author: By FULTON, J:

text:
    HUBER et, Plaintiffs, v. VILLAGE OF RICHMOND HEIGHTS, Defendant.
    Common Pleas Court, Cuyahoga County.
    No. 643349.
    Decided February 8, 1954.

      W. D. Cole, Cleveland, for plaintiffs.
    Roland A. Haskin, Ronald Berg, Cleveland, for defendant.
   OPINION

By FULTON, J:

Plaintiffs, owners of a sub-divided or allotted parcel of land in the Village of Richmond Heights, seek, by a declaratory judgment action, to obtain a judicial interpretation as to the validity dr invalidity of an ordinance of that village.

The ordinance deals with roads, streets, ways and lanes: (1) when, how and upon what conditions they will be accepted as publicly dedicated; and (2) when, how and upon what conditions (a) private roads, etc., may be laid out and used, and (b) land fronting upon such private roads may be sold.

The village meets the issue by claiming that the ordinance is valid, and additionally interposes two procedural defenses, namely: a defect in and misjoinder of parties. The procedural defenses are predicated on the fact that others own land in the sub-division upon the private roads involved, and that others than plaintiffs and defendants are interested in the determination sought; and under §12101-11 GC (§2721.12 R. C.) governing declaratory judgments, such other persons should be parties. A demurrer on these grounds was overruled (Thomas, J.).

Plaintiffs are owners of substantial property in this subdivision. The defendant is the municipality whose entity embraces all property within, owners thereof, as well as all residents and citizens of the village.

These procedural defenses are swept away as inconsequential. The validity .or invalidity of the ordinance is THE important question.

The legislation is designated:

“An ordinance to establish specifications for public and private roads within the Village of Richmond Heights.”

Its first section follows:

“Section 1. No road, street, highway, lane, boulevard or other way will be accepted for dedication within this village unless it has been improved in accordance with the cross .sections and specifications attached hereto and made part thereof.”

Its second section is recited:

“Section 2. No person, firm or corporation shall lay out or use any private road, street, highway, lane or boulevard for access to more than one dwelling house, or sell or offer for sale more than one lot or parcel fronting on any private road, street, highway, lane or boulevard, unless such private road, street, highway, lane or boulevard has been improved in accordance with said cross sections and specifications attached hereto and made a part hereof.”

Its third section provides:

“Said cross sections and specifications are as follows:”

(The specifications are then set forth in detail.)

Great latitude for receipt of evidence (testimony and documents) was allowed in order to ascertain (1) the situation out of which the legislation developed, (2) the problem to which the legislation is applicable, and (3)- the relationship between the legislation and the health, safety, morals and welfare of the village and its community including its residents and citizens. The impact of the evidence helped on all three points.

The specifications set forth in Section 3 of the ordinance, under the evidence, are not unreasonable. They appear to form a proper basis for acceptance by the village of dedicated streets. Plaintiffs have failed by proper preponderance of the evidence to show that these specifications are unreasonable.

Section 1, therefore, falls within the exercise of the police power by the village. It is valid legislation.

Section 2 is not so easy of solution. Its language forbids any person or corporation from (a) laying out of or (b) using any private road for “access to more than one dwelling house,” or (c) selling or offering for sale of “more than one lot or parcel fronting on any private road, street, highway, lane or boulevard,” unless such private way is constructed conformable to the specifications in Section 3.

The community of Richmond Heights is quite rural. There are still farms as well as unused raw acreage within the mu.nicipality.

Suppose one owned a lot or parcel of raw acreage with one house fronting on his private lane leading from his house to the nearest public road in the village. Assume also that he desired to build on that private land two other homes for the families of his son and son-in-law. Section 2 forbids because the private road would be used by the hypothetical father-in-law (land owner) “for access to more than one dwelling house.”

This section also would forbid this same land owner from selling or offering to sell two portions of this land fronting on this lane to strangers A and B, although he knew not the use to which A and B might put such land after their respective purchases.

Thus far the problem has been considered abstractly and upon hypotheses. Now consideration of the impact of the evidence upon the problem and of the existing law to the situation is undertaken. On this voyage the Court is not unmindful that even a court of last resort, much less a trial court, will not strike down legislation unless absolutely required by all existing circumstances (Lieux v. Westlake, 153 Oh St 646): that perhaps a trial court should never invalidate nor devitalize legislation if there is the slightest doubt about its invalidity, absent a certain and absolutely authoritative guide (Westlake v. Elrich, 52 Abs 538); and that no complainant may reasonably expect an adjudication of invalidity of legislation unless that legislation produced a present infringement of the complainant’s rights (Ambler Realty v. Euclid 272 U. S. 365).

The Village of Richmond Heights presently has no general- or complete water system. It has no sanitation sewage system.

In the allotment owned by the plaintiffs are three private ways. These were laid out by plaintiffs. One is laid out but not graded. Two are not only laid out but are fully constructed under plaintiffs’ specifications. These two streets are at right angles to each other. One of these leads to Highland Road and the other leads to Richmond Road. Their construction does not meet the specifications of Section 3 of the ordinance. These two streets were graded, drained and graveled prior to 1946. Ordinance 241, here involved, was passed in 1947. These roads were additionally surfaced thereafter. The cost to the plaintiffs of platting, grading and draining as well as the installation of gravel to the depth of eight inches slightly exceeded $15,000.00. This cost did not include the additional surfacing by slag to the depth of two or three inches in 1952.

The present cost of completely rebuilding these roads alone would now be more than the $12.00 per running foot. As plaintiffs say, by brief, the lot values on these streets do not exceed $20.00 per foot front. This gets perilously close to confiscation; but the evidence is that the two roads, now .finished do not require complete rebuilding; and that Mr. Oviatt built roads in his allotment across the street in accordance with these ordinance specifications or at least with like specifications without apparent business detriment. On the whole plaintiffs fail, by the requisite burden, to preponderate on this question.

The drainage was accomplished by the installation of culverts and sewers. These roads are generally usable and passable. They do and will support ordinary vehicular travel. There is some opinion testimony that in the spring of the year they might not, as well as a strong hint that they will not, support a fire truck or a garbage collection truck, but there is no evidence of the kind, size or character of the fire or garbage trucks to which reference was made, or whether the municipality owns either. The Court presumably is expected to, and does, take judicial notice that the references are to such characteristic vehicles in general use in municipalities in Cuyahoga County. There is evidence that these private streets will not impair nor interfere with the installation of public utility services such as light, telephone, gas and water.

