 R. C., which defines the term “motor vehicle” and §4505.04 R. C., which provides in substance, that no court in any case at law or equity shall recognize the right, title, claim or interest of any person in or to any motor vehicle sold or disposed of, or mortgaged or encumbered, unless evidenced by a certificate of title or a manufacturer’s or importer’s certificate issued in accordance with the motor vehicle law. Immediately prior to this provision, the section says that no person acquiring a motor vehicle from the owner whether the owner be a manufacturer, dealer or otherwise shall acquire any right, title, claim or interest in or to said motor vehicle until such person has had issued to him a certificate of title to said motor vehicle or delivered to him a manufacturer’s or importer’s certificate for it; nor shall any waiver or estoppel operate in favor of such person against a person having possession of such certificate of title or manufacturer’s certificate for said motor vehicle.

8. These carrier chassis are not “motor vehicles” within the definition as given in §4501.01 R. C.' They are not designed for general highway transportation, nor were they used in general highway transportation.

9. When all of the sections of the Motor Vehicle Act are read together, it is evident that the purpose of the definition of “motor vehicles” was to exclude vehicles, even though motor driven, which were not habitually and customarily in the performance of their function and purpose, operated and driven on the public highways. These carrier chassis as such were clearly not intended to be, nor actually, operated on the highways. The only time that these chassis as chassis were driven on the highway was when they were driven from the plant of Dart to the plant of Browning.

10. In this reclamation petition, although Dart may ask for delivery to it of a completed truck crane, the only articles that it sold or otherwise disposed of to Browning were two chassis. Their manufacturer’s certificate described only the two chassis.

11. In maintaing the allegations of its petition for reclamation, Dart has not, as provided in §4505.04 R. C., introduced in evidence a certificate of title to itself of these chassis, nor a manufacturer’s certificate to itself of these articles. This section purports to say that no court may recognize its title or claim in the absence of such evidence.

12. The petitioner has not sustained the allegations of its petition, and its petition should be dismissed.

COMMENT

1. It is only with respect to the agreement of sale and the alleged requirement of a mortgage back to Dart that there is any substantial conflict as to facts.

Both parties were rather ambiguous in referring to it in their writings (see exhibits heretofore mentioned). I have found that Mr. Webster’s oral testimony on that point is the more credible. Mr Gilbert-son, for Browning, seemed less sure because the uncertainties of financing weighed more heavily on his mind. The fact that when the letter from Dart with note and mortgage was actually received by Mr. Gilbert-son and no question or objection was raised, seems to substantiate this finding. (Finding No. 13.)

2. That the execution of the note and mortgage by Browning were not conditions precedent to transfer of title, appears quite evident from the entire transaction and the conduct of the parties after the sales agreement was made.

Sec. 1315.19 R. C. expressly provides that in a contract for specific goods, the property in them is transferred to the buyer at such time as the parties intend it to be transferred. Also, that for the purpose of ascertaining the intention, regard shall be had to the terms of the contract, the conduct of the parties, usages of trade and the circumstances of the case.

The conduct of the parties, their own interpretation of the contract, is usually the most persuasive. In the first place, of course, Browning could give no mortgage until it had title. But Dart might have exacted a contemporaneous exchange — it did not. Immediately, after Oct. 19 it began to manufacture the chassis and delivered them without requesting the note and mortgage. More relevant is the fact that Dart was told, and knew, that within the thirty day period, Browning intended to process the trucks, that is, to use the chassis and proceed with its business in order to get its money out of the completed power crane. Such conduct is inconsistent with any intention not to pass title to the chassis. Clearly, Browning never intended that the property in these chassis should not pass when delivered. Cases cited by counsel seem not to require any other conclusion under the facts and circumstances. Moreover, not until the petition herein was filed was Browning ever expressly advised or reminded that the property, the title, in the chassis had not been transferred.

3. With respect to the right, title and remedies of a debtor in possession, little need be said. Dart seems to have abandoned any challenge in this regard. In any event it is clear that a debtor in possession is, in legal effect, in the position of a trustee in bankruptcy. Section 342 of the Bankruptcy Act. 8 Collier on Bankruptcy (14 Ed.) p. 802. As such, he may assert the rights of a levying creditor as of Dec. 9, 1953.

4. Whether or not these two chassis or carrier chassis were, by express statutory definition, “motor vehicles” proved to be a perplexing question to the court — and seemingly also to counsel.

If these chassis were within the definition of a “motor vehicle,” that is a vehicle propelled “by power other than muscular power or power collected from overhead electric trolley wires, except * * * power shovels, power cranes, and other equipment used in construction work and not designed for or employed in general highway transportation, well drilling machinery, ditch digging machinery * * *” — they were subject to the various provisions in the Motor Vehicle Act.

It seems evident that when Browning took these chassis and, using them as a base, manufactured a power crane, the latter was excluded from the definition of a motor vehicle. (Sec. 4505.01 R. C.); note 1, also). Can it be said that the chassis alone, which became a sort of framework for the contemplated article or vehicle: the power crane, can be held not excluded? It doesn’t seem to make sense.

It does seem, reading the various sections of this act, the purpose of the entire act and the intention to include only motor vehicles which in pursuance of their chief purpose, design, and function customarily use the highway, that these chassis are not within the definition of motor vehicle.

These chassis, as such, used the highways just once: when they were driven from Dart’s place of business to that of Browning. They were made by Dart, explicity and specifically designed for the building and completion of a power crane, which latter clearly was excluded from the definition. Certainly, by merely looking at these chassis any one could see that as they stood and traveled the highway, they were not designed nor adapted for nor employed in, general highway' transportation. It is motor vehicles designed for or employed in general highway transportation which it is intended should be governed by the provisions of the Motor Vehicle Act.

Counsel have found no case in point, and I have found none. Counsel for Dart have cited a number of cases but they refer to a completed vehicle and using the highway for the chief purpose for which it was built. Those instances would be analogous to the case at bar if we were discussing the question of exclusion of Browning’s power crane from the definition; that is not our question. We are concerned with a chassis admittedly manufactured for and designed to be part, the bottom part, of a power crane which latter, as such, is not involved.

For example, in Burdett Oxygen Co. v. Kauer (1955), 117 N. E. (2d), 211, the question at issue was the weight of a motor vehicle for purposes of taxation. The facts were stipulated. The court held that certain articles were inherently truck equipment and others not.

In State ex rel. Yontz v. West (1938), 61 Oh Ap 382, 12 O. O. 506, 22 N. E. (2d), 645, a taxpayer brought suit in mandamus against the registrar of motor vehicles to require him to collect a license tax from the owners of a cement-mixing vehicle. The writ was granted, the court holding that the vehicle — it was a complete vehicle performing as such— was not excepted from the definition of motor vehicle, because it was not a “power shovel or power crane used in construction work and not designed for or employed in general highway transportation.”

After stating that a license tax is to be devoted to purposes incidental to maintaining the highways and incidental purposes, the court says this vehicle was a mixing device mounted on a chassis, made more efficient because of its ready transportation of cement to the joto; that transportation over the highways and streets is an essential element of the economics to be secured by the use of the mixture which is already mixed or mixed during transportation. It is evident that this case is far from being relevant to a mere chassis that has no purpose except to become part of a power crane.

State ex rel. Tejan v. Lutz (1934), 31 N. P. (N. S.), 473. In this case the petitioner sought a writ of mandamus to require the registrar to issue licenses for plaintiff’s trucks. The issue related to the weight of the trucks as trucks with their inherent full equipment. The question was similar to that in the Burdette Oxygen case, supra. No chassis was involved, and no question of exclusion of a particular kind of vehicle.

Dart also cites and quotes at some length from a New York case: People v. Ward, Inc. (City Court of Rochester 1947), 189 Misc., 288, 74 N. Y. S. (2d), 181 (Dart reply brief Aug. 4, 1954, page 6). Defendant was charged with violation of the N. Y. Vehicle Law for operating a motor vehicle without license plates. He claimed that the vehicle was a “tractor crane” and therefore excepted. Apparently the judge found the vehicle not exempt, chiefly because it had been “refined” to increase its mobility and speed of movement rather than its stability while at a particular location.

