author: By HOLTSBERRY, J.

text:
    CURRY, Plaintiff, v. BIG BEAR STORES COMPANY, Defendant.
    Common Pleas Court, Licking County.
    No. 42980.
    Decided October 24, 1956.

      William G. Huggins, Columbus, for plaintiff.
    E. C. Morrow, Newark, for defendant.
   OPINION

By HOLTSBERRY, J.

Plaintiff asks both compensatory and punitive damages against defendant corporation herein, alleging in substance that said defendant through its agent, one Kenneth Baughman, who at said time was wearing a policeman’s uniform and gun, followed plaintiff from defendant’s premises and in the presence and hearing of diverse persons, injured plaintiff in his good reputation and credit by uttering the following false, malicious and defamatory words: “You took something up at the Big Bear Store and did not pay for it. I have searched your car and found it. You will have to go with me back to the Big Bear Store.”

Plaintiff asks damages in the sum of $25,000 for compensatory damages and $25,000 punitive damages, together with attorney fees.

A motion has been filed by defendant asking the Court to strike from plaintiff’s petition certain matters pertaining to punitive damages and attorney fees.

An examination and review of cases where punitive damages have been allowed reveals that such have been based upon intent of defendant and are awarded by way of punishment. Ohio is committed to the rule that in certain actions involving gross or malicious fraud, malice, insult, or wanton or reckless disregard of the legal rights of others, punitive damages are permissible. Such damages is a matter within the discretion of a jury and actual damages must first have been found and assessed before such could be allowed. Where punitive damages are allowed it is proper for the jury to allow a reasonable attorney fee.

A principal’s or master’s liability for wilfull, wanton, and malicious acts does not extend to a liability in punitive damages unless the principal or master has authorized, ratified, or acquiesced in or participated in, the employee’s conduct or has failed to exercise due and reasonable care in selecting or retaining the employee. The same rule is applicable to the liability of a private' corporation for the acts of its agents or employees. (16 O. Jur. 2nd, at page 288.)

In The Columbus Railway, Power & Light Co. v. Harrison, 109 Oh St 526, our Supreme Court held that in an action for personal injury for an assault upon a passenger by the employee of a corporation, punitive damages cannot be recovered against the corporation in the absence of evidence that the assault was authorized, participated in, or ratified by the corporation, or that the corporation had failed to exercise due and reasonable care in selecting or retaining its employee.

The instant case is one where the punishment in the way of punitive damages, if allowed as prayed for, might fall upon the corporation rather than upon the actual wrong doer. It is the duty of the court to see and use great caution in such instances so that such damages are not imposed unless all conditions under the law for their recovery are present.

An examination of the petition herein fails to disclose any allegations to the effect that defendant directed, ratified, or acquiesced in the alleged act, or was negligent in employing or retaining said agent.

In the opinion of this Court such an allegation is essential if plaintiff intends to seek punitive damage against defendant corporation.

The matters in plaintiff’s petition referring to punitive damages and attorney fees are ordered stricken in accordance with the motibn of defendant. Plaintiff will be granted 20 days to amend, if he so desires.

Exceptions allowed.


source: Caselaw Access Project

author: By FESS, J. ' By'HORNBECK, J.

license: Public Domain

text:
    MILLS, Plaintiff-Appellee, v. SPRINGFIELD (City) et, Defendants-Appellants.
    Ohio Appeals, Second District, Clark County.
    No. 527.
    Decided April 28, 1956.

      W. T. Hicks, Springfield, for plaintiff-appellee.
    Richard H. Wehler, City Solicitor, George A. Schwer, Special Counsel, Springfield, for defendants-appellants.
    (FESS, J, of the Sixth District, sitting by designation in the Second District.)
   OPINION

By FESS, J.

Appeal on questions of law from a judgment entered upon a verdict for plaintiff.

By way of preface, it is suggested that in negligence cases generally attention is focused upon whether the defendant is negligent or whether the plaintiff is chargeable with contributory negligence, and there is an inclination to overlook the fact that occasionally an accidental injury occurs not attributable either to negligence of the defendant or to the plaintiff. Slipping on ice, resulting in injury, is a painfully common occurrence.

Evidence on behalf of the plaintiff tends to show:

1. An unusually heavy precipitation of snow some time between December 14th and 28th, 1951, which necessitated the use of snow plows by the defendant upon its principal streets, for the benefit of vehicular traffic.

2. The operation of such snow plows resulted in ridges of snow and ice from two to three feet in height on each side of Limestone Street (State Route No. 68) within the street but alongside the curbs.

3. At the intersection of Trenton Place and Limestone Street, located in the residential district some distance from the down-town area, this ridge of snow and ice extended laterally across the entrance of Trenton Place into Limestone Street.

4. Approximately 7:30 p. m. on the evening of December 28th, plaintiff and her sister alighted from a city bus at the northeast corner of the intersection and proceeded diagonally in a southwesterly direction across the intersection with the intention of entering their residence on the southwest corner thereof.

5. The street light maintained by the Ohio Edison Company was out and had been out for at least the previous night. There was some, but dim, light reflected from the lights on the bus.

6. Plaintiff was aware of the ridge, having observed it in daylight on the morning when she left for work and on several days previous thereto.

7. Plaintiff testified:

“Q. What did you do after you dismounted from the bus?
“A. Well, naturally, I tried to work across to my home; and when I got to the west side, I found the condition just, the snow was piled up three feet, almost masses were almost three feet high; and even in the darkness, as I say the light was uneven and the darkness, as I tried, you would find a safe step, some place safe to step on, but I had to get over that pile of snow and as I stepped on it, I fell. * * * I think I groped a little for safety; but I couldn’t see and as soon as I got on this pile of snow, naturally I just went down.”

8. Plaintiff’s witnesses put her in Limestone Street after her fall, three feet from the south boundary extended of Trenton Place and three or four feet from the west boundary of Limestone Street.

Defendant’s undisputed evidence with respect to weather conditions previous to the accident is as follows:

Date Temperature Snow on ground Snowfall Rain Max. Min.

Dec. 14 31 7.6” 7.6”

16 9 7. ” none

17 23 6. ” none

18 33 10. ” 5.1”

19 9. ” none

20 8. ” 2.1” .56

21 42 6. ” none .24

22 6. ” none

23 5. ” none

24 5. ” none

25 39 24 4. ” none .69

26 39 25 3. ” none

27 29 12 3. ” none

28 36 16 3. ” none

Defendant’s evidence tends to show:

1. No ridge of snow or ice such as described by plaintiff’s witnesses, but some snow or ice along the curbs of Limestone Street.

2. That instead of proceeding diagonally across the intersection, plaintiff and her sister proceeded directly across Limestone Street from the northeast corner to the northwest corner and then south upon the westerly cross-walk over Trenton Place. In her deposition plaintiff testified she proceeded straight west after alighting from the bus. (R. p. 48.)

3. Two police scout crews and the emergency ambulance of the fire department arrived at the scene: The six members of the crews each testified that the plaintiff was sitting upon the westerly cross-walk, complaining of her injuries and unable to move, seven feet north of the south curb of Trenton Place.

4. The police officers and firemen also testified that the entrance from Limestone Street into Trenton Place over the westerly crosswalk was icy, slippery and rough as a result of footprints and tire tracks, and that the three vehicles encountered no difficulty in entering Trenton Place and parking beyond the point where plaintiff sat.

Although there is no direct evidence that the defendant plowed the snow on Limestone Street, there is substantial circumstantial evidence from which it may be reasonably inferred that the city did so. There is direct testimony submitted by plaintiff and her witnesses that a two or three-foot-high ridge of snow and ice existed on the day of the accident all along the westerly side of Limestone Street, which obstructed plaintiff’s passage to her residence. Upon the inference that the defendant created the ridge of snow as a result of plowing snow, it is also apparent that the temperature on December 21st, 25th, 26th, 27th and 28th would cause thawing and subsequent freezing of the surface of the accumulation of snow from December 25th to the date of plaintiff’s injury.

Fundamentally, §723.01 R. C. (§3714 GC), confers upon a municipal corporation the power to regulate the use of streets; authority to care, supervise, and control public highways, streets, sidewalks, etc., within such municipality; and imposes the duty to cause them to be kept open, in repair, and free from nuisance. In effect, the statute is a requirement that the corporation shall prevent all nuisances therein, and when, by allowing a street to become so out of repair as to be dangerous, the corporation itself maintains a nuisance, and a suit to recover for injuries thereby occasioned is for damages arising from a nuisance, or “for a nuisance.” Cardington v. Frederick, 46 Oh St 442, 447.

Although the statute does not in terms declare a liability for the failure to perform the duty, “a right of action for damages caused by such neglect arises by the common law.” Cardington v. Fredericks, supra; Zanesville v. Fannan, 53 Oh St 605, 619.

But the obligations imposed by the statute are in derogation of the common law and must be strictly construed.

Wooster v. Arbenz, 116 Oh St 281, holding that municipalities, while engaged in the improvement of streets, are performing a governmental function and are not liable under the statute for the negligence of its servants while engaged in making improvements unless such negligence relates to a condition of the street itself and the damage is caused by a defective condition.

See also Seldon v. Cuyahoga Falls, 132 Oh St 223, 225; Cleveland v. Amato, 123 Oh St 577; Wall v. Cincinnati, 150 Oh St 411; Tolliver v. Newark, 145 Oh St 517.

The statute provides a general rule of conduct and makes negligence the basis of liability for its violation. Thus, the nuisance referred to is a qualified rather than an absolute nuisance. Taylor v. Cincinnati, 143 Oh St 426; Wall v, Cincinnati, 150 Oh St 411; Kimball v. Cincinnati, 160 Oh St 370.