Plaintiffs’ land is upon these private roads. The legislation as applied to these roads does impinge, and as other courts have said, infringe upon plaintiffs’ present rights, namely, to use these private roads, to install in the future additional private roads, and to sell and offer for sale their land by parcels or lots fronting upon these or such roads. Therefore, plaintiffs may rightfully address themselves to the alleged invalidity of this ordinance and its infringement, if any, upon these rights determined.

It is not too difficult to perceive how the prohibited right to construct and use for “access to more than one dwelling house” a private road unless built in accordance with reasonable specifications is in the interest of the health, morals, safety and welfare of the community.

Fire protection, disease prevention, and travel safety are modern “MUSTS.” As municipal communities grow these “MUSTS” are ever increasing. The “horse and buggy days” are gone forever. Therefore the prohibition against laying out of private roads for “access to more than one dwelling house” or the use of such roads for such purpose unless the roads meet the requirements of Section 3 is valid legislation.

However, it is most difficult to perceive how the prohibited sale of land on private roads not conforming to specifications contained in Section 3 is anything except an unlawful interference with one’s property rights — and as applied here to plaintiffs’ property rights it amounts to the taking of plaintiffs’ property without just compensation. As head-note or syllabus 3 of the case of State, ex rel. Weber, et al., v. Vagner Building Commissioner, 93 Oh Ap 333, recites:

“Such restraint can not totally prevent the owner from making some reasonable use of his property in the absence of proven necessity of the public’s interest.”

Legislation in restraint of alienation — indeed in restriction of use — of real property is strictly construed and all doubts are resolved in favor of the property owner, 37 O. Jur. 736.

The Court considers the prohibition against sale in Section 2 of the ordinance to be invalid legislation.

The two prohibitions contained in the section of the ordinance against (a) laying out and using a nonconforming private road for “access to more than one dwelling house” and (b) the selling or offering for sale of more than one lot or parcel on such nonconforming private road are separable. The former separated is valid; the latter separated is invalid. Counsel for plaintiffs impliedly concedes that no court should ever strike down legislation unless it is absolutely required. But he cites State, ex rel Weber, supra, as a clear guide to strike down the whole ordinance or at least all of Section 2. At first blush it seems to be a guide. There the Court of Appeals of Cuyahoga County had under consideration a Zoning Ordinance of Orange Village. One section of that ordinance prevented the construction of a dwelling house upon any street unless dedicated and accepted as a public street. There the court struck down that provision because it discovered that the evidence did not disclose what the minimum requirements were or were to be for the acceptance of a dedicated street; and, therefore, the court was unable to determine whether the requirements for dedication were reasonable or prohibitive. There the action was brought by a property owner who sought a writ of mandamus to cancel the issuance of a building permit. The court thought the pressure of that provision of the Orange Zoning Law was “being applied in the. wrong place.” It implied strongly that the pressure should be placed against the allotter or the owner of the allotment and not the property owner. Here the street specifications are known. They are found to be reasonable and relief is not sought by an owner of a lot who desires to build thereon.

Counsel for the village cites many authorities involving legislative restraint against building construction on “other than specified roads.” Here we deal with street legislation only. Those authorities are not helpful on the question of the right to sell land on “other than specified roads.”

However, the additional claim by the village is that the platting statutes §3580 et seq, GC (§711 et seq, R. C.) before amendment in October, 1953, as well as the Village Platting Ordinance 23, have been violated by plaintiffs. Though true this does not resolve the problem here presented. At all times this sub-division was known to the municipal fathers and residents as well. At all times negotiations continued between the municipal fathers and plaintiffs. Moreover, that platting Ordinance No. 23 dealt with sub-division plats and street openings and improvements and not with the sale of land

The further claim is that the amended platting statutes enacted in October, 1953, as implemented by local regulation. Ordinance 23 passed in 1922, is now and will continue to be violated. The amended statutes provide for local regulatory implementation. One should suppose that such implementation should post-date and not ante-date the statutory authority therefor. Those statutes operate prospectively, as opined by Attorney General (Ohio Bar Jan. 4, 1954 issue).

But counsel for the Village have another string to their bow. The claim is that if the prohibited sale of Section 2 of the ordinance is held invalid then in effect the court holds the similar prohibition of the new platting statutes invalid. The ordinance here is not a general platting ordinance. It is a street ordinance. Moreover, the prohibition against sale contained in the new platting statutes arise from a nonrecordation of a plat of a “sub-division.” The Attorney General’s opinion in December 14th, 1953, Ohio Bar, pages 863 and 877 both inclusive, concludes that recordation is required of plats of a “historical” sub-division, i. e„ an addition to a municipal corporation; but recordation is not required of “conventional” (this Court’s distinguishing word) sub-division as defined in §711.001 R. C. unless implemented by local rule or regulation. Recordation is permissive and not mandatory under these statutes. With this view the court is in accord.

Municipalities may legislate, in the interest of its residents how private roads may be built. The specifications in Section 3 are equally reasonable for the construction of private roads. Here the real.vice is restraint against sale. (One perceives another theoretical vice as to “use,” namely, the municipal corporation is prohibited from using these private roads to attend a fire at or collect garbage from “more than one dwelling house,” on these private streets or elsewhere in the village.)

From a practical standpoint the decision that only the selling part of section 2 of this ordinance is invalid is not too helpful to plaintiffs. Buyers may become scarce. These buyers may think the concern about the private roads is theirs as is so well stated by the Cuyahoga County Court of Appeals in the Vagner case, supra, at page 237, as follows:

“If the condition of the highway upon which a residence is situated should limit or prevent the village from rendering an otherwise available municipal service, such limitation or denial of service should be the concern of the householder and not the village.”

These prospective buyers may think, quite properly, it is their concern rather than plaintiffs’ concern. Plaintiffs’ property may not, as Mr. Oviatt stated, be readily salable. From an equally practical standpoint, the limited decision is not too helpful to the municipality unless it recognizes that the “prohibited selling” portion of Section 2 should expressly be “prohibited construction” upon a road not built in accordance with express and known specifications, reasonable in character.