In some respects the vehicle in question resembles the Browning Power Crane. It does even remotely resemble the two chassis which are the subject of the case at bar. It might be mentioned that a later case in New York—Peoples v. Felder (Mag. Ct., 1952), 116 N. Y. S. (2d), 39, 43, the court declined to follow the Ward case (as well as the Cox case: People v. P. T. Cox Const. Co., 172 Misc., 244, 15 N. Y. S. (2d), 756, cited in Ward) stating that in the meantime the legislature had expressly exempted “truck cranes” from the Motor Vehicle Act — as the Ohio law does today.

In the Felder case the “tractor crane” described was held exempt although it was merely a tractor the front end of which had a shovel attachment; it was an “instrument [in] a complete integrated unit * * *. It is adapted only for restricted uses. It does not carry passengers or materials * * *. It does not move over the highways in the accepted sense that a true motor vehicle does. * * * It is a highly specialized piece of machinery. Its use of the highways is only incidental in going from one job to another and in moving about in the performance of its work. * * *” it is a power shovel mounted on a truck.

In Liberty Mutual Insurance Co. v. Dooley Electric Co. (Sup. 1954), 133 N. Y. S. (2d), 785 the Ward case is also cited but merely to emphasize that the legislative amendment had expressly excepted truck cranes from the Motor Vehicle Act.

Similarly the N. Y. Court of Appeals, in People v. Jarka Corp. (1941), 285 N. Y., 548, 33 N. E. (2d), 239, held a tractor crane was not within the definition of a motor vehicle. Again this was a complete vehicle and not merely a chassis made for a special purpose.

5. There are several opinions by the Attorney General of Ohio which shed some light on the question, although not exactly in point. They do, to a degree, indicate the legislative intent of excepting from the definition of a “motor vehicle,” vehicles designed and used for a specific, a dedicated purpose which does not primarily involve the general use of the highway. The chassis herein involved were so designed and were not used for any other purpose.

6. Conceding that there is no express provision in the Motor Vehicle Act which would exclude from the definition of motor vehicles, a chassis specially designed for ultimate use and incorporation in a power crane, the fundamental purpose of the entire Motor Vehicle Act may be considered by a court. Also, the court may also consider the manner of administration of the law.

In the case at bar both parties called as witnesses, officials in charge of administration. As appears from finding of fact No. 20 they knew of no instance in which chassis such as those herein involved were required to comply with it.

Both of these two features are touched upon in the well-considered opinion in State ex rel. Tejan v. Lutz, supra. The court said: “Courts will not follow the letter of the statute when it leads away from the true intent and purpose of the legislation and to conclusions inconsistent with the general purpose of the Act.”

Again: “While it does not appear to be absolutely necessary to have recourse to administration practices as an aid in interpreting the law, the relator and defendant have referred to them and this court does not wish to ignore them.”

To repeat, it would seem contrary to the underlying purpose of the Motor Vehicle Act, to hold that a chassis admittedly designed to become the base of a power crane (and in fact later so used) driven on the highway to fulfill its purpose, is a motor vehicle and not excepted by the definition, when the power crane, for which it was designed, is clearly excepted.

OPINION

By McNÁMEE, District Judge.

The petition for review presents novel and interesting questions of fact and law which were decided adversely to the petitioner by the referee.

After a careful review of the record I am of the opinion that the decision of the referee must be affirmed. The referee held, in effect, that the two crane carriers in question were components of “power cranes” — which are specifically excepted by statute from the legislative definition of “motor vehicles.” This was correct. The crane carriers are embryonic power cranes and in their undeveloped state are within the exception that applies to the completed unit. The delivery of a certificate of title or Manufacturer’s Statement of Origin was not necessary to transfer title.

On the issue whether irrespective of the Motor Vehicle Law the parties intended to transfer title to Browning, the referee made findings which support his conclusions of law. He held: “The giving of a note and mortgage was not a condition precedent to passing title” and that “If that had been Dart’s intention, it was waived by its conduct as appears from the findings of fact. Title as well as possession passed to Browning prior to December 9, 1953.” See 46 Am. Jur., p. 612, Sec. 446, id., p. 613, Sec. 488.

There is a rational basis in the evidence for the referee’s determinations, and his decision is affirmed.

      . (Emphasis supplied), §4501.01 R. C.: “Definitions * * * (A) ‘Vehicles’ means every thing on wheels or runners, except vehicles operated exclusively on rails or tracks or from overhead electric trolley wires * * * (B) ‘Motor vehicle’ means any vehicle propelled or drawn by power other than muscular power or power collected from overhead electric trolley wires, except road rollers, traction engines, power shovels, power cranes, and other equipment used in construction work and not designed for or employed in general highway transportation, well drilling machinery, ditch digging machinery, farm machinery * *

      . (Claimant in its brief filed July 19, 1953, inadvertently, omitted a phrase of this section which, however, is not material in this case.) Sec. 4505.04 R. C.: “Certificate of title as evidence of ownership. No person acquiring a motor vehicle from the owner thereof, whether such owner is a manufacturer, importer, dealer, or otherwise, shall acquire any right, title, claim, or interest in or to said motor vehicle until such person has had issued to him a certificate of title to said motor vehicle, or delivered to him a manufacturer’s or importer’s certificate for it; nor shall any waiver or estoppel operate in favor of such person against a person having possession of such certificate of title, or manufacturer’s or importer’s certificate for said motor vehicle, for a valuable consideration.

        “No court in any case at law or in equity shall recognize the right, title, claim, or interest of any person in or to any motor vehicle sold or disposed of, or mortgaged or encumbered, unless evidenced:
      “(A) By a certificate of title or a manufacturer’s or importer’s certificate issued in accordance with §§4505.01 to 4505.19, inclusive, R. C.

      “(B) By admission in the pleadings or stipulation of the parties.”

      . There are a number of other provisions respecting motor vehicles which, perhaps, have some relevance. The only provision I find requiring a manufacturer to deliver a certificate, is §4505.05 R. C. It provides that no manufacturer shall sell or dispose of a new motor vehicle to a dealer for display and resale without delivering a manufacturer’s certificate.

        Sec. 4503.02 R. C. provides for the levy of an annual license tax upon the operation of motor vehicle on the public highways,

        See. 4503.11 R. C. requires annual application for registration by the owner of a motor vehicle operated and driven upon the public highway.

        Sec. 4503.33 R. C. provides for an “in transit permit” to drive-away operators engaged in the business of transporting or delivering new motor vehicles.

        Sec. 4505.03 R. C. provides that no person, except manufactures shall sell or otherwise dispose of a motor vehicle without delivering a certificate of title.

      . Op. Atty. Gen. 1953-54. No. 3398. The opinion related to liability, for use tax, §5728.06 B. C., of a commercial tractor regularly operated in combination with trailers or semi-trailers. The Attorney General discusses the definition of a semi-trailer. It is defined, §5728.01 B. C., as “everything on wheels which is not self-propelled, except vehicles or machinery not designed for or employed in general highway transportation and except * * The word “commercial tractor” is somewhat similarly defined in using the words “designed and used.”
      The opinion in part reads: “The exception in this definition relating to vehicles not designed for or employed in general highway transportation is indication of a legislative intent to include in the category of “vehicles” designed and used for carrying property on a public highway, all those which were so designed and used in the course of highway transportation operations. This latter term is not defined in the statute, and it is appropriate, therefore to consider that the expression is here employed in its usual and ordinary sense. Although such usual meaning may not readily be stated with absolute precision, it is fair to suppose that this language was intended to exclude vehicles which were only casually or in isolated instances used in highway transportation. * * * This noton that expression ‘designed and used’ — signifies a general or primary, or dedicated use, rather than a current actual use, is supported by the reference in the definition to * * After quoting the definition of “designed and used” in Webster’s New International Dictionary, the opinion continues:
      “These definitions would indicate that the word ‘designed’ as here employed, refers not merely to a structural or engineering design, but to the general use to which the owners concerned intend or purpose to put the vehicle in question.”
      Op. Atty. Gen. (1954) No. 3399: In this opinion the question related to an agricultural tractor as distinguished from a commercial tractor, §4511.01 B. C., and liability for a use tax, §5728 B. C.