This is not to say, however, that a city would not be liable for an absolute nuisance existing in a street.

It requires only reasonable care and vigilance, in view of all the surroundings, to keep the streets and ways in a reasonably safe condition for travel in the usual and ordinary modes, and does not exact that which is unreasonable or impracticable. Municipalities are not insurers of the safety of their public ways, and are liable only for negligence in creating a faulty condition in such ways, or in failing to repair, remove or guard against defects or obstructions therein, after actual or constructive notice of their existence. The standard of care required to be exercised in keeping streets in repair and free from nuisance is that care which persons of reasonable and ordinary prudence exercise under like circumstances and conditions. Taylor v. Cincinnati, supra; Cleveland v. Amato, 123 Oh St 575. But liability arises upon proof that agents of a municipality actively created a faulty condition. Cleveland v. Amato, supra; Taylor v. Cincinnati, supra.

The provisions of §723.01 R. C. do not change the rule that a municipality is not liable for injuries resulting from the usual and natural accumulation of snow and ice on its streets and sidewalks. McCave v. Canton, 140 Oh St 150; Smith v. Cuyahoga Falls, 73 Oh Ap 22. The reasons for the rule are that a municipality should not be required by law to remove from the miles of streets and sidewalks within its limits the natural accumulation of ice and snow, because such a requirement is impracticable from the nature of things and when these conditions exist they are generally obvious so that travelers know of them and assume the risk. The law does not require what is unreasonable, nor does it condemn an act or omission as negligent which can be done or prevented only by extraordinary exertion or by the expenditure of extraordinary sums of money. Chase v. Cleveland, 44 Oh St 505; Norwalk v. Tuttle, 73 Oh St 242; McCave v. Canton, supra.

In Maine, a statute provides that no town is liable to an action for damages to any person on foot, on account of snow or ice, on any sidewalk or crosswalk. This statute has been held to preclude recovery even though the pile of snow constituted a nuisance. Verreault v. Lewistown (1954), 104 A. 2nd., 538.

There is authority for the proposition that a City may await a thaw in order to remove snow and ice, and also that a city cannot be charged with negligence in not removing ice resulting from a thaw or rain and subsequent freezing for a sufficient length of time prior to the injury to become responsible for its removal. 13 A. L. R. 56; 80 A. L. R. 1162.

A different rule is applied where the ice or snow has accumulated wholly or in part through the fault of the city, as where, because of a defect in a sidewalk, ice is caused to form which would not otherwise do so, or where the formation of ice on a sidewalk is due to the failure of a city to prevent overflow of water or to repair a leaking hydrant, or where a downspout is so defectively constructed as to cast water upon a sidewalk, which subsequently freezes, resulting in injury to a pedestrian. McCave v. Canton, supra. The decisions cited in support of this principle of liability deal with injuries to pedestrians upon a sidewalk or crosswalk rather than injuries suffered by a pedestrian upon a highway. Where sidewalks are available, the duty is imposed upon the municipality for the benefit of pedestrians and a commensurate duty is imposed with respect to highways for vehicular traffic. Thus, plowing snow upon a highway is in the interest of vehicular traffic rather than pedestrians, whereas the duty of removing a hazardous accumulation of ice from a sidewalk is exclusively for the benefit of pedestrians. But notwithstanding no duty is imposed upon a municipality to keep a highway open, in repair and free from nuisance where sidewalks are provided for the benefit of pedestrians, a municipality ought to be held liable for malfeasance in creating a condition hazardous to a pedestrian upon the highway incident to the performance of its duty to keep the highway open. Squillace v. Mountain Iron (1945) 223 Minn., 8, 26 N. W. 2nd, 197; Smith v. District of Columbia (1951) 189 F. 2nd, 671, 39 A. L. R. 2nd, 773. After all, pedestrians have the right to use a street when necessity therefor arises, and it would seem that a city should be obligated to exercise the same degree of care with respect to highways over which pedestrians are required to walk as that which is applicable to sidewalks. Cf. Squillace v. Mountain Iron, supra.

We proceed upon the assumption that the city, in the performance of its obligation to keep its streets open for vehicular traffic, in plowing, scooped the snow into a ridge on the sides of Limestone Street. The ridge or hummock of snow would be an impediment to a pedestrian but would not become hazardous until such time as rain may have fallen on it or the warm weather would cause it to melt into slush and the subsequent freezing temperature turn it into ice. Since there is no proof that the city had actual notice of this icy condition, it would not become liable therefor without proof that the icy condition existed for a sufficient time prior to plaintiff’s injury to constitute constructive notice thereof, and also for a sufficient length of time after such notice to have permitted the city to cure the fault and thereby prevented the injury. The period dates from the date of freezing to the date of the injury. The defendant can hardly be charged with negligence in its failure to foresee or anticipate that the ridge of snow, concerning which it is charged with having created, would remain in the street for any appreciable length of time, and with consequent thawing and freezing would be converted into any icy, hazardous condition resulting in injury to a pedestrian. A municipality is not bound to anticipate improbable or unprecedented events, and provide against their possible results. Village of Oak Harbor v. Kallagher, 52 Oh St 183. From the evidence relating to the weather, it could reasonably be inferred that the ridge of snow turned to ice the evening of December 25th following rain and a temperature of 39 degrees, and freezing temperature that evening. On cross-examination, plaintiff admitted that she had been walking across the same icy condition for some days prior to her injury, but stated that “it wasn’t as dark or frozen as hard as it was that night.” Plaintiff’s sister testified that when she went to work on the morning of the accident, the pile of snow and ice “wasn’t icy then. It was more snow. It wasn’t frozen.” One of plaintiff’s witnesses said that the snow and icy condition had existed for approximately a week, but did not say that it was icy for that period. Even upon the assumption that the snow would have turned to ice as early as December 21st when the temperature was 42°, the period is insufficient as a matter of law to constitute constructive notice to the defendant with respect to the hazard. No obligation is imposed upon a city to take unusual means and use extraordinary care to keep itself advised of the condition of its streets and highways in outlying residential sections. The existence of a hazardous accumulation of snow and ice for several days in a downtown area might be sufficient to afford a presumption of constructive notice, but this is not so as to streets remote from business districts. Chase v. Cleveland, 44 Oh St 505.

Arville v. Coyle, 33 Oh Ap 366, is to be distinguished because the city had let a firehose remain across a sidewalk for three days, and was chargeable with actual notice thereof.

The record is devoid of any evidence tending to show that it was feasible or reasonably practicable for the city to have removed the obstruction. Whether a person has exercised ordinary care is a question for the determination of the jury under all the evidence and appropriate instructions by the court. Gibbs v. Girard, 88 Oh St 34; St. Mary’s Gas Co. v. Brodbeck, 114 Oh St 423. The Supreme Court has recognized that customs and usage may be a circumstance to be considered by a jury in determining whether a defendant exercised ordinary care. Ault v. Hall, 119 Oh St 422; Witherspoon v. Haft, 151 Oh St 414. But because the introduction of such evidence may tend to inject collateral issues in a case, such testimony, relevant upon the subject, may be excluded. Jones v. Girard, 111 Oh St 258; Schwer v. New York, etc. Kd. Co., 161 Oh St 15. And it is held that in determining whether a defendant exercised that care which an ordinarily and reasonably prudent person would have exercised under the same or similar circumstances, inquiry need only be made into matters within the common knowledge of men of average, general information. Schwer v. New York, etc. Rd. Co., supra. Thus, men of average general information and intelligence may determine whether a municipality is guilty of negligence in creating a defect in a street or sidewalk or in permitting it to remain for such period of time to constitute constructive notice thereof. To support recovery upon the ground of negligence in the instant case, the jury would be required to find that it was the duty of the city, either to remove snow and ice from all crosswalks throughout the city within several days after the condition arose, or to cut paths through ridges of snow and ice which obstruct passage for pedestrians. In order to support such a finding, evidence would be required to show that such action could be reasonably accomplished. The burden rested upon the plaintiff to prove that her damage was the proximate result of the failure of the defendant to use the care which other cities are accustomed to use under the same or similar circumstances. Taphorn v. Cincinnati, 96 Oh Ap 454; Republic L. & F. Co. v. Cincinnati, 91 Oh Ap 532. Cf. Englehardt v. Phillips, 136 Oh St 13. We repeat that the law does not require what is unreasonable, nor does it condemn an act or omission as negligent which can be done or prevented only by extraordinary exertion or by the expenditure of extraordinary sums of money incident to the removal of an unusual accumulation of snow and ice.

Our conclusion that the record fails to disclose any negligence proximately contributing to plaintiff’s injury and damage disposes of the case, but we add that in our opinion the evidence reveals that the plaintiff assumed the risk resulting in her injury and was guilty of negligence proximately contributing thereto. She was fully aware of the condition of the street. It is difficult to conceive that the ridge of ice was three feet high and only two feet wide, but accepting plaintiff’s testimony as true, as we are required to do, it was an obvious hazard which she had observed and crossed on her way to and from work for several days. She elected to attempt to cross the icy obstacle in darkness or the dimly-reflected light from the bus. She “groped” her way, slipped and fell, sustaining severe and painful injuries. To her misfortune, she remained at work so that her return was delayed until darkness. The defendant is not responsible for her delayed homecoming or for the absence of the street light.