(Parenthetically, by way of passing, and indeed aside from the necessity of this decision, some gratuitous observations are now indulged. It is worthy of repetition that plaintiffs laid out these private roads before the legislation was passed. It is worthy of note that there is no evidence that plaintiffs are allotter-builders. The evidence is that they are allotter-sellers. Therefore plaintiffs are not using, nor does it appear that they intend to use, these private roads as “access to more than one dwelling house.” There might arise a serious question whether any vendee from plaintiffs of one lot or parcel on which he constructs only one dwelling house fronting on such private road could be said to be using such private road for “access to more than one dwelling house” — he would be using it for access to his own, namely, one dwelling house. Logically this applies to each and every vendee and all vendees from plaintiffs unless some one vendee sought to build two or more dwelling houses and use the private road as access to them. This seems true even if title to each opposite lot extends to the center of the highway and if dwelling houses were built upon such opposite lots, because each house dweller would be using the private road for access to his separate dwelling house. The allotter-seller is not using but the allottér-builder would be using the private way for “access to more than one dwelling house.” The purpose sought is clear, and the objective desired is discernible — yet the query: does the language aptly, under rules of law, accomplish that purpose and objective.)

The Court finds from a preponderance of the evidence that—

1. Plaintiffs are owners of the land involved in this lawsuit; and such land is allotted and sub-divided.

2. No plat of this subdivision was ever formally filed, registered or recorded with or approved by the municipality or its officers.

3. The existence of the sub-division was always known to the municipality and its officers.

4. Negotiations between plaintiffs and the municipality through its officers was continuous with respect to roads in the sub-division how they should be constructed and in connection therewith the municipality had plats and street profiles in their possession from time to time.

5. Plaintiffs have laid out' three private roads and constructed two in this sub-division. The two completed roads were constructed before Ordinance 241 was adopted.

6. Specifications for the construction of these private roads as suggested by municipal officials equaled or exceeded the requirements of Section 3 of the Ordinance.

7. The specifications of Section 3 are reasonable.

8. The private roads, as built by plaintiff, do not conform to the specifications of Section 3 or to those previously suggested.

9. Nothing to indicate that plaintiffs have ever built or plan to build a dwelling house on their property in said sub-division.

10. The Village waived any claim that the Attorney General should be notified of the pendency of this proceeding which involves the alleged invalidity of an ordinance.

This Judge considered and studied all of the cited authorities and hopes that his analysis of them is reasonably accurate. As a result thereof and on basis of facts, the Court concludes that;

1. The subject matter of this lawsuit is appropriate for declaratory judgment.

2. Plaintiffs are proper parties to bring this action.

3. The municipality rightfully could and did legislate respecting specification for both public and private roads and streets.

4. Section 3 of the Ordinance 241 contains reasonable specifications and is valid.

5. Section 1 of said ordinance respecting public roads and streets is valid.

6. Section 2 of said ordinance is separable.

7. That portion of Section 2 which prohibits the laying out and the use of a private road, etc., as “access to more than one dwelling house” not in compliance with Section 3 is valid.

8. The portion of Section 2 which prohibits the sale or offering for sale of more than one lot or parcel on a non-complying private road is invalid.

A journal entry should be prepared including the foregoing findings and conclusions and containing appropriate exceptions to both sides.

Formal entry will be decree for plaintiffs, costs assessed against defendant; exceptions to all parties. O. S. J.


source: Caselaw Access Project

author: By PHILLIPS, J.

license: Public Domain

text:
    STATE, Plaintiff-Appellee, v. MULHALL, Defendant-Appellant.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3616.
    Decided October 13, 1953.
    Rendinell & Powers, Youngstown, for defendant-appellant.
    H. H. Hunt, Director of Law, I. Freeman, Asst. Director of Law, Henry J. Fugett, Police Pros., Youngstown, for plaintiffappellee.
   OPINION

By PHILLIPS, J.

Defendant appealed to this court on questions of law from a judgment of the court of common pleas, which court on defendant’s appeal thereto affirmed the judgment of the Municipal Court of Youngstown finding defendant guilty of operating a motor vehicle while under the influence of alcohol in violation of the provisions of §6296-30 GC.

Defendant’s witness, a barmaid, testified that on the morning of October 18, 1951, she drove defendant in his automobile from Cherry Grove Tavern on Hillman Street, Youngstown, Ohio, where she worked, to Falls Avenue, where she lived; that she parked defendant’s automobile there facing east on the right hand lane of traffic next to the curb with him seated in it and went to her apartment; and that when she returned a short time later to drive defendant to his place of employment defendant’s automobile was not at the place she had parked it.

Police officers of the city of Youngstown testified that about 5:15 o’clock on the morning of .October 18, 1951, they found defendant in a high state of intoxication seated in his automobile, “slumped over the wheel”; that the engine of such automobile was still running, and the automobile was facing east in the first lane of moving traffic on Falls Avenue in collision with an unattended automobile parked against the south curb of Falls Avenue facing east; and that upon inquiry defendant admitted that he was operating his automobile at the time in question.

The parties admit that defendant is charged with operation of a motor vehicle while intoxicated.

In his sole assignment of error defendant contends that “the judgment of the court of common pleas is not sustained by sufficient evidence and is manifestly against the weight thereof and is contrary to law.”

We find the evidence sufficient to show defendant’s guilt beyond a reasonable doubt.

The facts in the case of Kistler v. City of Warren, 58 Oh Ap 531, cited by the state, are almost identical with those in the case we review, in which case this court upheld conviction.

The judgment of the court of common pleas is affirmed.

GRIFFITH, PJ, NICHOLS, J, concur.


author: By SKEEL, PJ.

text:
    KIRKLAND, Plaintiff-Appellant, v. ARCHBOLD, Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22671.
    Decided February 2, 1953. '
    Hartshorn, Thomas, Leuck & Edelman, Cleveland, for plaintiff-appellant.
    Harry E. Davis, Cleveland, for defendant-appellee.
   OPINION

By SKEEL, PJ.

This appeal comes to this court on questions of law from a judgment for the plaintiff in the sum of Two Hundred Dollars ($200.00) entered by the court without the intervention of a jury. The action is founded on a written contract dated August 2, 1949, whereby the plaintiff agreed to construct certain alterations and to do certain repairs to a dwelling house located at 2321 East 88th St., in the City of Cleveland for the sum of $6000.00.

The plaintiff claims to have started the work called for by said contract about August 5, 1949, and to have continued therewith until November 5, 1949, when he was forceably and wrongfully ejected from the premises by the defendant’s agent. It is plaintiff’s claim that at the time he was wrongfully prevented from proceeding further with the work, the reasonable value of the work and materials expended by him and his sub-contractors, in repairing the building at 2321 East 88 Street, was $2985.00; that only $800.00 had been paid thereon, leaving a balance due of $2185.00, which he claims as the amount of his damages.