      After some discussion of the word “design,” the opinon continues:
      “General highway transportation indicates a customary, usual, and common use of the vehicle as distinguished from an occasional or sporadic use, divorce from, or ancillary to its primary and principal and dedicated purpose. Thus a vehicle used principally for agricultural purposes is, ipso facto, neither designed for nor employed in general highway ■ transportatipn * * * That the vehicle is intended and dedicated to that agricultural purpose is presumed, prima facie, from the fact of its being so used.’


source: Caselaw Access Project

author: By CONN, J.

license: Public Domain

text:
    NIDAY, Plaintiff-Appellant, v. JENKINS, Defendant-Appellee.
    Ohio Appeals, Second District, Greene County.
    No. 565.
    Decided October 28, 1955.
    Aultman, Shaw & Cox, Xenia, for plaintiff-appellant.
    Wead & Aultman, Xenia, for defendant-appellee.
    (CONN, J, of the Sixth District, sitting by assignment in the Second District.)
   OPINION

By CONN, J.

This is an action in replevin brought by plaintiff in the Common Pleas Court to recover possession of a red bone hound dog from defendant.

The issues were made up on the petition of plaintiff and answer and cross-petition of the defendant. A jury was impaneled and sworn. The plaintiff was called as the first witness. Before this witness was excused or the plaintiff had rested, defendant moved that the case be dismissed on the ground that plaintiff had failed to show he is the owner of the dog.

Before ruling on defendant’s motion, plaintiff testified further on cross-examination and before the conclusion of same, the court announced that under the statute every dog of this nature, that is more than three months old, must be registered with the County Auditor and taxes paid on it. Thereupon the case was dismissed and the jury excused.

From this judgment of the trial court, plaintiff appealed on questions of law and assigns as error the judgment of the court dismissing plaintiff’s action.

Plaintiff testified that he had acquired the dog by purchase in June, 1952; that the purchase was made on his behalf by one Arnold Gothard for the price of $85.00, and introduced in evidence a receipt for said amount, dated June 20, 1952; that he had possession of the dog until December 10,- 1952; that at this time the dog disappeared and that it was not until November, 1954, that he located the dog on the premises of defendant. Plaintiff also testified that he had not obtained a license for the dog.

The granting of defendant’s motion to dismiss was grounded on the testimony of plaintiff that he had not procured a license for the dog after the alleged purchase. At the time the motion to dismiss was granted, plaintiff had not rested his case nor was he given an opportunity to call other witnesses that he had subpoenaed.

A motion to dismiss, when predicated on the sufficiency of the evidence, is analogous to a demurrer to a pleading. Such motion admits the truth of what the evidence tends to show.

In the instant case, as already pointed out, plaintiff’s evidence shows that he had purchased the dog for a substantial consideration and had had it in his possession from June until December, when the dog disappeared. Plaintiff produced a receipt for the purchase money paid.

The trial court found that the plaintiff did not have any property right in said dog, as would enable him to bring an action in replevin, and on this premise, dismissed the action.

The early common law appears to be authority for the proposition that a dog was not considered property. The modern rule, announced by the courts is that dogs are domestic animals and subject to ownership as such and that the wrongful taking or injuring of a dog amounts to an invasion of a property right and gives rise to a civil action. See 2. O. Jur. 2nd, 458, Sec. 83.

In the case of Ohio v. Weekly, 146 Oh St 277, which was a larceny case, the court held that a dog was personal property, whether listed or not, and pointed out that under the common law and early in Ohio it was held that dogs were not subjects of larceny. However, under the larceny statute, it was held that “a dog, shown to be worth an appreciable amount, whether listed for taxation or not, is a thing of value, subject to larceny within the meaning and intendment of §12447 GC.” (now §2907.20 R. C.)

In the earlier case of Hill v. Micham, 116 Oh St 549, it was held that an owner of a dog may recover for the unlawful killing of his dog and that apart from statutory provisions, that injury to or unlawful killing of a dog is such an invasion of property as amounts to a civil wrong. See also Livengood v. Markusson, 31 Oh Ap 183.

We have examined the pertinent statutes providing for registration of dogs, duty imposed on seller of a dog, penalties imposed by fine for failure to comply with the statutes. On the issue raised on defendant’s motion to dismiss, we do not feel that a discussion of these statutes is material in view of the issues raised on the record.

We conclude that the trial court erred in granting defendant’s motion to dismiss, as the evidence then before the court tended to show that plaintiff had a property right in the dog and, as a matter of procedure, had a right to introduce further evidence pertinent to the issue.

Judgment reversed and cause remanded to the Court of Common Pleas for a new trial.

MILLER, PJ, HORNBECK, J, concur.


author: By SKEEL, J:

text:
    STATE, v. EVOLA et. STATE v. DEMKOWITZ.
    Ohio Appeals, Eighth District, Cuyahoga County.
    Nos. 23490, 23491.
    Decided November 23, 1955.
    Frank T. Cullitan, County Pros., Cleveland, for plaintiff-appellee.
    Anthony C. Carlin, Cleveland, for defendants-appellants.
   OPINION

By SKEEL, J:

These appeals come to this Court on questions of law from the judgment and sentence of the defendants by the Court of Common Pleas entered February 9, 1955. It is the claim of the defendants that they have not been afforded due process of law as shown by the transcript of the docket and journal entries.

All defendants were indicted for grand larceny. Upon arraignment they entered pleas of not guilty. On December 9, 1954, all defendants, in open court, withdrew their pleas of not guilty and entered pleas of guilty as charged. The court then passed the cases for sentence and referred the defendants to the Probation Department for investigation and report.

On January 7, 1955, the journal of the court shows that the defendants were brought before the court and upon inquiry as to whether or not they had anything to say why judgment should not be pronounced against them, and they, severally answering in the negative were then sentenced by the court to the Ohio Penitentiary.

On January 12th, 1955, the court as appears by the journal, vacated the entry of judgment and sentence, and further declared:

“And now the Court hereby permits the defendants herein to withdraw their pleas of guilty to the indictment and to reenter pleas of not guilty.”

Thereafter, on February 9, 1955, without the entry showing that the defendants were brought before the court or consented to the entry made, the court, acting on its own motion, spread an entry on the journal as follows:

“It is ordered by the Court that entries of January 7, and 12, be and the same are hereby vacated and set aside, and the voluntary pleas of guilty of both defendants herein are re-instated. Exceptions.

“Therefore, it is ordered and adjudged by the court that defendants August J. Scalia and Frank Evola be imprisoned and confined in the Ohio Penitentiary, Columbus, Ohio, for indeterminate periods, and that they each pay the costs of this prosecution, for which execution is awarded. Exceptions.”

(A similar entry is found in the transcript in the Demkowitz case.)

The defendants were thereafter committed to the Ohio Penitentiary where they are now confined.

After defendants have been granted the privilge of withdrawing their pleas of guilty and to reenter pleas of not guilty, and such pleas of not guilty have been journalized, a court is without authority to vacate and reestablish prior pleas of guilty without the consent of the defendants made in open court.

We hold that judgment and sentence of the defendants, as shown by the transcript, violated the constitutional rights of the defendants in that they were not afforded due process of law and for that reason the entry of February 9th, whereby pleas of guilty were reentered by the court without the consent of the defendants and the defendants sentencd to the Ohio Penitentiary, is reversed and the cause remanded for further proceedings according to law.

Exceptions. Order see journal.

KOVACHY, PJ, HURD, J, concur.


author: By FESS, J.

text:
    SEYBOLD, d. b. a. HARVEY SEYBOLD & COMPANY, Plaintiff-Appellee, v. PITZ, Defendant-Appellant, and GRAHAM, d. b. a. THE LINDEN FLOOR COMPANY, Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 5264.
    Decided December 22, 1955.

      Mac Lee Henney, Columbus, for plaintiff-appellee.
    Brownfield & Malone, Columbus, for defendant-appellant.
    (FESS, J, of the Sixth District, NICHOLS, PJ, GRIFFITH, J, of the Seventh District, sitting by designation in the Second District.)
   OPINION

By FESS, J.

Appeal on questions of law from a judgment of the Common Pleas Court in favor of plaintiff-appellee and against defendant John G. Pitz.