A person who brings about a condition or situation obviously dangerous to himself by voluntarily exposing himself to a hazard created by another, assumes the risk of injury so created and thereby relieves such other of legal responsibility for an injury resulting from such exposure. Masters v. New York, etc. Rd. Co., 147 Oh St 293; Cf. Porter v. Toledo T. Rd. Co., 152 Oh St 463. Winkler v. Columbus, 149 Oh St 39, involved an injury from a defect in a sidewalk occurring in daylight, but a greater degree of care is imposed upon a person exposed to a known danger at night.

One, proceeding in the dark, is not necessarily required to exercise extraordinary care, but he is required to exercise that degree of care which an ordinarily prudent person would exercise in the dark. Plaintiff knew that the icy ridge was there, she knew it was rough, slippery and hazardous. She knew she could not see it and would have to grope her way over it, with the attendant danger.

Upon the premise that the snow and ice presented a dangerous condition which the city was bound to remove and was thereby negligent in failing to remove it, it must also follow since its “nature and character” were known to the plaintiff, that it was imprudent in her to pass over it, and that she did not exercise due care in her attempt to do so. Where danger exists and the peril is known, whoever encounters it, voluntarily and unnecessarily, can not be regarded as exercising ordinary prudence, and therefore does so at his own risk. Schaeffer v. Sandusky, 33 Oh St 246. It is recognized that in the Schaeffer case there was a safer way which the plaintiff elected not to pursue. According to plaintiff’s' evidence in the instant case, there was no alternative safer route for her to use. Nevertheless she was fully aware of the hazard and the city is not to be held responsible for her delayed home-coming until dark. The rule which denies recovery because of contributory negligence on the part of an injured party is harsh but it remains an established principle originating at common law not subject to modification by judicial interpretation. Cf. Flury v. Central Pub. House, 118 Oh St 154, 166.

Judgment reversed, final judgment entered for defendant, and cause remanded to the court of common pleas for execution for costs.

-MILLER, PJ, concurs.

HORNBECK, J, dissents.

'.DISSENTING OPINION

' By'HORNBECK, J.

This is not an action based on the failure of the city to remove an unusual and dangerous amount of snow and ice which had accumulated by the action of the elements. The cases defining the duty of the city in that situation have no application to this case. The obligation enjoined upon the plaintiff in Taphorn v. Cincinnati, 96 Oh Ap 454 and Republic Light and Furniture Co. v. Cincinnati, 97 Oh Ap 532, is not of practical application in this case and, if charged by the trial judge, might result as did the giving of the instructions in Jones v. Village of Girard, 111 Oh St 258.

As no error is assigned to the charge of the court, we may assume that the jury was properly instructed as to the obligation and duty of the respective parties. Thus, all of the material issues were factual which the jury within its province had the right to and did resolve in favor of the plaintiff.

The jury must have found that the city negligently created the continuous high ridge of snow, leaving or making no openings from the street to the sidewalk, which caused the plaintiff to fall. That, considering the season of the year, the 28th of December, and weather conditions which were to be expected and had obtained for some time, the city should have known and therefore had notice, that the snow might thaw and freeze and cause the piles to become more hazardouá. Taylor v. Cincinnati, 3rd syl., 143 Oh St 427, and opinion, at page 445; that plaintiff had to go over or through the banked snow and ice to reach her home; that no safer way was shown; that plaintiff as one of the public, in the pursuit of her business was not required, in the exercise of ordinary care, to reach her home before dark and that under all the circumstances including the darkness, which at the intersection where she alighted was unusual, she did not have full appreciation of the dangerous condition in the street and that she exercised due care for her own safety.

Although there was sharp conflict in the testimony as to practically all of the issues except that plaintiff fell and was injured, there is on this appeal but the one determinative question, the weight of the evidence. The verdict and judgment are not manifestly against the weight of the evidence. The judgment should be affirmed.


author: By LEACH, J.

text:
    MEUSER et, Plaintiffs, v. SMITH et, Defendants.
    Common Pleas Court, Franklin County.
    No. 187447.
    Decided January 14, 1955.

      Barnhart & Wehr, for plaintiffs.
    Griffith & Griffith, for defendants.
   OPINION

By LEACH, J.

Defendants are the owners of an 11 acre tract of land, situated in Marion Township, Franklin County, Ohio. Plaintiffs are the owners of and reside on neighboring property. This is an action brought under authority of §303.24 R. C. (§3180-24 GC) to permanently enjoin the defendants from constructing, establishing or operating a trailer park on their 11 acre tract of land on the ground that such would be a violation of the provisions of the County Zoning Resolution which became effective as to the area in question on May 20, 1952. The principal question presented is whether the defendants had established a “nonconforming” or “existing” use. This cause was submitted to this Court on the pleadings, stipulations of fact and briefs of counsel.

The stipulations so far as pertinent read as follows:

“1. Defendants purchased the 11 acre tract described in the petition on March 27, 1952, for the sole and express purpose of developing the same as a trailer park. Said purchase was made after an investigation of the County Zoning Regulations and map to determine what locations were available, under County Zoning, for trailer park use and with the knowledge that this land, and all other lands in Marion Township, was free from zoning regulations. Defendants would not have purchased said land had it been zoned so as to prevent its use for a trailer park.
“2. Upon purchase of said premises, defendants employed an engineering firm to survey the same and to prepare complete plans and specifications for the development of the entire tract as a trailer park. A copy of said plan was submitted to the secretary of the Franklin County Rural Zoning Commission, to determine whether the same complied with the requirements of the zoning regulations as to trailer parks. Defendants were advised by letter by said secretary that said plan complied with all requirements of the zoning regulations but that since the site in question was not subject to zoning, said commission had no jurisdiction in the matter. A copy of said plan is still on file in said office. Said plans were submitted to the Franklin County Board of Health and approved by it April 18, 1952; were submitted to the Ohio Department of Health, District Office at Delaware, Ohio, and approved by it on April 25,1952, and were submitted to the Franklin County Sanitary Engineering Department and approved by it April 28, 1952. Said plans complied with all requirements of law and regulations of public authorities, and all necessary permits were obtained. A copy of said plan is submitted to the Court.
“3. Detailed plans for the construction of one of the two utility buildings shown on said plan, to-wit, the one nearer Lawrence Drive, were submitted to the Franklin County Department of Building Regulations and a permit for its construction was issued April 29, 1952. The permit describes said building as a ultility building for trailer park, and the above mentioned plan for the development of the entire tract as a trailer park was filed with said department with the application for said building permit, and is now on file with said department. Construction work was started on said building immediately and the excavation had been made and footers constructed when a temporary restraining order was issued by the Common Pleas Court of Franklin County, Ohio, in the case of Loretta Meuser, et al., Plaintiffs, v. G. Clifford Smith, et al., Defendants, No. 185126, which order was issued on or about May 2, 1952. Other than the completion of the foundation to the ground level, construction work was stopped as a result of this restraining order. Plaintiffs herein were plaintiffs in Case No. 185126.
“4. In April, 1952, defendants obtained a water tap permit on Lawrence Drive to serve all of said tract, at a fee of $110.00, and obtained a permit to cross Lawrence Drive with a sewer to serve all of said tract, at a fee of $21.00.
“5. After the purchase of said tract of land and prior to the institution of the above mentioned action, defendants purchased a bulldozer at a cost of $7200.00, a road roller at a cost of $1500.00 and a tractor at a cost of $1650.00, to be used in the construction of said proposed trailer park. Defendants had no other use for said equipment and bought it for the sole purpose of use in the construction of said trailer park.
“6. On May 11, 1952, defendants obtained from the Franklin County Department of Building Regulations a building permit for the other utility building shown on said trailer park plan. Thereafter defendants obtained a renewal of said permit to May 11, 1953, and in April, 1953, started construction of said utility building and have constructed the footers and foundation.
“7. Defendants employed legal counsel to defend the above mentioned suit, and on July 22, 1952, said restraining order was dissolved and the plaintiffs’ petition dismissed, for the reason that the same failed to state a cause of action against defendants. Defendants incurred expenses in defending said action, in order to go forward with the construction of said trailer park, in the amount of $400.00.
“8. After the dismissal of said action, defendants purchased a back hoe at a cost of $750.00, for the sole purpose of using the same in the construction of said trailer park, laid up some additional block on the foundation of said utility building and did additional grading of the south portion of the tract on which said building was located.
“9. In the fall of 1952, defendants entered into contracts for the installation of water lines, sewer lines, and electricity in said 11 acre tract, said work to be done in the spring of 1953.
“10. On May 5, 1953, permission was obtained from the County Commissioners for the construction of private sewers in this tract, to be known as ‘Private Sewer Improvement No. 499,’ said construction to be made in accordance with the above mentioned trailer park plan, which is on file in the County Sanitary Engineer’s Office. At about the same time, permission to cross Smith Road with a sewer line was issued, and immediately thereafter the sewer contractor proceeded with the installation of sewers in accordance with the prior contract. Said sewers were designed specifically to serve a trailer park. The cost of said sewer installation was $3704.07.
“11. Prior to May 20, 1952, the date when zoning became effective in Marion Township, defendants had incurred expenses in the amount of approximately $1500.00 for engineering services, legal fees, permits and construction work in connection with the proposed trailer park construction. In addition thereto, defendants had invested $10,350.00 for construction equipment bought specifically for said proposed construction, which investments would not have been made except for said purpose. Had defendants been forced to abandon said construction as a result of said zoning, the loss on the sale of said equipment would have been not less than $2500.00, and the loss on disposition thereof at this time would be substantially greater.
“12. From the date of acquisition of the property in question until the effective date of zoning in Marion Township, the defendant G. Clifford Smith devoted his full time to planning, preparing for construction, and construction of said trailer park, and the defendant Curtis A. Smith devoted a substantial portion of his time to said undertaking.
“13. Since the effective date of zoning in Marion Township, defendant G. Clifford Smith has devoted a substantial portion of his time, to-wit, approximately one-third thereof, to the furtherance of said trailer park project; contracted for the installation of water lines in said project at a cost of $2600.00 and contracted with the Jess Howard Electric Co. for the installation of electrical lines and equipment for said trailer park at a cost of $5500.00. Defendants expended approximately $300.00 for grading part of said premises in the fall of 1952 and expended the sum of $87.00 in the spring of 1953, prior to the filing of this action, for a permit to cross Smith Road with sewer and for the back filling of said crossing, and the sum of $384.00 for work on the second utility building, located north of Smith Road.
“14. The land in question was bought as one tract, for the purpose of developing a trailer park on the entire tract and the defendants would not have undertaken to construct a part of said project if they had not expected to be able to develop the entire tract for this use, as it would not be economically feasible to operate a trailer park on a part only of said tract. Because of the location of existing water and sewer facilities, it was necessary to extend these lines from the south to the north, through said tract of land.
“15. The plaintiffs are neighboring property owners to the defendants.
“16. The plaintiffs would be specially damaged by the operation of a trailer park on the south 3 acres of defendants’ tract as contemplated by the defendants.
“17. Edward Babbert, Wilbur Babbert and Carl Babbert held an oral lease given by defendants’ predecessor in title, effective until December 31, 1952, on the north 8 acres of the 11 acres owned by the defendants.
“18. The 11 acres owned by the defendants upon which they contemplate the establishment and operation of a trailer park is now and has been since May 20, 1952, zoned as residential and agricultural.
“19. The Franklin County Zoning Resolution, which constitutes the zoning regulations for zoned area in Franklin County, Ohio, may be admitted in evidence herein. Section XX B of said resolution relates to trailer coach parks. Said resolutions does not permit the establishment of trailer parks on property zoned as residential and agricultural, in the absence of a non-conforming use.
“20. The defendants have not obtained nor applied for a use permit from Franklin County, Ohio, for the operation of a trailer park on their said property.
“21. The defendants did not have the right to possession of the 8 acres of the 11 acre tract owned by them until after December 31, 1952, and did no construction work of any kind thereon until after said date.”