The defendant’s defense is that her agent, as he had the right to do under the contract, tried to stop the plaintiff from proceeding to plaster the house until he. had replaced all wood lathe with rock lathe as called for by the contract and also before the outside walls were lined with rock wool. It is the claim of defendant that plaintiff was attempting to plaster the house in direct violation of paragraph 4 of the contract, which provides:

“All outside walls are to be lined with rock wool and rock lathe, superimposed thereon.”

It was the claim of the defendant that such work, of necessity, must be done before proceeding to plaster. Defendant also claims that much of the other work accomplished by the plaintiff was unsatisfactory and performed in an unworkmanlike manner, and was of no value.

The trial was almost completely conducted by the court on the premises of the building being repaired, except for short periods when they gathered in a neighborhood settlement house. The record clearly shows that the court considered as evidence the things observed by him during the trial in the building, and that no attempt was made to describe what was thus observed into the bill of exceptions. This fact is demonstrated many places in the bill. We quote from page 127 as typical:

“Q. What did you do in the hall, if anything?
“A. Well, along the hallway, £>ut in a partition, you know Then I straightened out this partition. This partition was originally there (indicating).
“Q. What partition is that?
“A. This partition here (indicating).
“Q. Between two bedrooms downstairs?
“A. Well, this is a partition, comes across the building from the front, made a living room and a bedroom here. Come down this hallway into this bedroom and there is a door here (indicating).”

The court, in rendering judgment for the plaintiff, held that the plaintiff was in default under the provisions of the contract in that he was attempting to install the plaster before the rock wool was put in the outside walls, and the wood lathe was replaced by rock lathe, as called for by Paragraph 4 of the contract above quoted, and that the defendant acted within her rights in preventing plaintiff from proceeding with the plastering until such work had been completed.

Paragraph 20 of the contract provides:

“The Owner agrees to pay the Contractor, as follows: $1,000.00 when satisfactory work has been done for ten days; an additional $1,000.00 when twenty days work has been completed; an additional $1,000.00 when thirty days work has been completed, and $1,000.00 on completion of the contract. $2000.00 shall be paid within thirty days after the completion of the contract.”

The court held that paragraph 20 of the contract provided for progressive payments and that such provisions “are sever-able from the remainder of the contract and if there has been full or substantial compliance with these provisions, the plaintiff is entitled to recover such progress payment.” The court further held that the defendant having paid $800.00 on the first payment provided for, was an admission that ten days of satisfactory work had been done and therefore rendered judgment for $200.00, the balance due on the first payment.

The plaintiff claims the following errors:

“1. The judgment of the court below for plaintiff in the amount of only $200.00 was inadequate.
“2. The judgment of the court below, in limiting recovery to $200.00 is manifestly against the greater weight of the evidence.
“3. The judgment of the court below, in limiting recovery to $200.00 is contrary to law.
“4. The trial court erred in overruling plaintiff’s motion for a new trial.
“5. Errors in the exclusion and admission of evidence.
“6. Other errors apparent from the face of the record.”

The court committed error prejudicial to the rights of plaintiff in holding that the provisions of the contract were sever-able. The plaintiff agreed to make certain repairs and improvements on the defendant’s property for which he was to be paid Six Thousand Dollars. The total consideration was to be paid for the total work specified in the contract. The fact that a schedule of payments was set up based on the progress of the work does not change the character of the agreement. (Lumber Co. v. Purdum, 41 Oh St 373.)

The court found that the plaintiff and not the defendant breached the agreement, leaving the job without just cause, when the work agreed upon was far from completed. In fact, the plaintiff by his pleadings and evidence does not attempt to claim substantial performance on his part. The question is, therefore, clearly presented on the facts as the court found them to be, as to whether or not the plaintiff being found in default can maintain a cause of action for only part performance of his contract.

The earlier case law of Ohio has refused to permit a plaintiff to found an action on the provisions of a contract where he himself is in default. The only exception to the rule recognized is where the plaintiff has substantially performed his part of the agreement.

In the case of Larkin v. Buck, 11 Oh St 562, the syllabus provides:

“B. agreed to work for L. on his farm ‘for six months certain, at eleven dollars per month,’ no time being specified in the agreement when payment was to be made. B left the service of L. at the expiration of the first month, without cause, and against the wish of L. and brought suit to recover of L. for the month’s service. Held, that the contract was entire and that suit could not, under the circumstances, be maintained by L. for such partial performance.”

Also in the case of Ashley v. Henahan, 56 Oh St 559, parag. 1 of the syllabus provides:

“1. The general rule is, that one who seeks to recover on a contract must show substantial performance on his part, and this rule applies to a ‘building contract’ as to any other. But slight omissions and inadvertences should be disregarded. Where there has been an honest effort by the contractor to perform, and not a wilful omission, substantial performance is all that is required.”

In the case of Brick Co. v. Machinery Co., 89 Oh St 365, parag. 1 of the syllabus holds:

“1. A written contract for the sale of several articles of personal property for a sum in gross is indivisible except by subsequent agreement of the parties, and the seller cannot recover the contract price or any part thereof unless he substantially performs or tenders performance of all the terms of the contract on his part to be performed.”

See also Mehurin v. Stone, 37 Oh St 49, and Goldsmith v. Hand, 26 Oh St 101.

The result of decisions which deny a defaulting contractor all right of recovery even though his work has enriched the estate of the other party to the contract is to penalize the defaulting contractor to the extent of the value of all benefit conferred by his work and materials upon the property of the other party. This result comes from unduly emphasizing the technical unity and entirety of contracts. Some decisions permit such result only when the defaulting contractor’s conduct was wilful or malicious.

An ever-increasing number of decisions of courts of last resort now modify the severity of this rule and permits defaulting contractors, where their work has contributed substantial value to the other contracting party’s property, to recover the value of the work and materials expended on a quantum meruit basis, the recovery being diminished, however, to the extent of such damage as the contractor’s breach causes the other party. These decisions are based on the theory of unjust enrichment. The action is not founded on the broken contract but on a quasi-contract to pay for the benefits received, which cannot be returned, diminished by the damages sustained because of the contractor’s breach of his contract.