Plaintiff was a wholesale distributor of flooring materials and the defendant Graham, who is not a party to this appeal, was engaged in business as Linden Flooring Company in Columbus, Ohio, selling such materials at retail and frequently installing them. For some time prior to 1951 plaintiff had sold materials to Graham, which were recorded upon plaintiff’s books of account. During the year 1951, various sales of materials were made to Graham, some of which were on credit and

others were “cash sales” or “C. O. D.”

The statement of account during 1951 discloses:

Date Item Terms Amt. Dis. Remitted Date Bal.

4- 4-51 C. O. D. $ 45.45 .91 $ 44.54 4- 4-51

5- 14-51 Asphalt tile C. O. D. 106.56 5.30 101.26 5- 14-51

6- 18-51 Display Kit C. O. D. 2% 9.00 .18 8.82 6- 18-51

7- 3-51 Asphalt C. O. D. 10.71 .54 10.17 7- 3-51

Apt. 18 & Main

7- 20-51 All purpose 2% 31.85

8- 2-51 To charge 21.06

Sales tax $723.04

8-20-51 Plastic Cash sale 78.05 1.56 76.49 8-20-51

8- 20-51 Plastic ” ” 10.50 10.50 8- 20-51

9- 24-51 Asphalt 160.80 170.00 9- 24-51

$713.84

Underneath the $713.84 is a notation: “$9.20 to be applied on old AC.” It will be noted that the September 24th sale, amounting to $160.80, was paid in cash, but the payment of $170.00 resulted in an overpayment of $9.20 which plaintiff credited to the general indebtedness oí Graham on his account, leaving a balance of $713.84 upon which the lien was filed. All of the items purchased by Graham from July 6th to September 24th were used by Graham in remodeling the premises of defendant Pitz, except 30 cartons of the materials purchased on July 6th. Graham failed to pay his indebtedness to plaintiff and on November 23, 1951, plaintiff filed an affidavit for a mechanic’s lien on the real estate of defendant Pitz. Thereafter, plaintiff filed the action herein, praying for judgment against Graham on the account and for foreclosure of the mechanic’s lien. Prior to trial, Graham was adjudged a bankrupt.

At the conclusion of plaintiff’s case, defendant Pitz moved for judgment in his favor on the ground that plaintiff had neither pleaded nor proven that plaintiff had furnished the materials to Graham in pursuance of a contract between Graham and Pitz and also that the lien had not been filed within the time required by law. This motion was overruled and the defendant Pitz elected to stand on such motion. Thereupon the Court orally announced judgment in favor of the plaintiff and against the defendant landowner. Prior to journalization of this decision, plaintiff orally moved the Court for permission to amend his petition and to reopen the case and introduce evidence so as to plead and prove that the materials were furnished Graham pursuant to contract with Pitz.

By entry filed December 1, 1954, leave was granted to amend the petition by inserting “in pursuant of a contract between said defendant Graham and defendant John G. Pitz.” Decision on the motion to reopen the case to permit the introduction of' evidence relative to such alleged contract was reserved. Thereafter, on March 1, 1955, without reopening the case, an entry was filed finding that there is due plaintiff from defendant Graham the sum of $860.10, including interest, secured by a good and subsisting mechanic’s lien on defendant Pitz’ premises, duly filed on November 23, 1951. The appeal is taken from this judgment.

The first question presented is whether the evidence discloses that the materials were furnished by the plaintiff to Graham for installation in the Pitz premises by virtue of a contract, expressed or implied, between Graham and Pitz.

In the first case arising under the Mechanics’ Lien Act decided by the Supreme Court, Choteau v. Thompson & Campbell (1853), 2 Ch St 114, it said:

“In order to acquire the lien provided by the first section of the act, the labor must be performed, or materials furnished, ‘by virtue of a contract or agreement with the owner’ of the building. The section so declares, and by this is meant not simply to exclude volunteers (persons who may labor without being employed, or may furnish materials without their being purchased); for such cases seldom, if ever, happen: and should they happen, they would create no debt. But there can be no lien unless there is a debt, and it would therefore be idle to presume an intention to guard against liens that could never exist for want of a debt to support them.
“By ‘contract,’ then, is meant something more than a mere agreement to do work or sell goods. The contract mentioned in the section is one that has reference to the purpose for which the work is to be done, or materials furnished, namely, the erection, alteration, or repair of a craft or building.
“Should a man’s domestic patch a window or mend a lock in his employer’s house, or a farmer’s hired man make or repair a door of his barn, no one would say that a lien attached in either case. So, if a material-man sells his wares with no understanding, express or implied, as to their application, he can assert no lien upon the building or vessels in which they may be placed. He trusts to the responsibility of the buyer alone and takes no security. Sells, not for the special purpose named in the statute of ‘constructing, altering, or repairing,’ but for any purpose that may seem best to the buyer. But it is only where the materials are furnished for a purpose named in the act that a lien is acquired. That they are so furnished, may be proved by evidence of an express agreement, or by proof of circumstances from which the purpose may be inferred. A tacit understanding may be as good as an express one.”

This case related to the furnishing of materials directly to the owner rather than to a contractor performing work for the owner.

It has been said that it is vital to the establishment of a lien that the proof disclose that material or labor was furnished under contract with the owner directly, or through a contractor who traced his contract to the owner. West Side Lumber Co. v. Saylor, 8 Abs 577. It has been held that in a materialman’s action to foreclose a mechanic’s lien, the petition must allege a contract between the contractor and the owner. Becker Plumbing Supply Co. v. Rialto Improvement Co., 36 Oh Ap 102. See also U. S. Mortgage & Trust Co. v. Wood, 19 O. C. C., 358.

It was within the discretion of the trial court to allow the amendment But did the amendment conform to the proof adduced at the trial, so as to support the judgment? It was stipulated that all of the material sold to Graham from July 6th to September 24th was used by Graham in remodeling the premises of the defendant, except thirty cartons of the materials purchased July 6th. It has been said by way of dicta that where work is done for an individual that is a benefit to him, and he knows that the party doing the work expects to be paid for it, an implied obligation arises on the part of the party benefited to pay what it is reasonably worth. Ashley v. Hanahan, 56 Oh St 559, 574. In the Choteau case, supra, the Court said that a tacit understanding may be as good as an express one.

In Slamey v. The City Material Company, 30 Oh Ap 435, there was credible although conflicting evidence that the materials ordered by the contractor went into the premises of the owner of the property, and that the owner, if he did not originally order the materials, ratified the act of the contractor in accepting the material with knowledge that it was going into the building. It was contended that the petition was insufficient in failing to allege that the owner had a contract with the party who purchased the materials. The Court held that the evidence submitted on the question created a situation whereby counsel in the case tried the issue as if there were no infirmity whatsoever with the petition itself, and affirmed the judgment. The Slamey case was determined on error, not appeal. The following year, the same Court, with the same Judge writing the opinion, decided the Becker case, supra, on appeal. The petition alleged that at the request of the contractor, the plaintiff delivered certain materials to the building of the defendant-owner and that said materials were used in such building. The opinion fails to indicate whether any evidence was introduced in support of these allegations and merely states “There was no contract between Reimer (the contractor) and The Rialto Improvement Company (the owner), and an allegation of this nature, we think, would be necessary under §8310 GC.” In the instant case, there was likewise no such allegation, but the defect was cured by amendment.

In view of the foregoing decisions, it is concluded that in a material-man’s action to foreclose a mechanic’s lien, the petition must allege and the evidence must show that the materials were furnished by virtue of a contract, expressed or implied, between the contractor and the owner.

Inasmuch as it is stipulated that all of the materials sold to Graham from July 6th to September 24th were used by him in remodeling the premises of the defendant, except the 30 cartons of materials purchased July 6th, in our opinion there is sufficient evidence from which to draw a reasonable inference that the materials were furnished to the defendant for repair of his premises incident to an implied contract between Graham and defendant. However, as to the amount of the lien the judgment is erroneous to the extent it includes the value of the aforesaid thirty cartons of materials which were apparently used on another job.

The second question arises upon appellant’s contention that the materials in question were sold on separate orders on different dates and were furnished to Graham on open running account. With respect to the separate orders, whether a contract of sale be entire or divisible, depends generally upon the intention of the parties, to be ascertained by ordinary rules of construction, considering not only the language of the contract, but also, in cases of uncertainty, the subject matter, the situation of the parties, and the circumstances surrounding the transactions and the construction placed upon the.contract by the parties themselves. Huntington & Fink Co. v. Lake Erie Lumber & Supply Co., 109 Oh St 488. In the instant case no such evidence incident to ascertainment of the nature or terms of the contract is present.