Case No. 185126 referred to in the stipulation was an action brought by Loretta Meuser, one of plaintiffs herein, and one Kathryn Price, on behalf of themselves and other neighboring property owners, against defendants, seeking a permanent injunction against the building or establishing of a trailer park on the same 11 acre tract of land herein involved. Such action was filed on April 30, 1952, and a temporary restraining order was issued on May 2, 1952. The prayer of the plaintiffs therein was predicated on the allegation that the establishment of such trailer park would result in a private nuisance which should be abated. That case was later submitted to the Court on a demurrer to the petition and on defendants’ motion for judgment on the pleadings. On July 16, 1952, Judge Randall of this court, rendered his decision sustaining the demurrer and sustaining the motion for judgment on the pleadings on the ground that a trailer camp is not a nuisance per se and that unless and until actual operations established the trailer park to be a nuisance, there could be no basis for injunctive relief. Entry of the Court dismissing this action was journalized on July 22, 1952.

It is the contention of plaintiffs that no “non-conforming” or “existing” use had been established by the defendants prior to the time the zoning resolution became effective as to the property in question on May 20, 1952; that mere intention, plans and even expenditure of funds for construction preliminary to actual use are not enough; that to establish a valid “non-conforming” use the premises must have been actually used for the intended purpose; that as of May 20, 1952, no trailer camp was in existence and the only work actually done was excavation preliminary to the construction of a utility building, the construction of footers and the construction of a foundation to ground level; and that in any event, there could be no “non-conforming” use established as to 8 of the 11 acres, since such 8 acres were under lease for agricultural purposes and defendants did not have the right to possession thereto or do any construction work thereon until after December 31, 1952.

Defendants on the other hand, assert that by starting construction, they did establish an “existing” use within the meaning of the applicable regulation and enabling statutes; that they acquired a vested right to complete such and use the same under the “due process” clause of the United States Constitution; that the previous action being between the same parties and seeking the same relief (although predicated on a claim of nuisance and not on a claim of violation of zoning regulations) is res judicata, the zoning resolution having become effective during the pendency of such case and plaintiffs having failed to amend their petition to allege any zoning violation; that if the previous action is not res judicata, plaintiffs are guilty of laches by failing to assert their claim of zoning violation until the filing of the petition herein on May 8, 1953; and that the 11 acre tract cannot be divided into 8 and 3 acre tracts it being a single tract of land purchased by defendant for a single purpose, such purpose requiring the use of the entire tract and plaintiffs having stipulated such facts to be true.

At one time the ownership of land was considered as carrying with it the right to use such land for any purpose, regardless of what effect such use might have on others. As our society developed, the rights of the property owner to a complete freedom of choice in its use was first restricted by the development of the theory of the power of legislative bodies and of the courts to abate and prevent “nuisances.” The development of zoning ordinances and regulations is of comparatively recent origin and it appears that the law on this subject is far from being crystallized. While zoning regulations ofttimes include prohibitions of uses which might be termed “nuisances,” it is clear that such regulations are not so limited in their scope.

While the courts have almost universally held that the fact of “existing use” and claims of “due process” of law, incident to such “existing use” are not a defense to actions by legislative bodies abating or abetting “nuisances,” it seems that a different situation is presented as to zoning prohibitions which do not involve “nuisances.” Almost all zoning regulations by their specific terms have recognized the doctrine of “non-conforming” or “existing” uses. Where the specific language of the zoning regulation has not recognized this doctrine, the same end result has been obtained by the application of the “due process” of law provision of state and federal constitutions. This distinction in the treatment of “nuisances” and of other zoning regulations appears to be based on sound principles of equity and justice. While in one sense the distinction might seem to be one only of degree and sometimes most difficult of application, it appears that such distinction is based on the theory that the declaration of a “nuisance” does not change the existing law; that a “nuisance” is wrongful per se while a change in zoning not involving “nuisance” is a change in existing law.

To the extent that legislative bodies forbid that which was formerly completely lawful (not being by its nature a “nuisance”) “due process” of law requires a court to protect rights which have become vested before such change. The difficulty, of course, is in determining exactly when rights become vested. Just what act or what series of acts must have taken place before the change to create a vested right? From an examination of the many cases cited by counsel in their briefs and of other cases, it is clear that no single or simple test has been evolved. Certain criteria and general principles are evident, however.

Plaintiffs rely on the cases of State, ex rel. The Ohio Hair Products Co. v. Rendigs, 98 Oh St 251; Smith v. Juillerat, 161 Oh St 424; Anne Arundel County v. Snyder (Court of Appeals of Maryland), 46 Atl. 2d, 689; Brett v. Building Commissioner of Brookline (Supreme Judicial Court of Massachusetts) 145 N. E. 269; Marblehead Land Company v. City of Los Angeles (Federal District Court of California); 36 Fed. 2d, 242, and Fitzgerald v. Merard Holding Company (Supreme Court of Connecticut) 147 Atl. 513. The Ohio Hair Products Case involved the question of the authority of a municipality to revoke a building permit theretofore issued for the construction of a building to be used to manufacture and process packing house by-products. After the issuance of the permit, a company had entered into contract for the erection of the building and some work had been done. An ordinance was passed prohibiting the operation of such a business within a neighborhood area and the permit was then revoked by the city. The Supreme Court held that the expenditure of money, the entering into the contracts for the erection of the building, and the commencement of work under such contracts did not give the company a vested right to retain the permit. We believe it clear, however, that the court considered the type of business involved to be a nuisance as in effect it was declared by the city council to be. In the instant case, however, the business in question has already been judicially determined not to be a nuisance by Judge Randall in Case No. 185,126. Regardless of whether Case No. 185126 is res judicata as to other aspects of the case, it obviously is res judicata as to the determination that the operation of the trailer camp in question is not a nuisance per se. Based upon the distinction heretofore discussed between nuisances and zoning prohibitions not involving the question of nuisance, it appears that the instant case is entirely distinguishable from The Ohio Hair Products case.

Smith v. Juillerat, supra, involved a situation where a township zoning resolution forbade strip mining in the area in question. Prior to the adoption of the zoning resolution by vote of the electors of the township but after the formation of the resolution, the coal company applied and received a license to strip mine coal. In that case the only work that had been done prior to the effective date of the resolution was the drilling of a hole for testing purposes. No coal had been removed and the president of the company had testified that if the test proved inadequate or unsatisfactory, no coal would have been removed even if permitted by the Court to do so. The Supreme Court held, as indicated by the 4th paragraph of the syllabus that:

“Where no substantial nonconforming use is made of property, even though such use is contemplated and money is expended in preliminary work to that end, a property owner acquires no vested right to such use and is deprived of none by the operation of a valid zoning ordinance denying the right to proceed with his intended use of the property.”

This syllabus, of course, must be read in connection with the facts of that case. The “preliminary work” referred to was not, as here, actual construction for the specific purpose of use but, work of a “testing” nature. That case, therefore, does not support plaintiffs’ contention that the trailer camp must actually be in full operation in order to establish a “non-conforming” use.