The leading case supporting this theory of the law is Britton v. Turner, 6 N. H. 481, 26 Am. Dec. 713. This was an action in quantum meruit for work performed under a contract under which the plaintiff was in default. The court said in the third paragraph of the syllabus:

“In case of a failure to perform such special contract, by the default of the party contracting to do the service, if the money is not due by the terms of the special agreement, and the nature of the contract be such that the employer can reject what has been done, and refuse to receive any benefit from the part performance, he is entitled so to do, unless he have before assented to and accepted of what has been done, and in such case the party performing the labor is not entitled tG recover however much he may have done.
“But, if upon a contract of such a character, a party actually receives useful labor, and thereby derives a benefit and advantage, over and above the damage which has resulted from a breach of the contract by the other party, the labor actually done, and the value received, furnish a new consideration, and the law thereupon raises a promise to pay to the extent of the reasonable worth of the excess. And the rule is the same whether the labor was received and accepted, by the assent of the party prior to the breach, and under a contract, by which, from its nature, the party was to receive the labour from time to time until the completion of the whole contract. or whether it was received and accepted by an assent subsequent to the performance of all which was in fact done.”

Williston on Contracts, Vol. 5, p. 4123, parag. 1475, says:

“The element of forfeiture in wholly denying recovery to a plaintiff who is materially in default is most strikingly exemplified in building contracts. It has already been seen how, under the name of substantial performance, many courts have gone beyond the usual principles governing contracts in allowing relief in an action on the contract. But many cases of hardship cannot be brought within the doctrine of substantial performance, even if it is liberally interpreted; and the weight of authority strongly supports the statement that a builder, whose breach of conract is merely negligent, can recover the value of his work less the damages caused by his default; but that one who has wilfully abandoned or broken his contract cannot recover. The classical English doctrine, it is true, has denied recovery altogether where there has been a material breach even though it was due to negligence rather than wilfullness; and a few decisions in the United States follow this rulé, where the builder has not substantially performed. But the English court has itself abandoned it and now holds that where a builder has supplied work and labor for the erection or repair of a house under a lump sum contract, but has departed from the terms of the contract, he is entitled to recover for his services and materials, unless (1) the work that he has done has been of no benefit to the owner; (2) the work he has done is entirely different from the work which he has contracted to do; or (3) he has abandoned the work and left it unfinished.
“The courts often do not discuss the question whether one who has intentionally abandoned the contract did so merély to get out of a bad bargain or whether he acted in a mistaken belief that a just cause existed for the abandonment. Where the latter situation exists, however, it would seem that the defaulter might properly be given recovery for his part performance. It seems probable that the tendency of decisions will favor a builder who has not been guilty of conscious moral fault in abandoning the contract or in its performance.”

The drastic rule of forfeiture against a defaulting contractor who has by his labor and materials materially enriched the estate of the other party, should, in natural justice, be afforded relief to the reasonable value of the work done, less whatever damage the other party has suffered. Such a rule has been clearly recognized in the law of bailment where a defaulting bailee has enhanced the property of the bailor (Dobee on Bailments, Page 139) (1914) and also by statute, a defaulting vendee in a conditional sales contract, where the vendor retakes the property, is entitled to a return of a just proportion of the money paid. Sec. 8570 GC.

We conclude, therefore, that the judgment is contrary to law as to the method by which the right to judgment was determined.

One further circumstance as to the manner in which the trial was conducted needs to be considered. The place where a trial should be conducted is in the court house. In cases where the trial judge is by agreement to try the facts (a jury being waived), the judge may view the premises as provided by §11420-2 GC. But to conduct the proceedings while moving from place to place in the building which is the subject of the trial, goes far beyond the authority given by statute to “View the Premises.” The parties to a trial are entitled to a trial conducted in a proper manner and in such a way that a full and complete record can be had for purposes of review. While the court in this case has certified to the fact that the bill of exceptions contains all the evidence, yet, a reading of the bill as above pointed out, clearly shows that what was observed, while the trial was going on, in the uncompleted house at 2321 E. 88 St., was considered as evidence although there was no attempt to bring such evidence into the bill. This court is therefore powerless to pass upon plaintiff’s claim that the finding of facts and judgment are not supported by the weight of the evidence.

The Supreme Court in Railroad Company v. Bowlin, 76 Oh St 367, declared in the opinion:

“Counsel is right in assuming that if the impressions obtained by the jury from the view, are themselves evidence in a case, there is no way in which that evidence can be carried into a bill of exceptions and hence it inevitably follows as he insists, that there is no power in a reviewing court to pass upon the weight of the evidence.”

See also Traction Co. v. Hutchinson, 27 C. C. (N. S.) 58.

But the vice of such trial goes further than the impossibility of completing a record for purposes of review. A court trial requires every safeguard available to protect the dignity and solemnity of the proceeding so that full, complete and judicious consideration may be given to the issues, unhampered by distracting surroundings. While the subject is not covered by statute in this State, as it is in many States, yet, the authority to build court houses at public expense and the control given by law to the judges to supervise their use, is indicative of a public policy requiring judicial proceedings to be conducted in the place legally provided therefor A trial judge is without power to carry on judicial proceedings completely outside the court house.

We must conclude, therefore, that the conduct of this trial in its entirety outside the court room, even though the parties participated therein without objection, constituted an abuse of discretion and the judgment must for that reason be reversed on the ground of irregularity.

Hays v. Territory of Oklahoma, 7 Okla. 15; A. L. R. Vol 43, Parag. 4, Annotations p. 1529; American Juris. Vol. 14 p. 269, Parag. 37 (Courts); American Juris. Vol. 53, page 34, Parag. 13 (Trials).

For the foregoing reasons the judgment is reversed and the cause is remanded for further proceedings. Exc. Order see journal.

HURD, J, KOVACHY, J, concur.


author: By FORD, J.

text:
    ALLEN, Employee-Appellant, v. YOUNGSTOWN MUNICIPAL RAILWAY CO., Employer-Appellee.
    Common Pleas Court, Mahoning County.
    No. 142443.
    Decided March 15, 1954.
    Traxler & Beil, Youngstown, for appellant.
    John Hardwick, Columbus, for appellee.
   OPINION

By FORD, J.

This case (with cases No. 142444 to No. 142481 inclusive) is before me on appeal by an employee of the Youngstown Municipal Railway Co. from a decision of the Board of Review of the Bureau of Unemployment Compensation, disallowing benefits under the Unemployment Compensation law §4141.01 ff R. C., because of the provisions of §4141.29 (c) 2 R. C. denying benefits to an employee who “lost his employment . . . . by reason of a labor dispute ... at the . . . establishment at which he was employed, as long as such labor dispute continues.”

Appellant, employed as a garage machinist, was laid off for lack of work because of a strike by the company bus drivers who were members of a union other than that to which appellant belonged. The Board of Review found on the evidence the reason for appellant’s unemployment was the bus drivers’ strike. I can not say that this finding was against the manifest weight of the evidence. See §4141.28 R. C.