Evidence of the separate orders alone fails to show whether the contract was entire or divisible. But since the materials went into the building, we are of the opinion that plaintiff did not waive his inchoate right to a lien by charging the materials to Graham on an open account.

The third question is whether the affidavit of lien was filed within sixty days from the date upon which the last material was furnished at the building of the defendant Pitz. Under the stipulation, the materials purchased by Graham on September 24th and paid for by him in cash, went into the building. Sec. 8314 GC (§1311.06 R. C.) requires the affidavit to be filed within sixty days from the date on which the last of the material was furnished at the building, making no distinction between furnishing such material on credit or for cash.

In attempting to answer the first question presented, we have drawn an inference that Graham had a tacit understanding or implied contract with Pitz to install the materials furnished by plaintiff in the premises, pursuant to which Pitz obligated himself to pay Graham, but we may not indulge in further inferences concerning the nature, extent, duration or terms of such implied contract or that such materials were furnished pursuant to an entire contract between Graham and Pitz.

It has been held that neither corrective work nor material gratuitously furnished after completion of a contract to remedy defects, extends the time for lien. Walter v. Brothers, 42 Oh Ap 15; see also, Bohunek v. Smith, 36 Oh Ap 146. In Fall Savings & Loan Assn. v. Brumit, 28 Oh Ap 60, the Court found that the contract which the law implied from the mere purchase and delivery of materials previous to June 29, 1926, was fully satisfied by the payments previously made for such materials, and that the contract which the law implied from the subsequent purchase and delivery of materials was a separate and distinct contract, and constituted a new account, and since there was no general contract for the construction or for the furnishing of materials, the lien of the plaintiff dated from the date the first of the materials furnished by it after June 29, 1926.

For all the record shows in the instant case, the materials furnished on September 24th may have been pursuant to an additional contract between Graham and Pitz. Since it was paid for by Graham, no basis for a lien is established.

In Walter v. Brothers, supra, the Court said:

“A true test is whether the alleged repairs are a necessary part of the proper completion and performance of the work which the lien claimant undertook to do, and an attempt in good faith to perform the contract, and not, merely an effort to extend the time for filing an affidavit for a lien. This is always a question of fact.” (Emphasis supplied.)

The burden was upon the plaintiff to prove that the materials furnished on September 24th, and paid for in cash, were a necessary part of the proper completion and performance of the contract which, as we have indicated above, is to be implied between Graham and Pitz, and were not furnished pursuant to another or separate contract. Plaintiff has failed to meet this burden. We therefore conclude that the plaintiff has failed to prove that his affidavit for lien was filed within sixty days from the date upon which the last of the material was furnished at the building, by virtue of a contract between Graham and Pitz.

Other errors assigned are found to be nonprejudicial.

Judgment of the Court of Common Pleas reversed and final judgment entered for defendant Pitz, and the cause is remanded to the Court of Common Pleas for execution for costs.

NICHOLS, PJ, GRIFFITH, J, concur.


author: By WISEMAN, Presiding Judge:

text:
    FRANK C. CLEMENS PLUMBING COMPANY, Plaintiff-Appellee, v. H. C. HUBER CONSTRUCTION CO., INC., Defendant-Appellant.
    Ohio Appeals, Second District, Montgomery County.
    No. 2292.
    Decided December 3, 1954.
    Beigel & Mahrt, Dayton, Louis R. Mahrt, of Counsel, for plaintiffappellee.
    Morris M. Gitman, Dayton, for defendant-appellant.
   OPINION

By WISEMAN, Presiding Judge:

This is an appeal on questions of law from the judgment of the Common Pleas Court of Montgomery County entered on a verdict returned in favor of the plaintiff in the amount of $8,478.80.

Defendant-appellant assigns as error: The amount recovered is excessive; the judgment is not sustained by sufficient evidence and is contrary to law; error in the charge; error in the admission of evidence over the objection of appellant.

Plaintiff, a plumbing contracting company, brought a suit against the defendant, a residential construction company, comprising three causes of action. Plaintiff, in its amended petition alleged that plaintiff and defendant entered into three separate oral contracts whereby plaintiff agreed to furnish and install the plumbing in 85 houses to be constructed by defendant company; one covering 22 houses, which was agreed upon and work commenced thereunder on or about October 18, 1950; another covering 46 houses, which was agreed upon and work commenced thereunder on or about November 8, 1950, and another covering 17 houses, which was agreed upon and work commenced thereunder on or about May 8, 1951; that a unit price of $788.00 had been agreed upon under the first contract, but that prior to the commencement of work on said job, labor and materials substantially increased in price, and that in consideration of plaintiff entering into the two contracts dated November 8, 1950 and May 8, 1951, and the agreement of plaintiff to absorb the increased cost of labor, the defendant agreed to pay plaintiff, in addition to the base unit price of $788.00, the actual net increased cost of material on all work done under the three contracts, the amount of which was then undetermined; that said net increased cost of materials amounted to $85.96 per unit, or $7,306.60 on the 85 houses.

For its second cause of action plaintiff alleges that for services rendered and material furnished for repairs and modifications of plans, there was due the plaintiff the sum of $1,069.03.

For its third cause of action plaintiff alleges that pursuant to a special verbal contract it furnished labor and material and did the plumbing work on the three houses known as experimental houses at an agreed price of $253.40 each, and that there is due thereon the sum of $760.20.

Plaintiff prayed for judgment in the total sum of $9,135.83.

Defendant filed an answer and cross-petition. In its answer, it admitted the agreement alleged in plaintiff’s first cause of action, but stated that the agreed price per unit was $788.00; and then followed a general denial. Defendant admitted owing something on the second cause of action, but denied it owed $1,069.03. Defendant admitted plaintiff furnished labor and material on the three experimental houses as alleged in the third cause of action, but denies it owes the amount claimed. Defendant’s cross-petition comprises two causes of action; first, a claim for $1,530.00 for failure of plaintiff to insulate water pipes in the 85 houses; second, a claim of $2,016.11 as damages for negligent and careless installation of the plumbing causing damage to the defendant. Defendant prayed judgment in the sum of $3,546.11. Plaintiff filed a reply denying the allegations in the cross-petition.

The case was thoroughly tried and the record, which is quite voluminous, discloses that there was evidence presented by both parties in support of their respective causes of action. There was also evidence presented disputing the claims of both parties. There was a definite conflict in the evidence which presented a jury question. The record shows that counsel for both parties, in conferences with the trial judge, and after considering all the legal questions involved, agreed that the trial court should submit to the jury two verdicts only. Two verdicts were submitted to the jury under proper instructions without interrogatories. The jury returned a general verdict for plaintiff in the amount of $8,478.80, which was considerably less than the total amount claimed by the plaintiff.

During the trial the defendant admitted to be due the total amount claimed by the plaintiff in its third cause of action, to-wit: — $760.20. Whether the jury allowed the defendant anything on its cross-petition, and the amount allowed to the plaintiff on its first and second causes of action, cannot be determined in view of the general verdict without interrogatories. We do not find the verdict to be excessive.

The defendant-appellant assigns as error that the judgment is contrary to law. The defendant contends that it at no time agreed to pay the increased cost of materials in addition to the $788.00 per unit price, and further contends that if a promise were made it was not supported by sufficient consideration. Defendant cites the well-established rule of law that an agreement to do that which a party is already bound to do is not a sufficient consideration to support a promise. However, there was evidence that at the time the first verbal contract was entered into the matter of increased cost of labor and material was raised by the plaintiff. The record shows that at that time the plaintiff was in the process of completing work on a previous contract with the defendant, which was taken on a base unit price of $788.00. The evidence shows that the increased cost of material could not be determined until the plumbing work was done. The evidence presented by the plaintiff, which is admitted by the defendant, was to the effect that defendant told plaintiff to proceed to order the material and get the work done and later present figures with respect to cost. The evidence presented on behalf of plaintiff supported its allegations in the amended petition that before the last two contracts were entered into defendant promised to pay the increased cost of material. In law such promise was supported by sufficient consideration. This issue was submitted to the jury under proper instructions.