In Anne Arundel County v. Snyder, supra, the plaintiff sought a mandatory injunction to compel the issuance of a building permit for the erection of a show room, office lounge and store room. Plaintiff there applied for a building permit shortly before the adoption of zoning regulations which had the effect of prohibiting' such use. No permit was ever issued as contrasted with the case here and no actual construction work begun. The only work done was preparation of plans by an architect and grading and landscaping in preparation of the erection of improvements. Here again, it appears that the only work done was in the words of our Supreme Court “preliminary work to that end.”

In Brett v. Building Commissioners of Brookline, supra, the Court held that no “existing” use had been established merely because some excavation work had been done and on one lot “batter boards” erected. The Court concluded that since work “had only barely begun” no vested rights had been acquired and held that the Building Commissioners were authorized to revoke the building permits previously issued. That case does not support the proposition urged by plaintiffs that the use must be in full operation in order to constitute a “non-conforming” use. It does stand for the proposition that there must have been a “substantial” use made of the property in question.

Marblehead Land Company v. City of Los Angeles, supra, is similar to the case of Smith v. Juillerat, supra. Here, again, the only work which had been done was for the purpose of testing to determine the existence or non existence of oil.

In Fitzgerald v. Merard Holding Company, supra, all of the work was done without any building permit ever having been issued. Furthermore, title was taken to the premises on the very day of the adoption of the zoning regulations and what work was actually done, was done with full knowledge that it violated such regulations.

Plaintiffs rely on Sandenburg v. Miehigamme Oil Company, 249 Mich. 372; 228 N. W. 707; Lansing v. Dawley, 247 Mich. 394, 225 N. W. 500; Cold-water v. Williams Oil Co., 288 Mich. 140, 284 N. W. 675; Rosenberg v. Whitefish Bay, 199 Wis. 214, 225 N. W. 838; State, ex rel Morehouse v. Hunt, 291 N. W. 645; Wasilewski v. Biedrzyeki, 180 Wis. 633, 192 N. W. 989; Vine v. Zabriskie, 122 N. J. L. 4, 3 Atl. 2d, 886; Pelham View Apartments v. Switzer, 224 N. Y. Supp. 56; G and H Building Corporation v. N. Y., 195 N. Y. Supp. 68; Edwards v. City of Watertown, 286 N. Y. Supp. 923 and Willerup v. Village of Hempstead, 199 N. Y. Supp. 56.

While many of these cases are distinguishable from the instant case in certain respects, they all appear to stand for the proposition that where a substantial amount of work, including at least some actual construction is done in good faith and pursuant to lawful permits before the change in zoning, such work is sufficient to constitute a lawful “non-conforming” or “existing” use, and that to constitute such “nonconforming” or “existing” use, it is not necessary that the use exist in full measure prior to such change. This view also appears to be supported by State, ex rel. Schroedel v. Pagels, 257 Wis. 376, 43 N. W. 2d, 349; Lutz v. New Albany, 101 N. E. 2d, 187; and City of Omaha v. Glissmann, 151 Neb. 895, 39 N. W. 2d, 829.

This view also appears to have been adopted by Judge Gessaman of this court in Ohio State Student Trailer Park Cooperative, Inc. v. Franklin County, 68 Abs 563. In that case it was held that no “non-conforming” use had been established in view of the fact that only the acquisition of the property, the preparation of preliminary plans and some work toward the financing had been done prior to the change in zoning. After pointing out that the first work of construction had been done three months after the zoning regulation went into effect and after the property owners had been notified that their building permit was revoked, Judge Gessaman stated:

“Had some construction work been commenced prior to the effective date of the zoning resolution, a different question would have been presented to the Board of Zoning Appeals and to this court.”

Like support is given to this conclusion by the following statement in 58 Am. Jur. at page 1022:

“Ordinarily, where no work has been commenced, or where only preliminary work has been done without going ahead with the construction of the proposed building, the fact that plans had been made for the erection of a building before the adoption of a zoning ordinance prohibiting the kind of building contemplated is held not to exempt the property from the operation of the zoning regulation. On the other hand, structures in the course of construction at the time of the enactment or effective date of a zoning law are generally exempted from the restrictions or prohibitions thereof. This result has been reached, even in the absence of an express exemption of buildings in the course of construction, where the zoning law provides that no building ‘shall be erected,’ for the prohibited purpose. Indeed, there is authority to the effect that an owner of real estate who is proceeding with construction or alterations at a time when he has a right to do so acquires a vested right to proceed therewith which may not be taken away by subsequent zoning legislation.”

Reference should also be made to the fact that such view was ap-_ parently within the contemplation of the legislature in its passage of enabling legislation. Sec. 303.19 R. C. reads as follows:

“The lawful use of any dwelling, building, or structure and of any land or premises, as existing and lawful at the time of enactment of a zoning resolution or amendment thereto, may be continued, although such use does not conform with the provisions of such resolution or amendment, but if any such non-conforming use is voluntarily discontinued for two years or more, any future use of such land shall be in conformity with §§303.01 to 303.25, inclusive, R. C. The board of county commissioners shall provide in any zoning resolution for the completion, restoration, reconstruction, extension, or substitution of non-conforming uses upon such reasonable terms as are set forth in the zoning resolution.”

We are referred to no specific resolution purporting to prescribe “reasonable terms” for the “completion” of “non-conforming” uses. The failure to enact such does not, however, lessen the legislative mandate providing that such uses might be completed where it would be unreasonable to prevent such completion.

While the above discussion would indicate that there is considerable authority to support the contention that defendants by their action of actually commencing construction before the zoning regulation had met the statutory requirements of a “non-conforming” or “existing” use, it is not necessary to predicate the decision of this Court solely on this fact. We are not prepared to say that in every case a comparable amount of construction work begun before the date of the zoning regulation would result in a “non-conforming” or “existing” use. Where as here, however, such construction is coupled with many other factors indicating that as between these defendants and these particular plaintiffs, the defendants have the superior claim to existing equities, such a result must follow. It must be remembered that all of the construction work done by defendants, both before and after the effective date of zoning, was pursuant to lawful permits issued by public authority and never revoked; that defendants would have proceeded further with actual construction as of the effective date of zoning had they not been enjoined in an action later determined to be without merit; that plaintiffs did not assert the zoning change in the prior action although such change became effective prior to the Court’s decision and although they could have amended their pleadings to so allege (See Smith v. Juillerat, supra.); and that subsequent to the termination of Case No. 185126, defendants entered into other contracts and expended further sums of money with the view of completing the trailer park. Plaintiffs state in their brief that no further action was taken by them until the filing of the petition herein on May 8, 1953, because they believed that defendants had abandoned the project. There was no evidence to this effect and since the building permits theretofore issued had not been revoked by the county, it would seem that plaintiffs should have known that defendants presumably had the authority to continue to act thereunder.

We turn now to the question of whether the 11 acre tract is divisible. Plaintiffs have asserted that even if defendants had the right to complete the construction of the trailer camp on the three acres, they cannot do so on the remaining 8 acres since no actual construction had begun on this 8 acres prior to zoning and since 8 acres were under lease which did not terminate until December 31, 1952. Had defendants possessed only a contingent or uncertain right of possession in the future to these 8 acres, a different situation would have been presented. Here, however, the stipulation agreed to by plaintiffs, states that:

“The land in question was bought as one tract, for the purpose of developing a trailer park on the entire tract and the defendants would not have undertaken to construct a part of said project if they had not expected to be able to develop the entire tract for this use, as it would not be economically feasible to operate a trailer park on a part only of said tract. Because of the location of existing water and sewer facilities, it was necessary to extend these lines from the south to the north, through said tract of land.”

Furthermore, the plans submitted to public authorities before zoning, included the entire 11 acres and a building permit was issued for the erection of the building on the 8 acres and was never revoked.

On the question of the divisibility of this property, this case is entirely distinguishable from the case of Marion W. Davis v. O. C. Miller, et al., No. 180260, on the Dockets of this court. In that case Judge Harter held that the fact that certain property of the appellant had been used under lease for quarrying of stone prior to the effective date of the zoning resolution, did not entitle the appellant to use other land owned by him for this same purpose subsequent to the enactment of the zoning resolution. There Judge Harter concluded that the appellant had treated his property as to separate lots for many years and these two lots were separated by a public highway. Here, as heretofore noted, the plaintiff has stipulated that the land in question was bought as one tract for a single purpose and while there is a public highway which separates a portion of the 11 acre tract, such public highway does not separate the land into the 3 and 8 acre parcels under consideration.

The prayer of the petition that defendants be permanently enjoined from constructing, establishing or operating a trailer park upon the property in question is denied and final judgment may be entered for defendants at plaintiffs’ costs. Entry may be prepared accordingly.


author: Per CURIAM.

text:
    TUCCI, Plaintiff-Appellee, v. TOOMEY et, Defendants-Appelllants, TUCCI, Plaintiff-Appellee, v. POMPOCO, Defendant-Appellant.
    Ohio Appeals, Seventh District, Mahoning County.
    Nos. 3780, 3781.
    Decided April 13, 1955.
    William E. Pfau, Youngstown, for plaintiff-appellee.
    John J. Lynch, Jr., Youngstown, for defendants-appellants.
   OPINION

Per CURIAM.

In these cases the judge of the Municipal Court entered default judgments against Mrs. Lucy Tucci in favor of Patricia Toomey and Mrs. Anna Mulholland in case number 188629 and in favor of Mrs. Agnes E. Pompoco in case number 188630.

Subsequently counsel for Mrs. Lucy Tucci filed petitions in the Municipal Court to vacate such judgments, and tendered answers which, if proven, would constitute a defense to the claims of Patricia Toomey, Mrs. Anna Mulholland and Mrs. Agnes E. Pompoco.