Was the decision unlawful in that the quoted section of the act does not apply to a non member of the striking union? The Bureau seems consistently to have taken the position that the law makes no distinction in this respect and that any employee losing his employment because of any labor dispute at the employer’s establishment is not entitled to unemployment compensation. Counsel have advised that the position has recently been sustained by the Court of Appeals of Tuscarawas County, as well as the Common Pleas Court of Cuyahoga County. I have seen no report of these decisions.

On the other hand the Common Pleas Court of Hamilton County in Blum v. State, 64 Abs 30 and the Court of Appeals of Mahoning County in Diaz v. Hoppers Co., 1951 Mah. App. 177 take the opposite view. In the latter case, a motion to certify the record in the Supreme Court was dismissed by agreement. See 25 Ohio Bar 154.

In Miller v. Bureau of Unemployment Compensation, 160 Oh St 561, the Court of Appeals of Lucas County also took the opposite view and a review by the Supreme Court was denied on a jurisdictional ground.

Thus it appears that the question is still in process of settlement in the courts. As a matter of statutory language, it seems to me offhand that the Bureau’s position is quite tenable. Since, however, the Court of Appeals of this County has held otherwise (though its opinion is not clear to me especially in its use of the phrase “only indirectly due to the strike”) I feel it better to reverse the decision herein, expressing the hope that this case will be eventually reviewed by the Supreme Court on its merits and the question finally settled.

The decision of the Board of Review of the Bureau of Unemployment Compensation will be reversed and final judgment will be entered for appellant at appellee’s costs; and a similar entry will be made in each of cases No. 14244 to No. 142481 inclusive.


author: Per CURIAM. Per CURIAM.

text:
    EDWARDS, Plaintiff-Appellant, v. LYMAN, Defendant-Appellee.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3609.
    Decided October 29, 1953.

      L. M. Cailor, Youngstown,«for plaintiff-appellant.
    Mitchell, Mitchell & Reed, Youngstown, for defendantappellee.
   OPINION

Per CURIAM.

After the jury had returned a verdict for plaintiff and before judgment had been rendered thereon, the defendant filed a motion for judgment notwithstanding the verdict.

Upon hearing this motion, the court concluded, apparently, that it had erred at the trial in overruling defendant’s motion for an instructed verdict made at the close of plaintiff’s evidence and renewed at the close of all the evidence and, for that reason, rendered judgment notwithstanding the verdict.

It is that judgment that is now under review by this appeal. The action is one to recover damages for personal injuries suffered by the plaintiff in a fall from an extension ladder owned by the defendant. The weight of the evidence is not involved in this review.

The plaintiff was entirely familiar with the ladder, which he understood as fully as did the defendant. He had used it for years. There is a complete failure of any evidence tending to prove that defendant had knowledge of any defect whatsoever in the ladder.

Plaintiff was a painter of forty-seven years experience. He understood ladders. Defendant was an elderly woman in her late seventies and of poor health. Plaintiff knew her: had worked for her for years, and had used this very ladder many times without mishap.

There appears to be no conceivable reason for imposing a greater duty on defendant with respect to the condition of the ladder than would be imposed upon the plaintiff. Plaintiff inspected the ladder before using it the morning of the accident.

When construed in the light most favorable to plaintiff and giving him the benefit of all reasonable inferences, there remains nothing in his evidence to support his claim of negligence on the part of the defendant.

Having reached this conclusion it is immaterial what may have been said by the trial judge to the jury in the charge.

The final order of the trial court in granting the motion of the defendant and entering judgment non obstante veredicto is, therefore, affirmed.

Decided December 2, 1953.

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

ON APPLICATION FOR REHEARING

No. 3609.

OPINION

Per CURIAM.

The application for rehearing in this case is denied since this court found the evidence such that reasonable minds could not differ but must find that the plaintiff was guilty of negligence which directly and proximately contributed to his own injury, and therefore the trial court was not in error in sustaining the motion of the defendant for judgment in her favor.

It is therefore unnecessary for this court to pass upon the question whether the ladder was a simple tool, or whether A. N. Edwards was an independent contractor, or to distinguish between bailments, independent contractors or invitees.

Application for rehearing denied.

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


author: By BARTLETT, J.

text:
    R. K. O. PICTURES, INC. et, Plaintiffs, v. HISSONG, as Superintendent of Division of Film Censorship, etc., Defendants.
    Common Pleas Court, Franklin County.
    No. 189797.
    Decided July 31, 1954.

      Wright, Harlor, Purpus, Morris & Arnold, Columbus, for plaintiffs.
    C. William O’Neill, Atty. Geni., Robert E. Leach, Chief Counsel, Gwynne B. Myers, Asst. Atty. Geni., Columbus, for defendants.
   OPINION

By BARTLETT, J.

The plaintiffs seek to restrain the enforcement of the Motion Picture Censorship Laws of Ohio. (Secs. 3305.01— 3305.99, inclusive, R. C.) These statutes require each motion picture film shall be submitted to the defendant for examination and censorship prior to public exhibition in Ohio; and provide that “only such films as are, in the judgment and discretion of the department of education, of a moral, educational, or amusing and harmless character shall be passed and approved by such department.” The fees required to be paid for such examination, are $3.00 for each 1000 linear feet which fee is imposed upon each film examined, regardless of duplication of films of the same picture, with a criminal penalty by way of fine for each violation of such laws.

Appellant, R. K. O. Pictures, Inc., is a corporation of the State of Delaware, engaged in producing and distributing motion pictures for exhibition in Ohio and elsewhere; appellant, Independent Treatre Owner's of Ohio is a non-profit corporation of said state, owned and operated by numerous theatre owners of Ohio, organized to protect their interests in the motion picture industry; and the other two appellants are members of the Ohio corporation, who own and operate theatres for the exhibition of such motion pictures, and are residents and taxpayers of Ohio.

Plaintiffs make the following attack upon the Censorship Laws of Ohio:

(1) This state has no power to authorize censorship, and, therefore, cannot levy or collect fees for such censorship;

(2) Such fees are a tax upon free speech and free press, and are invalid as a prior restraint thereof;

(3) To require such a tax is a denial of equal protection and due process of law;

(4) The United States Supreme Court has declared censorship laws completely unconstitutional.