The defendant contends the court erred in its general charge to the jury. The court charged that if they found for the plaintiff on its first cause of action, plaintiff would be entitled to recover the reasonable value of the increased cost of materials. In view of the fact that the defendant at all times claimed that the figures submitted by the plaintiff on the cost of materials were excessive, an issue of fact was made as to the amount of the increase. In our opinion the charge was proper.

From time to time the plaintiff submitted to the defendant invoices showing the increased cost of materials on the work then performed. These invoices were introduced into evidence over the objection of the defendant. We fail to find that the introduction of the invoices constituted error as contended by the appellant.

We refrain from making a more detailed statement of the facts and from a discussion of the various contentions made by the appellant with respect thereto, as we do not believe it would serve any useful purpose.

It lies within the sound discretion of the trial court to permit a witness to testify who sat in a courtroom for a time during the progress of the trial and who had not been informed that a separation of witnesses had been ordered.

Time allowed counsel for argument is discretionary with the trial court. It is not error for the trial court to grant additional time to counsel for appellee for argument where some of his allotted time was consumed by objections of counsel for appellant, discussion of the matters raised, and rulings thereon.

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

MILLER and HORNBECK, JJ, concur.


author: By HORNBECK, J.

text:
    MILLER, Plaintiff-Appellee, v. BEARD, Defendant-Appellant.
    Ohio Appeals, Second District, Greene County.
    No. 566.
    Decided October 28, 1955.

      Peterson & Neatherton, Xenia, for plaintiff-appellee.
    Miller & Finney, Xenia, for defendant-appellant.
    (CONN, J, of the Sixth District, sitting by designation in the Second District.)
   OPINION

By HORNBECK, J.

This is an appeal on questions of law from a judgment for plaintiff for the sum of $420.00 with interest and costs entered on a verdict of a jury. Plaintiff sued upon an alleged oral contract between herself and defendant whereby she agreed to clean up a farm house into which she and her husband were moving for which services she was to be paid reasonable compensation. She prayed in her petition for $450.00 and the jury awarded her $420.00. Defendant answered by a general denial and in a cross-petition asserted that plaintiff and her husband were joint tenants under a farm lease with defendant for a period beginning March 1, 1951. The dwelling upon which plaintiff claims to have done the work was the residence on the farm rented. Defendant pleads a complete settlement between himself and the Millers on .December 4, 1953 for two years ending March 1, 1954. He then recites the terms of the lease under which he claimed the parties operated and in the first cause of action sets up certain charges against the Millers and in the second cause of action pleads other charges against them; in the third cause of action avers that the tenants threaten to terminate the rental agreement without keeping their year’s tenancy and the feeding of livestock which is ready for sale. The prayer of the cross-petition is for an accounting and for damages totaling $600.00 and for such other relief as he is entitled in law or equity. Defendant also moved to consolidate this case with another case on the docket of the Common Pleas Court of Greene County wherein Roger Miller was plaintiff and Elmer Beard was defendant in which it was asserted the same subject matter was involved as in the instant case all of which required an accounting. This motion was overruled.

It further appears that in the instant suit the plaintiff in answering the defendant’s cross-petition, admitted that she and her husband were tenants on the farm of defendant until March 1, 1954 and so continued to operate the farm until February 1955. This was assigned as further reason for the consolidation. After the cause came on for trial, defendant moved for leave to amend her answer by deleting that portion thereof which admitted that she was a tenant with her husband on the farm of defendant. This was granted and the amendment was made.

During the progress of the trial, plaintiff introduced her Exhibit No. 1 headed “Greene County Farm Lease” wherein the defendant was designated as the landlord and Roger L. Miller as the tenant, which was signed by defendant and Roger L. Miller and witnessed by plaintiff and her son and bears the date of August 31, 1951. Testimony was offered tending to show that this purported farm lease was not the original and controlling lease between the parties but that the real agreement was oral in which both plaintiff and her husband were to be the tenants. Considerable testimony wras forthcoming to the effect that plaintiff’s Exhibit No. 1 was prepared for the accommodation of plaintiff in connection with a loan which she or they, the Millers, were receiving from a farm agency.

The trial judge refused to give defendant’s special charge No. 1 requested to be given before argument, and ruled that the cross-petition was not proper and could not be considered by the jury and in the general charge said to the jurors:

“In this case defendant’s pleading contains a cross-petition which the court has ruled, is not proper in this case and the jury should not consider the cross-petition for the reason that the only signature on the lease was that of Mr. Miller.”

Appellant assigns nine errors which we will consider chronologically.

The first and second assignments assert that the court erred in overruling defendant’s motion to consolidate the instant case with the case of Roger Miller against Elmer Beard. The instant action was based upon the claim that there was an express oral contract between the plaintiff and the defendant whereby she was to render the services, the subject matter of .her suit. In it no suggestion that she was a tenant of defendant was made. The husband’s action likewise was based upon the contention that he was the sole tenant. Defendant claimed that both the Millers were his tenants but Roger was not a party to the action on trial. Even though plaintiff was a joint tenant on the farm, that relationship, in itself, would not necessarily include the obligation of plaintiff to perform the service for which she seeks payment.

. The test as to consolidation of action is: Does it clearly appear that the parties are the same and the causes of action identical? Brigel v. Creed, 65 Oh St 40; Trout v. Marvin, 24 O. C. C. 333.

The court did not err in refusing the consolidation at the time the motions were overruled.

The third assignment is that “the court erred in sustaining a motion permitting plaintiff to file an amended answer to defendant’s cross-petition on the morning of the trial taking defendant by surprise and requiring him to his prejudice to go into the immediate trial to the jury.”

This assignment is not well made. If the plaintiff desired to amend her answer to conform to the facts as she expected her testimony to prove that was her privilege. The inconsistency in her statements in the former and the amended answer were proper questions for consideration of the jjury and no doubt were well developed in the presentation of the casé.

The contention of appellant that he was surprised by the amendment to his prejudice is not well made. The motion to amend was sustained three days before the trial, the record does not disclose that the defendant urged this contention of surprise in the trial court or requested a continuance of the trial.

The fourth error is that the court erred in accepting certain evidence on the part of the plaintiff which should have been excluded.

This assignment is directed to the admission of plaintiff’s Exhibit No. 1, certain testimony of Sarah Coy and the reference by plaintiff to a calendar upon which dates were circled indicating when she had worked and the admission of this calendar as an exhibit.

Plaintiff’s Exhibit No. 1 was properly admitted; it bore the indicia, in particulars, of a farm lease between defendant and Roger Miller and it was contended by the plaintiff that it was such and that it was prepared and executed for that purpose and that the reason that it was not more complete, in setting forth the terms of the lease, was because defendant had indicated that he did not want the farm agent who was making the loan to the Millers to know the full terms. In any event, it was probative of the fact that the plaintiff was not a party to the tenancy and that her husband was the sole tenant.

Plaintiff’s Exhibit A was also properly admitted not as a book-account because plaintiff was not suing on a book-account or contending that the exhibit was such, but as a memorandum of the days she claims to have worked and as supporting her other testimony on the subject.

The testimony of Sarah Coy was properly admitted.

Error No. 5 is the refusal to admit certain evidence tendered by the defendant.

All of this testimony, if admitted, would have related to the success or non-success of the Millers by reason of their operations of the farm of defendant during the tenancy. It had no material bearing on the issues drawn between the parties.

It is also asserted that the court ruled out the cross-petition which contention is correct and refused to permit the defendant to prove that the lease between the parties was with both the Millers and the defendant and the terms thereof.

We do not find that defendant proffered any testimony purposed to show the terms of the lease as contended by him. He was, however, permitted without interruption or objection to testify that the lease was made with both of the Millers, that it was oral, that it was for one year and from year to year thereafter and that plaintiff’s Exhibit No. 1 was not the rental contract and fully as to the settlements which he claimed had been made with the Millers and that, at the time of the settlements, plaintiff made no mention of the claim upon which her suit was based. This testimony was properly admitted under the general denial of the answer. No error is exemplified by this assignment.