The trial judge vacated the judgments previously rendered against Mrs. Lucy Tucci, and Mrs. Anna Mulholland, Patricia Toomey and Mrs. Agnes E. Pompoco prosecute appeal on questions of law from such orders of vacation.

In considering the petitions to vacate the original judgments the court upon request made and filed the following findings of fact and law, the court therein referring to Mrs. Anna Mulholland, Patricia Toomey and Mrs. Agnes E. Pompoco as the plaintiffs and Mrs. Lucy Tucci as the defendants:—

“The court finds that the defendants were not represented by counsel as of June 4, 1954, date of the default judgment. Moreover no actual notice was given to defendants of the motion or of a hearing on the motion for default judgment except by constructive notice in the Daily Legal News of Mahoning County.
“The court further finds that the custom and procedure in the Municipal Court in cases of default judgments involving the necessity of assessment of damages requires that notice be given to defendants.
“Therefore the court rules that constructive notice to defendants cannot be imputed without an attorney-client relationship.
“Furthermore the court rules that an error of mistake, neglect and omission of the clerk of courts plus irregularity in obtaining judgment was made by failure to give actual notice to defendants and that a hearing on merits both for finding of fact and assessment of damages be had.”

By brief appellants contend that:—

“There is only one question presented in this appeal, namely when a defendant after being duly served with summons on a petition filed in a Municipal Court is in default of answer and a motion is made for default judgment, is there such a duty on the part of the clerk of the municipal court, the plaintiff or the attorney for the plaintiff to give actual notice to the defendant of the hearing on the motion for default judgment which hearing also involves the assessment of damages, the breach of which duty would constitute ground for vacating a default judgment?”

In ordering vacation of the judgments and setting aside of the same for irregularity in procuring the original judgments we find the matter rests in the sound discretion of the trial court, and we cannot disturb his judgment in the absence of proof of gross abuse of such discretion, the presumption being that the judge of the Municipal Court was familiar with the practice, rules and customs of that court requiring actual service upon counsel noted upon the docket as representing Mrs. Lucy Tucci before entering default judgments involving the necessity of assessment of damages.

The judgments appealed from must therefore be affirmed.

PHILLIPS, PJ, GRIFFITH and NICHOLS, JJ, concur.


author: By CROSSLAND, J:—

text:
    ZANESVILLE PUBLISHING COMPANY, a Corporation, Plaintiff, v. INTERNATIONAL TYPOGRAPHICAL UNION, Local No. 199 et, Defendants.
    Common Pleas Court, Muskingum County.
    No. 39933.
    James Graham, Zanesville, for plaintiff.
    Ralph Marshall, Zanesville, for defendant.
   OPINION

By CROSSLAND, J:—

The assembly in front of, beside and behind the company’s premises Saturday, February 4, in the limited area involved, the number and location of building entrances and the number of persons engaged, constituted mass picketing.

Upon the facts and circumstances in evidence and factors implicit in an opposition assembly of the number of persons present, there is an implied disposition and willingness, if not a purpose, to exert or employ force, if necessary, or the implied threat thereof, to repel or restrain other persons who may wish to enter the premises, as this Court has heretofore observed and noted in all other such cases. In this Court’s judgment, therefore, mass picketing is unlawful per se and unallowable, and a court of equity will act to afford relief therefrom.

This Court has heretofore held in an injunction case, appealed unsuccessfully to the Ohio Supreme Court, that when ingredients are present that will probably result in consequences occasioning injury or damage, the anticipated consequences need not first occur in order for a complainant to be entitled to injunctive relief. That is particularly true when it concerns the personal freedom of individuals in the operation and pursuit of lawful business.

Public alleys and sidewalks, intended primarily for vehicular and pedestrian travel, cannot otherwise be utilized to the exclusion or restriction of either.

Peaceful picketing is limited to peaceful persuasion, whether express or implied, which in this instance is limited to two pickets in front of plaintiff’s premises. Accordingly, a temporary injunction is granted, continuing in effect the restraining order granted February 4th, with continuing effect of the bond then furnished.


author: By HORNBECK, J.:

text:
    SMITH, Plaintiff-Appellant, v. TORBETT, Defendant-Appellee.
    Ohio Appeals, Second District, Fayette County.
    No. 289.
    Decided October 29, 1956.

      Reed M. Winegardner, Washington C. H., Richard Huggard, Columbus, for plaintiff-appellant.
    Richard P. Rankin, Rollo M. Marchant, Washington C. H., for defendant-appellee.
   OPINION

By HORNBECK, J.:

The appeal is from a judgment for the defendant on a verdict of a jury. The action was for damages for personal injuries sustained by plaintiff when struck by an automobile driven by the defendant.

Five errors are assigned:

1. Refusal of trial court to give plaintiff’s special request to charge Nos. 1 and 2, before argument.

2. The Court erred in the general charge to the jury.

3. The Court erred in overruling plaintiff’s motion for judgment notwithstanding the verdict.

4. The Court erred in overruling plaintiff’s motion for a new trial.

5. Other errors apparent on the face of the record.

Without comment we hold against the appellant on assignments Nos. 3 and 5.

We first consider the assignment, No. 2, relating to the general charge of the Court to the jury as we consider it the most meritorious of the claims of appellant.

The pertinent facts are that the accident happened on State Route 35, a short distance southeast of Washington C. H. Route 35 extends in a north-westerly and a south-easterly direction. The plaintiff lived about a mile south of Washington C. H., left there about 2 a. m. on December 30, 1950, and started to walk to the southeast toward her home moving on the left side of the highway. The defendant, driving an automobile, was travelling in the same direction. A short time before his car struck the plaintiff he had been driving on his right side of the road; desiring to pass the automobile ahead of him, turned to his left and onto the easterly side of the highway. At about the time he was in the act of completing his turn to the right, passing the automobile ahead, he struck the plaintiff.

The negligence charge against the defendant was that he operated his automobile to the left of the center of State Route 35; failed to have his automobile under control; failed to stop, check the speed or divert the course of the automobile he was operating.

Defendant, in his answer, after a general denial of any negligence on his part, averred that there was a useable path alongside and parallel to State Route 35, that the injuries of which plaintiff complains were caused solely and directly by her negligence, in that she walked upon the travelled portion of the highway when there was a useable path parallel with the highway, without exercising ordinary care for her own safety.

The second assignment of error directed to the general charge is divided into three sub-headings:

(A) In charging on contributory negligence, when there was no evidentiary basis for such charge.

(B) In charging that if defendant’s assured clear distance ahead, was cut down by the sudden entrance of plaintiff within such assured clear distance ahead, that defendant was relieved from the duty of complying with the assured clear distance ahead statute, for the reason that there was no evidentiary basis for such charge.

(C) In charging that the jury should take the law as given it in a special instruction given before argument, together with the general charge.

(A) and (C) are not well-made. The basis of (C) is that the court having given no special instruction, it was erroneous and prejudicial to say to the jury that it should take the law as given it in the special instruction given before argument, together with the general charge. This was an inadvertence but it could not conceivably have been prejudicial to the plaintiff.

(A) Contributory negligence in one aspect of the facts developed was an issue, whether or not the plaintiff under all the circumstances appearing exercised ordinary care for her own safety in walking where the jury may have found she was walking, in view of the darkness of the night, her physical condition, her knowledge that automobiles might be coming toward her from in front or from the direction in which she was walking and the possibility that because of her wearing apparel, dark in color, she might not be visible to an on-coming motorist in time to prevent injury to herself.

(B) is directed to the charge of the court on the assured clear distance ahead statute.

The principal controversy between the parties related to the place on the highway where the plaintiff was struck. Upon the facts as developed by both parties the plaintiff was at all times pertinent to the issues walking in the highway, §4511.01 (Z) R. C., although upon plaintiff’s claim not in the roadway. Sec. 4511.01 (C. 6.) R. C. The plaintiff claimed and testified that at all times for a considerable distance (225 feet) before she was struck, she had been walking on the berm, or in the gravel, to the left of the travelled portion of the highway.

The Court charged that, as a matter of law, there was no useable walk or pathway provided parallel to the highway. Defendant claimed and testified that as he passed the automobile ahead of him he first saw plaintiff, when she was but three feet in front of his automobile and when struck, she was four feet to the right of the east edge of the paved surface. But defendant also testified that after the collision, the body of plaintiff was lying, roughly, two feet east, or to the left side of the hard surface of the road. Defendant was supported, in his contention, that the plaintiff was struck immediately after he had passed the automobile ahead of him, and when he was turning to the right to avoid collision with plaintiff. Defendant says the front left fender of his car struck plaintiff. His witness says that in his opinion, it was the left rear fender that struck her.

In the situation thus developed, the trial judge charged the jury as follows:

Fourth Specification of Negligence

“Defendant failed to stop, check the speed or divert the course of the automobile he was operating so as to avoid colliding with the plaintiff.”

“The Court says to you, as a matter of law, that §6307-21 GC, was then in full force and effect and provides in part that no person shall drive a motor vehicle at a greater speed than will permit him to bring it to a stop within the assured clear distance ahead. If you find from a preponderance of all the evidence that defendant operated his automobile at a greater speed than would permit him to bring it to a stop within the distance between his automobile and a discernible pedestrian obstructing his path or line of travel, you would find defendant guilty of negligence as a matter of law. But if you find that defendant’s assured clear distance ahead was, without his fault, cut down or lessened by the sudden entrance of a pedestrian within such clear distance ahead and into his path or line of travel and by which defendant was rendered unable, in the exercise of ordinary care, to avoid colliding with such pedestrian, then you are instructed that the defendant was relieved of or excused from the duty to comply with the assured clear distance ahead statutory provision and would not in such event be chargeable with negligence under the provisions of said statute. (Emphasis ours.)