Plaintiffs do not confine their complaint to the effect of censorship on the showing of any particular film, nor to the validity of any particular part of such laws; but boldly challenge the constitutionality of the entire structure of the censorship laws, lock, stock and barrel.

In other words, plaintiffs now advance the argument that the sovereign state of Ohio has been relegated to the helpless state of being limited in its authority solely to the remedy of criminal prosecution after the fact for any abuse of the privileges of free speech and free publication, regardless of the potential evil of any particular motion picture They assert their legal right with impunity to exhibit publicly any motion picture even though it be known or even admitted that such exhibition will be harmful to the public welfare.

Can the plaintiffs in good conscience, so insist on their legal right regardless of the public interest?

“A Court of Equity sits as a court of conscience and will never grant an injunction when it is unconscionable to do so, even though the plaintiff may show a legal right that is about to be violated.” * * *
“A mere legal right in the plaintiff will not move the chancellor.”

Parsons v. Ohio Pail Co., 6 C. C. (N. S.) 116, 120, affirmed 74 Oh St 464, without opinion; Beach on Modern Equity; Powers appeal, 126 Penn., 175.

“A party appealing to a Court of Equity must make a case which can commend itself to the conscience of the court.”

Kellog v. Ely, 15 Oh St 64, 66; Snyder v. City of Alliance, 41 Oh Ap 48, 52.

“An application for an injunction is addressed to the sound discretion of the judge who allows it,”

and is not a matter of absolute legal right. Burnett v. Corp. of Cincinnati, 3 Ohio 73, 88; McCord et al v. Iker, 12 Ohio 387.

Plaintiffs accuse the defendant of a desire to exercise totalitarian power even though the censorship laws have clearly been held invalid by the United States Supreme Court, as the defendant still insists on infringement of the civil and property rights of the plaintiffs and others similarly situated.

Such an accusation is not only unfounded but is clearly refuted by Exhibit D of the stipulation of facts herein which discloses that the defendant sought the advice of the Attorney General of Ohio as to the procedure to be followed by the Division of Film Censorship in reviewing motion pictures in the light of the recent decisions of the Supreme Court of the United States. Such a request not only fails to show a desire to cling to any arbitrary or unauthorized power to infringe on the legal rights of interested parties, but clearly indicates a desire on the part of the defendant merely to carry out the legal duties of the Division of Film Censorship.

The Director of the Department of Education. Hon. Clyde Hissong, as Superintendent of the Division of Film Censorship, is to be commended, under the circumstances, in seeking the advice of the Attorney General; and the distinguished Attorney General, Hon. C. William O’Neill, accepted his responsibility in a magnifieient manner, by rendering a painstaking and exhaustive opinion on the difficult subject at hand.

The conclusions reached by the Attorney General surely invited a vast amount of labor for his office, as evidenced by the instant case, when he might easily have shirked his duty to the citizens of Ohio, by merely taking the position that the censorship law in Ohio was a dead pigeon.

The State of Ohio need not apologize for the conduct of either of these state officials in the matter at issue in the instant case.

While accusing the defendant of grasping for unwarranted power, it might well be noted that the plaintiffs’ absolute demand of the right to publicly exhibit any and all films, without prior restraint, regardless of their effect on the publie welfare, does not carry the same inspiration as the magic peal of Patrick Henry’s eloquence — “Give me Liberty or give me Death.”

It was said in the Burstyn case, 343 U. S. 495:

“(b) That the production, distribution and exhibition of motion pictures is a large scale business conducted for private profit does not prevent motion pictures from being a form of expression whose liberty is safeguarded by the First Amendment.”

Even under this sound statement of the law, an offensive commercial exploitation of the great freedoms guaranteed by the supreme law of the land, will not excite the conscience of a Court of Equity, like the inspiring words of Patrick Henry when he spoke for all mankind.

The mere invasion of a private right does not stir the conscience of a Court, of Equity. Burns v. Cols. Citizen Tel. Co. et al., 10 C. C. (N. S.) 307; Domscke v. Railway, 148 N. Y. 337.

“We are asked to decide this case by choosing between two mutually exclusive alternatives: that motion pictures may be subjected to unrestricted censorship, or that they must be allowed to be shown under any circumstances. But only the tyranny of absolutes would rely on such alternatives to meet the problems generated by the need to accommodate the diverse interests affected by the motion pictures in compact modern communities.”

Justice Frankfurter concurring opinion in the Burstyn case, supra.

This “tyranny of absolutes” is the position advanced by the plaintiffs in asserting their unbridled legal right to publicly exhibit any and all pictures, despite any evil effect they may generate on public decency and morals, subject only to subsequent punishment for a past offense by way of a nominal fine, after the venal purveyors of certain obscene films have reaped a rich pecuniary harvest of dollars. To limit the remedy of a sovereign state to such a type of punishment under such circumstances, would be an insult to the intelligence of the good mothers and fathers of America.

Such unbridled “tyranny of absolutes” smacks of license rather than liberty.

Liberty is not license. This history of mankind is written around the word “liberty.” To its sacred cause the master minds of ages have dedicated the loftiest gems of oratory, and in its service men have reached the summit of human greatness.

License is a mould that tarnishes the splendor of the loftiest manhood and breeds indecency, immorality, suffering and hatred.

It is the function of government to protect and preserve the liberty of our nation as well as our individual liberties, safeguarded by the Bill of Rights in our federal and state constitutions; and this requires-that license or abuse of those rights be regulated and prevented in extreme cases.

Plaintiffs boldly challenge the constitutionality of the entire structure of the censorship act of Ohio, on the premise that the State of Ohio has no power to authorize censorship of motion picture films; and, therefore, cannot levy or collect fees for such censorship, as such fees constitute a tax upon free speech and free press, and are invalid as a prior restraint thereof. They assert that the United States Supreme Court has declared all such censorship laws unconstitutional and void.

Chief reliance in support of plaintiffs’ position is placed upon the recent pronouncement of the Supreme Court of the United States in the case of Burstyn, Inc., v. Wilson, Commr, 343 U. S. 495, decided May 26, 1952, which reversed the judgment of the Court of Appeals of New York (303 N. Y. 242); but the fact remains that the Ohio Censorship law was expressly approved as a constitutional enactment, by the United States Supreme Court in the case of Mutual Film Corp., v. Industrial Commission, 236 U. S. 230 (1915), a case similar in most respects to the instant case, in that an injunction was sought to restrain the enforcement of the censorship act of Ohio, on the ground that such law was completely unconstitutional.