The sixth assignment is that the court erred in instructing the jury not to consider the cross-petition of the defendant for the reason that the only signature as a tenant on the lease was that of Mr. Miller.

This latter observation of the trial judge was erroneous, but if he was correct in refusing to permit the jury to consider the cross-petition his reason therefor, though not sound, would not necessarily be prejudicial.

The testimony concerning the actual rental agreement between the parties is at variance. There is substantial support for the contention of defendant that plaintiff’s Exhibit A was not the rental contract but that it was oral and had been made before the so-called written lease was drawn and was merely a paper writing which was prepared at the request of plaintiff and for the accommodation of the loan agent. Certainly there was controversy as to the real lease between the parties, whether oral or as indicated by the written instrument. If the written instrument is correct, insofar as it speaks, it is entirely inadequate to set forth any of the terms of the rental agreement, but it does carry the names of the contracting parties thereto. If the contention of the defendant which would preclude any oral testimony to modify its term, it clearly was an admission of defendant against his interest as to the tenancy of plaintiff.

The only question that has given us concern on this appeal is the effect of this statement of the trial judge in his general charge as to the reason that he refused the jury permission to consider the cross-petition.

If plaintiff’s Exhibit A was a bona fide lease for the rental of the farm as contended and testified by the plaintiff, though incomplete, then, as it recited that Roger Miller was the tenant, to permit testimony that Mrs. Miller was a tenant would have been at variance with the terms of the written instrument and not admissible. If it was not in any sense the lease of the farm of defendant but the oral lease controlled entirely and both Millers were the tenants; these facts were proper for submission to the jury. All of them were testified, received and considered by the jury and they were admissible under the general denial of the answer.

The law applicable to the foregoing situations which would have clarified them was not incorporated in any instructions to the jury and no such instructions were requested. The failure to give them is not assigned as error.

The landlord-tenant relationship between plaintiff and defendant, if it existed, was not, as we have said, controlling of her right to recover in her suit. Whether or not she was a tenant it was incumbent upon her to prove the contract as alleged and the value of her services. The court so charged. If the contract was proven as alleged, it was unaffected by, and independent of any obligations on the part of plaintiff as a tenant. On the other hand, if the work which plaintiff did was without a contract but was only such as was incident to the usual preparation of tenants about to move into a house, she could not recover. She could recover nothing on an implied contract.

The failure of plaintiff to offer testimony as to the value of the services which she said she performed is urged as prejudicially erroneous. The value of the services were such as was within the common observation and general knowledge of men requiring no special proof. 42 O Jur. 546; citing Fleischmann Transportation Co. v. Bishop, 12 Oh Ap 293 and Sayler v. Seller’s, 2 Oh Ap 439; Hossler v. Trump, 62 Oh St 139.

The cause was well tried and the respective contentions of the parties developed, in the main. There are several instances wherein both parties could have provided further information which would have been helpful to the jury in resolving the issues. The strongest inference against plaintiff was that which was testified by the defendant, if true, respecting the settlements wherein plaintiff was present and made no claim on the contract sued upon.

It is our judgment that the observation of the trial judge although erroneous was not, upon the whole record, prejudicial and does not require a reversal.

No. 8. That the verdict is against the weight of the evidence and therefore contrary to law. Without comment we hold against this contention. The issues were clearly drawn and the respective claims were well supported, leaving the determination thereof properly to the jury.

The ninth error is merely a grouping of all the other assignments which we have sufficiently considered.

Finding no reversible error in the trial of the cause the judgment will be affirmed.

MILLER, PJ, CONN, J, concur.


author: By FULTON, J:

text:
    WAGNER, Plaintiff, v. ARTHUR, Defendant.
    Common Pleas Court, Cuyahoga County.
    No. 679112.
    Decided March 6, 1956.

      Harry Bishop, Austin T. Klein, Cleveland, for plaintiff.
    Arter, Hadden, Wykoff & Van Duzer, Cleveland, for defendant.
   OPINION

By FULTON, J:

Plaintiff claims to have been injured in Cleveland by an automobile owned by defendant but driven carelessly by one who stole it in Columbus, Ohio, where it had been parked on the street by the defendant owner who left the key in the ignition.

The defendant demurred to the petition on the ground that no cause of action is stated. The demurrer is. sustained

It is conceded by both parties that this is a case of first impression in Ohio. The question presented rests solely upon the petition of which the well pleaded facts must be construed most favorably to plaintiff-pleader. Any inferences or implications suggested, or thought to be suggested, by plaintiff’s interrogatories are disregarded

THE PLEADED FACTS

Plaintiff was injured in Cleveland by the negligent operation of a Buick automobile owned by defendant but operated by one who “had earlier stolen said Buick automobile in Columbus, Ohio” where this thief was escaping police capture and who was, at the time of the accident, in Cleveland avoiding “capture by police who were in close pursuit.”

The defendant parked his Buick “on a public street in Columbus. Ohio, unlocked and with the ignition keys in the ignition.” The petition asserts that the defendant thus left his car and implies that it was unguarded.

PLAINTIFF’S THEORY

The claim is that his leaving of the car as above described is negligence or at least presents an issuable question of negligence, the proximate result of which were plaintiff’s injuries. Plaintiff then plants causation in the soil of foreseeability.

GUIDING PRINCIPLES AND PURPORTED REASONING

An automobile is not inherently dangerous. Williamson v. Eclipse Motor Lines, 145 Oh St 467.

The permissive use by another of one’s automobile does not fix U-ability upon the latter for the other’s careless operation ordinarily. White Oak v. Rivoux, 80 Oh St 19. An exception arises if the permissive user for any reason is an incompetent driver and so known to the owner.

The doctrine of reasonable foreseeability of the results of one’s acts is a part of the negligence law of Ohio; and the questions of reasonable foreseeability and intervening proximate causality becomes a submissible fact question for the fact triers depending upon the attendant circumstances. Mudrich v. Standard Oil Co., 153 Oh St 31. Ross v. Hartman, 139 Fed. 2d. 14.

The White Oak case, supra, decided in 1913, remains unreversed case law. It decided, inter alia, that the mere showing that one is “the owner of” a “negligently operated automobile” is not enough to create liability against the owner. Prophetically by dictum in that case, it was written that “an automobile may be in the possession of one who wrongfully appropriates it to his own use” and implied that the negligence of such nonpermissive user should not be imputed to the owner of the vehicle.

A petition which recited that the owner left his car, as did the owner in this case, with key in ignition in violation of a pleaded ordinance in consequence of which a thief took it and while using it injured another was good against demurrer of the owner. Garbo v. Walker, 71 Abs 368. There the ordinance created a duty and the violation of that ordinance was negligence per se. No similar ordinance is pleaded in this case. There the initial act is the violation of a municipal ordinance, which in this state is negligence per se. Here the initial act is leaving the key or, as stated in the petition, the “keys” in the ignition. Such act is not negligence in law. It may not be negligence in fact. If it is debatably negligence in fact, it becomes an issuable question for the trier of the facts. If it be assumed that the act is either negligence in law or will be found to be negligence in fact, the solution of the instant problem is not thereby found. Was such act a factor of causation? Did such act proximately cause plaintiff’s injuries or was it caused by an intervening force or agency which broke the causal connection, as probably foreseeable, between the initial act and plaintiff’s injuries? Was the initial act such that the owner should have foreseen the subsequent events: (1) the theft, (2) the theft by one already sought by the police, (3) the driving of the automobile from Columbus to Cleveland, (4) the alleged careless driving of the self-borrower? It does not appear to this writer that defendant should have foreseen or anticipated the intervention of someone’s else (this thief’s) acts aforesaid.

It is true that proximate cause, generally is a fact question. But proximate cause should not be such issuable fact question as between an initial act and the ultimate result, if there has intervened forces which break the causal connection or, in the natural course of things, should not have been foreseen. This question of foreseeable risk is well portrayed in Richards v. Stanley, 271 F. 2d, 23 (1954):

“The problem is not answered by pointing out that there is a foreseeable risk of negligent driving on the part of thieves. There is a foreseeable risk of negligent driving whenever anyone drives himself or lends his car to another. That risk has not been considered so unreasonable, however, that an owner is negligent merely because he drives himself, or lends his car to another, in the absence of knowledge on his part of his own or the other’s incompetence. Moreover, by leaving the key in the car the owner does not assure that it will be driven, as he does when he lends it to another. At most he creates a risk that it will be stolen and driven. The risk that it will be negligently driven is thus materially less than in the case in which the owner entrusts his car to another for the very purpose of the latter’s use.”