“The court says to you that it is a question of fact, as to what the assured clear distance ahead is or was under the circumstances then and there existing. * * * As the court has already stated to you, the assured clear distance ahead provision of the statute does not apply if the assured clear distance ahead is cut down or lessened, without the driver’s fault, by the entrance within such assured clear distance ahead into his path or line of travel, of some obstruction which renders him unable, in the exercise of ordinary care, to avoid colliding with such obstruction. In other words, the assured clear distance ahead provision of the statute would not apply if there was the sudden entrance of a person into the line of travel of the driver, cutting down his previous assured clear distance ahead, so that in the exercise of ordinary care he had neither the space nor opportunity to stop his automobile before colliding with such person.”

There is no doubt about the correctness of the court’s charge respecting the conditions under which a driver is absolved from liability under the assured clear distance ahead statute. As early as 1936, this court in one of the earliest cases involving the question, Proctor v. White, 32 Abs 115, in the first headnote, said:

“1. The ‘assured clear distance ahead’ statute, §12603 GC, applies to anything in the line of vision to the motorist in the assured clear distance ahead which is static or present long enough for him to observe it and stop his car, but has no application to a movement by a person into the line of vision of a motorist so suddenly that in the exercise of ordinary care he has neither the space nor opportunity to stop his car.”

The Supreme Court in several cases subsequent to Proctor v. White has said substantially the same thing. Erdman v. Mestrovich, 155 Oh St 85; Sherer v. Smith, A Minor, 155 Oh St 567 and McFadden, Admx. v. Breuer Transportation Co. et al, 156 Oh St 430.

The appellant does not question the correctness of the principle of law announced in the general charge, but insists that there was no evidence to which the jury could apply the exception to the statute which the court charged. We are of opinion that the contention of the appellant is sound.

We have heretofore stated the testimony concerning the position of the plaintiff at the time when she was struck. She says that at all times, for a distance of more than seventy yards prior to the time of the impact, she was walking in the same place on the highway and that this place was off the edge of the improved portion thereof. The defendant says that plaintiff was walking in the improved portion. He does not say that she suddenly entered that part of the highway, nor does the answer specifically so aver. The only other witness on the subject says nothing whatever to the effect there was any sudden entrance into the travelled portion of the highway. To draw that conclusion requires too many inferences.

The second syllabus of the leading case on the subject in Ohio, Sobolovitz v. The Lubric Oil Co., 107 Oh St 204, says:

“2. An inference of fact cannot be predicated upon another inference, but must be predicated upon a fact supported by evidence.”

The only basis whatever upon which it could be inferred that there was a sudden entrance into the highway by the plaintiff was the testimony that the defendant did not see her until he was within three feet of her, but this is not sufficient to predicate the affirmative showing there y¡ras a sudden and unexpected entrance into his line of vision. The range of his vision after he entered the left side of the highway does not appear. (Emphasis ours.)

In all the cases on the subject wherein the exception has been given application there was express testimony or such testimony as that a clear inference could be drawn that there was a sudden, unexpected movement of the object struck by the motorist into his line of assured clear distance ahead. The court, having charged on the subject, the jury had the right to believe that there was evidence from which it might be inferred that the exception could be given application. Not only was the charge on the subject given once, but the court repeated it. It was erroneous and prejudicial.

The assignment of error related to the special charges is directed to charges Nos. 1 and 2 requested to be given by the plaintiff before argument. No. 1 is:

“In the absence of a useable walk or path parallel to Ohio State Route No. 35 at the place where the collision described in the petition occurred, the plaintiff was entitled by law to walk along or upon the travelled portion of Ohio State Route No. 35 and was required to face approaching traffic.”

The Court refused to give the instruction for two reasons: (1) that it was not an accurate statement of the law. This is sound because the special charge omits a material part of the statute “and shall exercise due care to avoid approaching traffic.” (2) “that the proposition is covered by the court in its general charge in detail.” This latter reason was not sufficient to justify the refusal to give the charge if it had application to the issues and stated a correct principle of law. In such a situation, the court is required to give the special charge requested before argument and a refusal to do so is prejudicial error. Chesrown v. Bevier, 101 Oh St 282; Payne, Director General of Railroads v. Vance, 103 Oh St 59; Washington Fidelity National Insurance Co. v. Herbert, 125 Oh St 591.

Special Request No. 2 reads:

“The plaintiff was entitled to assume, until such time as she had actual notice or knowledge to the contrary, that operators of automobiles travelling in a southerly direction on ü. S. Route 35, including the defendant would operate such automobile in a careful and lawful manner, and action by her in accordance with such assumption was not negligence on her part.”

The court gave this instruction in the general charge substantially as tendered with the omission of the term “actual notice.” Inasmuch as “actual notice” and “knowledge” are connected by the conjunction, “or,” it is our judgment that it would not have been prejudicial or improper to have given this charge as tendered. Even though “actual notice” would be too severe a requirement to justify the assumption of the lawful conduct of defendant, knowledge is not so qualified and if it was express or constructive, it would answer the meaning of the instruction.

Because there may be another trial of this case, we make some observations which may be helpful although they are not responsive to any error assigned, but one of them emphasizes the error in the charge as to the assured clear distance ahead statute. The general charge carried this language:

“The court says to you that no testimony was introduced to show that the left side, or northeasterly lane, of said highway was not clearly visible to the defendant, or that it was not free of oncoming traffic for a sufficient distance ahead of defendant’s automobile to permit such overtaking and passing to be completely made without interfering with the safe operation of any traffic approaching from the opposite direction or any traffic overtaken; and the court says to you that, in the absence of such testimony, the jury shall ignore and disregard said first specification of negligence as set forth in plaintiff’s petition.” (Emphasis ours.)

The first specification of negligence was that the defendant operated the automobile he was driving to the left of the center of Ohio State Route 35. This charge, in our judgment, removes from plaintiff any benefit of the assured clear distance ahead statute and ignores the testimony of the defendant that as he was about to pass the automobile ahead of him, he saw the plaintiff in his line of travel. If so, there was “traffic” to be overtaken in his line of travel and it was improper to say to the jury, there was no such traffic under the evidence. Also, upon the plaintiff’s testimony, she was in the highway and should be considered “traffic” to be overtaken by the defendant toward whom he owed the obligation which the court had charged.

The court gave a complete charge stating the issues and giving instructions on every aspect of the case. It was exceptionally comprehensive and, in the main, correct.

The court very properly charged the burden of proof respecting the negligence of the defendant and contributory negligence of the plaintiff and the conditions under which the plaintiff could or could not recover. But, at almost the end of the charge, the court inadvertently made this statement; after saying that if the jury found that both the plaintiff and defendant were negligent and that the negligence of each combined as a proximate cause to induce the injury, verdict should be for the defendant, said:

“On the other hand, if after a full and fair consideration of all of the evidence you find that the defendant was negligent and that such negligence was the proximate cause of the injury and damage to the plaintiff, then the plaintiff is entitled to recover from the defendant such sum of money as will compensate plaintiff for whatever injury or damage the evidence shows she sustained, not exceeding, of course, the amount claimed in her petition.”

This portion of the charge omits the element of contributory negligence which would only occur if and when the jury first found that the defendant was negligent. No doubt, this was an inadvertence on the part of the trial judge.

For the reasons stated this cause is reversed and remanded.

MILLER, PJ, WISEMAN, JJ, concur.


author: By REYNOLDS, J.

text:
    STATE, Plaintiff, v. ROBINETTE, Defendant.
    Common Pleas Court, Pike County
    No. 5980.
    Decided January, 1957.
    Wray Bevens, Pros. Atty., for plaintiff.
    Joseph Deutschle, W. P. Reed, for defendant.
    (REYNOLDS, J, of Franklin County, sitting by Assignment.)
   OPINION

By REYNOLDS, J.

This case is before the Court on defendant’s plea in abatement to the indictment returned by the Grand Jury against defendant.

The indictment is made up of two counts as follows:

“FIRST COUNT: Appeared as a witness before a Grand Jury duly impaneled and sworn in and for Pike County, Ohio, said Grand Jury having jurisdiction of the matters being inquired into by it and then and there before said Grand Jury the said Clifford C. Robinette on oath lawfully administered committed perjury by testifying as follows: that on or about the 14th day of July, 1955, that he did not tell, advise or inform one Cliff Beckett, Editor, Manager and Publisher of the Piketon Press that the Ralph D. Brown interests had deposited $75,000.00 in liquid assets in a Columbus bank to guarantee a performance bond to be issued by the American Surety Company of New York with respect to the construction of a water and sewer system to the proposed J. Maderia Brown hospital site; said testimony being material and being false in that said statements were made.
“SECOND COUNT: That the said Clifford C. Robinette on the date and county aforesaid appeared as a witness before a Grand Jury duly impaneled and sworn in and for Pike County, Ohio, said Grand Jury having jurisdiction of the matters being inquired into by it and then and there before said Grand Jury the said Clifford C. Robinette on oath lawfully administered committed perjury by testifying as follows: That the Manager of the Columbus Office of the American Surety Company of New York did while in his presence, contact banks and other financial institutions and ascertained that the Ralph D. Brown interests did have in liquid assets $75,000.00 or more with which to guarantee a performance bond for the construction of sewer and water facilities to the J. Maderia Brown Hospital site, said testimony being material to said cause and being false in that no such investigation was ever made.”

The plea in abatement is predicated on several grounds, but only the 4th and 5th need be considered. They are as follows:

“4. The Grand Jury out of which the indictment grew was investigating a civil matter over which it had no jurisdiction and not a criminal matter as provided for by law as its report shows.
“5. The alleged statements of the defendant which the State claims constitute perjury are not material to any criminal cause.”

Upon the hearing of defendant’s plea in abatement, a copy of the Grand Jury’s report, so far as it pertains to the case, was put in evidence. From this report it appears that the Grand Jury was considering a petition submitted to the Prosecuting Attorney charging that public funds had been misspent or misapplied by the County Commissioners or the Board of Hospital Trustees of Pike County.

It further appears that pursuant to the approval of a $500,000 bond issue for the erection of a county hospital, a Board of six members was appointed pursuant to statute to select a site and arrange for the erection and equipment of the said proposed hospital. Several sites were offered, among which were the J. Maderia Brown site and later the so-called Waverly Gables site.

The Board had found, according to the Grand Jury report, that of the first six sites proposed and considered, only the J. Maderia Brown site could meet minimum requirements necessary to participate in the Hill Burton Act, or in other words, receive Federal aid.

It was then that the site known as Waverly Gables was offered at a price of $15,000.00 and this was the site selected by the Board.

The Grand Jury reported that the evidence presented before it justified the action of the Hospital Board in selecting this site, considering the cost of the land, preparation, architectural design with respect to topography and that both water and sewer facilities were to be provided without cost to the county.

From this report the only conclusion which can be reached is that the Grand Jury had constituted itself as a reviewing body to pass upon the wisdom and authority of the Hospital Board in choosing the site selected. There is no hint of any criminal act or other irregularity having been committed by the Board or even of any criminal investigation by the Grand Jury with respect to the Board and its actions and decisions.

It must be borne in mind that outside of inspecting the County Jail, the Grand Jury’s sole duty and authority are the investigations of crimes and offenses. It has no right or authority as an advisory board or reviewing body as to other public officers, board, commissioners or authorities.

The question which then immediately suggests itself to the Court is what possible materiality there could be as to whether the owners or those interested in having the J. Maderia Brown site selected, had deposited $75,000 in liquid assets to secure a bond insuring the construction of a water and sewer system, or whether defendant had so informed a third party who was neither a member of the Hospital Board or a public official.

The answer seems obvious, namely, that it had no possible materiality to any criminal offense being investigated by the Grand Jury and while the indictment charges that defendant denied that he had told a third party about the posting of $75,000, which denial was material and false, it falls short of alleging that it was material to any crime being investigated, and therefore fails to charge a perjury.

Sec. 2915.25 R. C., provides that:

“No person, either orally or in writing, on oath lawfully administered shall wilfully and corruptly state a falsehood as to a material matter in relation to which an oath is authorized by law * * *”

The J. Maderia Brown site was not selected by the authorized Board and what possible difference could it have made or what materiality with relation to what the Board did could have been a statement by defendant or anyone else for that matter, to the effect that provision had been made to secure a bond for certain performance with respect to said site?

Assuming that defendant did make the statement charged and then denied it before the Grand Jury, the logical observation is: So What!

The Board did nothing with respect to the Brown site except to reject it as the location for the proposed hospital, and there is no suggestion that there was anything irregular, much less criminal, in its decision so that anything said or done by parties interested in the Brown site was entirely immaterial with respect to any criminal investigation as to the conduct of the Board.

The conclusion therefore is inescapable that anything said or done with reference to the Brown site is immaterial and not the proper foundation for a perjury indictment.

This could be illustrated by a situation in which the Board was charged with a misapplication of funds and upon trial, the question was asked as to whether representations were made respecting the guaranteeing of the construction of a sewer system in a property other than the one selected. If objection were made to the question, it would be sustained as being immaterial.

What has been said of the first count is equally applicable to the second count; the matter set out there charged as false being clearly immaterial to any matter properly before the Grand Jury.

The plea in abatement is therefore sustained as to both counts of the indictment.


author: By KEEFE, J.

text:
    PHOENIX INSURANCE CO., Plaintiff, v. JONATHAN WOODNER CO., Defendant.
    Municipal Court, Cincinnati.
    No. 541829.
    Decided January 24, 1955.
    Edward J. Utz, Cincinnati, for plaintiff.
    Robert G. McIntosh, Cincinnati, for defendant.
   OPINION

By KEEFE, J.

This matter has been submitted to the court upon defendant’s motion for judgment made at the close of the entire case, that is, following all the plaintiff’s evidence and the defendant’s.

In a trial without jury, such as this, where the court is the trier both of the facts and the law, and the defendant moves for a directed verdict or for judgment at the conclusion of all the evidence and argues at length in favor of such directed verdict or judgment, and the plaintiff argues fully against the granting of such motion and in favor of judgment in his favor as prayed for in his petition, even though this be in advance of closing arguments, then the case is properly before the court for the court’s finding and judgment on all the evidence. In other words, we are the trier of the issues of fact as well as issues of law, and the defendant’s motion imposes upon us the obligation of deciding whether, as a matter of fact or law, the plaintiff has failed to sustain the burden resting upon it. There is no reason why this case should proceed further (that is, to closing arguments), and we now rule upon the motion and give judgment accordingly.

The plaintiff has proven its case by a preponderance of the evidence and judgment is for the plaintiff.

There was negligence on the part of the agent of the defendant corporation while said agent was engaged in the service and duties of his employment and said negligence was the direct and proximate cause of the damages sustained by one Joe H. Cole to whose rights the plaintiff corporation has been subrogated. The agency is clearly established by a wealth of testimony, including the sworn statement of John J. Coleman who stated that he was employed by the Jonathan Woodner Company at the time of the explosion and that he was operating defendant’s equipment on the scene on different days before said explosion. Also, Mr. “Fuzzy” Mangold testified that he was employed by the defendant company at the time of the explosion and that the defendant’s bulldozers were coming up to within “two feet” of the property at 2034 Dale Road, at which address the explosion occurred. Mr. Mangold said that he performed supervisory duties for the Jonathan Woodner Company and directed the operation of the bulldozers in the vicinity of 2034 Dale Road.

Defendant’s agents must be held to have anticipated and been aware of the consequences of their operation of heavy earth-moving equipment in close proximity to a dwelling house. What did in fact occur here was a foreseeable result. An ordinarily prudent man would have anticipated what occurred as the result of the bulldozer operation — that is, damage to a gas pipe, escaping gas and ultimately, an explosion.

It should be noted that the detailed expert testimony of Mr. Earl Fertig, district superintendent of the Cincinnati Gas and Electric Company, constitutes credible and convincing proof of the sequence of events and the causation between damage to the gas pipe and the subsequent explosion. His testimony was probative not only as to the facts concerning which he testified but convincing as to his opinions respecting those facts. The court considered him well qualified to analyze the facts about which he testified.

As has been indicated, the court finds that the explosion was directly caused by the escaping gas which resulted from damage by defendant’s agent to the shut-off valve box through the operation of bulldozers, said activity coming squarely within the scope of the agent’s authority. We are convinced that our conclusion is justified without indulging in guess or conjecture.

It is the court’s best judgment that the value of the certain personal property damaged by the explosion and ensuing fire is $591.46 ($619.71 less $28.25), and judgment will be entered accordingly for plaintiff together with its costs.


author: By BARTLETT, J.

text:
    STRAWDER, Plaintiff, v. SMITH et, Defendants.
    Common Pleas Court, Franklin County.
    No. 197193.
    Decided March 8, 1957.
    Barkan, Brown, Crites & Herron, for plaintiff.
    James F. Little, for defendants.
   OPINION

By BARTLETT, J.

1. The motion to strike from the petition will be treated as a demurrer which the Court has sustained for the reason that the petition does not show any legal capacity of plaintiff to maintain such action, and does not state facts which show a cause of action in favor of the plaintiff against the defendants.

2. The motions to increase the deposit for security of costs and to post a bond, are both overruled.

The motion to strike from the petition has been treated as a demurrer thereto to facilitate the administration of justice. State, ex rel. Smith, v. Young, 137 Oh St 319.

This is an action to set aside a deed to the defendants by Anna Blackmon, deceased; and the plaintiff bases her right of action on the fact that said real estate was devised to her under the will of said decedent, Anna Blackmon, but the petition fails to disclose that the alleged will has ever been admitted to probate or record.

Until so admitted, no will is effectual to pass any real or personal estate, §3107.61 R. C.

Syl. 1. Under the statute, the last will and testament of the decedent has no force or virtue until it is probated, and until then has no legal standing as a basis for a suit in any court or as a basis for any claim to property or an interest therein on the part of the devisee of such instrument.

Syl. 2. There can be no suit in law or equity if the plaintiff has no capacity to sue, and such capacity is determined by whether he has an interest in the subject-matter of the action. Petit v. Morton et al, 28 Oh Ap 227. Motion to certify the record overruled.

Until admitted to probate, such alleged will cannot even be received as evidence of any title set up under it. Swazey’s Heirs v. Blackmon, 8 Ohio 5.

The right to maintain the action in the instant case depends for its prerequisite upon some interest, either legal or equitable, in the property, before the capacity to sue exists. In the petition there is no allegation that the plaintiff has any rights whatsoever in the property that may be considered substantive in law or equity as are necessary to pray for the relief requested. The petition does not disclose that plaintiff has any interest in the property nor the legal capacity to maintain the action. Demurrer to petition sustained.

The motions to increase the deposit for security of costs and to post a $10,000,000 bond, are both overruled for the time being.