In the absence of a statute or ordinance, the better present rule is that owners of automobiles who leave their cars unattended with key in ignition switches are not liable for negligent operation by those who steal their cars. Kiste v. Red Cab Inc., 108 N. E., 2d 395, (Ind. 1952). Galbraith v. Levin (Mass. 1948), 81 N. E., 2d 560. Curtis v. Jacobson (Maine 1947) 54 A. 2d, 520. Kinsley v. Von Atzingen (N. J. 1952) 90 A. 2d, 37.

One year earlier than the Kinsley case supra, the New Jersey Superior Court reached the same conclusion in absolving a taxicab company whose driver left the motor running at which time it was stolen by a passenger and thereafter negligently operated by him later to the injury of a third person. Reti v. Vaniska (N. J. 1951) 81 A. 2d, 377.

Indeed the Supreme Judicial Court of Massachusetts reached the conclusion of non-liability where the driver’s opportunity to steal the owner’s automobile was made possible by the owner’s violation of an ordinance which forbade leaving the key in the ignition because any other view, thought the Court, would go far toward making the owner of a motor vehicle an insurer as to the consequences of every accident in which his automobile might become involved. Sullivan v. Griffin, 61 N. E., 2d, 330 (1945). This same result was reached in Illinois despite a statute, Cockrell v. Sullivan, 1951, 344 Ill. App. 620, 101 N. E. 2d, 878.

The immediate cause through the thief’s alleged careless driving, as between him and defendant-owner, is the proximate cause of the collision. It is not an aid to, or united or concurring with, the key in the ignition switch.

The temptation was great to reach the opposite conclusion and to write philosophically on this question; to discuss man’s industrial development from the manual to the simple tools era. to the mechanical-steam era, to the mechanical-electrical era, to the mechanical-electronic era and finally to the mechanical-atomic era; and thereby show society’s benefit to each of its members; to show the duty and obligation of each, who enjoy society’s benefits, to others in society; and to compare and present, by analogy, the theory of this plaintiff to that of the first plaintiff who succeeded in obtaining the engraftment of the doctrine of respondeat superior into our law. That temptation was set aside in favor of stare decisis, and to avoid too precipitous a change through an inferior court. The theory now contended for by the plaintiff in this case will become law some time either legislatively or judicially, and if by the latter process, it should be through the reviewing courts to whom the pioneer (the plaintiff) should appeal. The demurrer to the petition is sustained. Exceptions to the plaintiff.


author: By THE COURT.

text:
    LAMNECK, Jr., Plaintiff-Appellant, v. CAIN, Clerk, Defendant-Appellee. MARKOS, Plaintiff-Appellant, v. CAIN, Clerk, Defendant-Appellee. JONES, Plaintiff-Appellant, v. CAIN, Clerk, Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    Nos. 5334, 5349, 5361.
    Decided November 16, 1955.
    Richard C. Addison, Barnhart & Wehr, Columbus, for plaintiffs-appellants.
    Chalmers P. Wylie, City Atty., J. Russell Leach, Senior Asst. City Atty., Columbus, for defendant-appellee.
   OPINION

By THE COURT.

The same legal questions are presented in each of the above appeals, so they will be considered together.

The appellee has filed motions in each of the above cases seeking an order dismissing the appeal for the following reasons:

1. The Court is without jurisdiction to hear the appeal.

2. The issues involved have become moot.

The record reveals that the actions herein were instituted in the Common Pleas Court and sought orders restraining the respondent who is the Clerk for the City of Columbus, Ohio, from certifying to the Council of said city the action taken by the Franklin County Board of Commissioners in favor of the annexation of certain territory to the city. Demurrers were sustained to the petitions and plaintiffs not desiring to plead further the actions were dismissed. The appeals are from these final orders. No supersedeas or appeal bonds were filed and no temporary restraining order was ever issued against this respondent. After these actions were dismissed the respondent in compliance with §709.08 R. C., forwarded a certified copy' of the proceedings had before the County Commissioners to the City Council which has now taken action annexing the said territory.

We are of the opinion that the first ground of the motion is not well taken, as our Supreme Court appears to have held otherwise in the case of Geauga Lake Improvement Assn. v. Lozier, 125 Oh St 565, paragraphs 1 and 2 of the syllabus of which provide:

“Under §§3532, 3533, 3534 and 3535 GC, the judgment of a court of common pleas, dismissing a petition for an injunction to restrain the. county recorder from making a record and certifying the transcript of proceedings for incorporation of a village, instituted under §§3516 tc 3546 inclusive, GC, is reviewable in error proceedings in the Court of Appeals.
Under §§3532 and 3535 GC, the Court of Appeals has power in such error proceedings to reverse the judgment of the court of common pleas on the weight of the evidence.”

The second branch of the motion, we think, is well taken. The only relief sought is to restrain an act that has been performed. Therefore the question presented has become abstract or purely academic. When such facts appear the question becomes moot. State, ex rel. Dickman v. Defenbacher, 151 Oh St 391; State, ex rel. Dickman v. Defenbacher, 158 Oh St 104.

It should also be noted that neither the annexation petitioners nor the City of Columbus are parties defendant in these cases; hence no relief could be obtained against them by means of any judgment; the only possible relief that could be granted would be with reference to an act that has now been performed.

The motion has become moot and the second branch of the motion will be sustained.

MILLER, PJ, HORNBECK, J, concur.

WISEMAN, J, not participating.


text:
    WYATT, Plaintiff-Petitioner, v. ALVIS et, Defendants-Respondents.
    Ohio Appeals, Second District, Franklin County.
    No. 5348.
    Decided October 11, 1955.

      Orie George Wyatt, Columbus, in his own behalf.
    Hon. C. William O’Neill, Atty Geni., Roger B. Turrell, Asst. Atty. Geni., Columbus, for defendants-respondents.
   OPINION

By HORNBECK, J.

This is an action wherein plaintiff seeks to be released from the Ohio Penitentiary where he is serving sentences upon a conviction on two counts of an indictment, the first of which was a charge of burglary with intent to steal something of value, the second of which was a charge of grand larceny. The sentences were from one to fifteen years under the conviction of the first count and one to seven years under the second count of the indictment.

Plaintiff contends that the trial judge had no jurisdiction to sentence him on separate counts and that he should either be released or that an order be made which would restrict his sentence to the conviction on one of the counts. The basis of plaintiff’s contention is that the acts set out in the two counts of the indictment are but one transaction which may not be the subject of separate counts.

The rights of plaintiff are defined and controlled by statute. Sec. 2941.04 R. C. (§13437-3 GO provides, among other things, that an

“indictment * * * may charge two or more different offenses connected together in their commission, or different statements of the same offense, or two or more different offenses of the same class of crimes or offenses, under separate counts,” * * *.
“The prosecution is not required to elect between the different offenses or counts set forth in the indictment or information, but the defendant may be convicted of any number of the offenses charged, and each offense upon which the defendant is convicted must be stated in the verdict.”

Sec. 2907.10 R. C. (§12438 GO) defines burglary and the first count in substantially the language of the statute charges the breaking and entering in the night season of a building with intent to steal property of value. The defendant was found guilty under this count of the indictment.

The second count was a charge of grand larceny under §2907.20 R. C. (§12447 GO). The indictment was substantially in the language of the statute and charged that the value of the property stolen was $180.00. Defendant was convicted under this count.

These offenses are, as we have just indicated, separately defined and are distinct and different offenses. The acts which constituted a violation of the counts of the indictment were not the same transaction. Had the plaintiff done nothing more but break into a building in the night season with intent to steal property of any value, he could have been found guilty of burglary and convicted. It was the next step and different transaction which constituted the grand larceny, namely, the actual stealing of property of the value as charged in the indictment.

The defendant having been specifically convicted of both offenses was properly sentenced under the law applicable thereto.

The plaintiff is not illegally restrained of his liberty. The writ will be denied.

MILLER, PJ, concurs.

WISEMAN, J, not participating.