Shortly after the decision in the Burstyn case, supra, the Supreme Court of Ohio, in the case of Superior Films, Inc. v. Department of Education, etc., 159 Oh St 315, (1953), expressly ruled the Ohio Censorship Act was constitutional, notwithstanding the decision in the Burstyn case.

In the case of Mutual Film Corp. a distributor of motion picture films filed suit in the District Court of the United States, to enjoin the enforcement of the moving picture censorship Act of Ohio, enacted in 1913 (103 Ohio Laws, 399), which required the ’ prior approval of a board of censors before any motion picture could be publicly exhibited in the state, and directed the board to approve only such films as it adjudged to be “of a moral, educational or amusing and harmless character,” the same as still provided in the present law contained in §3305.04 R. C. The statute was assailed as an unconstitutional abridgment of the freedom of the press guaranteed by the First and Fourteenth Amendments to the Constitution of the United States. The District Court rejected this contention. (215 F. Rep. 138.)

On appeal to the United States Supreme Court, that court affirmed the decree of the District Court, denied injunctive relief, and expressly ruled as follows:

“The judicial sense, supporting the common sense of this country, sustains the exercise,of the police power of regulation of moving picture exhibitions.
“The exhibition of moving pictures is a business, pure and simple, originated and conducted for profit like other spectacles, and not to be regarded as a part of the press of the country or as organs of public opinion within the meaning of freedom of speech and publication guaranteed by the constitution of Ohio. * * *
“The moving picture censorship act of Ohio of 1913 is not in violation of the Federal Constitution or the Constitution of the State of Ohio, either as depriving the owners of moving pictures of their property without due process of law or as * * * abridging freedom and liberty of speech and opinion * *

In a series of decisions beginning with Gitlow v. New York, 268 U. S. 652 (1925), the United States Supreme Court held that the liberty of speech and the press which the First Amendment guarantees against abridgment by the Federal government is within the liberty safeguarded by the Due Process Clause of the Fourteenth Amendment from invasion by state action. Since this series of decisions came after the Mutual decision, the Burstyn case, as Justice Clark says on p. 501, in delivering the opinion of the Court in that case, was the first case to present squarely to the Supreme Court of the United States, “the question whether motion pictures are within the ambit of protection which the First Amendment, through the Fourteenth, secures to any form of ‘speech’ or ‘the press.’ ”

The United States Supreme Court in the Burstyn Case held among other things as follows:

“1. Expression by means of motion pictures is included within the free speech and free press guaranty of the First and Fourteenth Amendments.” * * *
“2. Under the First and Fourteenth Amendments, a state may not place a prior restraint on the showing of a motion picture film on the basis of a Censor’s conclusion that it is ‘sacrilegious.’ ” * * *
“(d) To the extent that language in the opinion in the Mutual Film Corp. v. Industrial Comm’n, 236 U. S. 230, is out of harmony with the views here set forth, it is no longer adhered to.”

The Burstyn case thus overruled the first principle of the Mutual Film Case, and motion picture films became entitled to the protection of the free speech and free press guaranty of the First and Fourteenth Amendments.

The basic principles of freedom of speech and the press, like the First Amendment’s command, do not vary. Those principles, make freedom of expression the rule.

It was stated in Near v. Minnesota ex rel. Olson, 283 U. S. 697, that “the protection even as to prior restraint is not absolutely unlimited. But the limitation has been recognized only in exceptional cases.” Id., at 716. In the light of the First Amendment’s history and of the Near decision, the State has a heavy burden to demonstrate that the limitation when challenged presents such an exceptional case. Burstyn case, p. 503.

In the instant case the challenge is not limited to the exceptional case, but is directed against the entire Censorship Act.

Shortly after the Burstyn decision, Superior Films, Inc., commenced an action in the Supreme Court of Ohio (159 Oh St 315), seeking to have that court vacate the defendant’s order rejecting the motion picture entitled “M” on account of being harmful, due to its depiction of certain crimes. The Supreme Court of Ohio took the view that notwithstanding the Burstyn case, p. 328, “the United States Supreme Court had not ipso facto taken away all community control of moving pictures by censorship, and the Ohio Supreme Court would not do so under the claim of complete unconstitutionality of censorship laws”; and thereupon denied the Writ of Mandamus prayed for, and expressly held as follows:

“1. Although expression by means of motion pictures is included within the freedom of speech and the press guaranty of the First Amendment to the federal Constitution, it does not follow that such Constitution guarantees absolute freedom to exhibit motion pictures of every kind at all times and in all places.
“2. Legislative power is not delegated, and the guaranty of freedom of speech and the press of the First Amendment to the federal Constitution and Section 11, Article I of the Constitution of Ohio, is not violated, by §§154-47 to 154-47Í, inclusive, GC, creating a board of censors which is required to examine and censor prior to exhibition motion picture films intended to be publicly exhibited and displayed in the state, and to pass and approve only such films as are, in its judgment, of a moral, educational or amusing and harmless character.
“3. The statutory criterion, for the examination and approval by the División of Film Censorship of moving picture films for public exhibition in the state, that such films shall be of a ‘moral, educational or amusing and harmless character,’ is sufficiently clear, definite and comprehensive.
“4. The fees required by statute for the inspection and censorship of moving picture films to be publicly exhibited within the state, even though such fees exceed to some extent the necessary cost for making the inspection, constitute license fees and not a tax and are, therefore, not discriminatory or unlawful.”

Superior Films, Inc., appealed to the United States Supreme Court which court on January 18, 1954, held in a per curiam opinion in full as follows:

“The judgments are reversed. Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495, 72 S. Ct. 777, 96 L. Ed. 1098.”

See Superior Films, Inc. v. Department of Education, etc., 74 S. Ct. 286.

In the same per curiam opinion, the United State Supreme Court also reversed the judgment of the Court of Appeals of New York (305 N. Y. 336), which had sustained an order rejecting the motion picture film “La Ronde” on the ground that it was “immoral.”

Thus, there has been only scanty, if any, elaboration of the Burstyn decision.

Upon the Burstyn decision and the per curiam reversal of the judgment in the Superior Films case, and the New York judgment, plaintiffs rest their claim that the Supreme Court has ruled that the censorship laws are totally unconstitutional and void. The record and decisions do not warrant such a conclusion.

This Court cannot accede to the proposition of law that an express decision of the Supreme Court of Ohio can be overruled by implication. If the United States Supreme Court desires to overrule a decision of the Supreme Court of Ohio, a sovereign state, let it so declare in express terms such intention.

Nearly forty years ago, in the case of Mutual Films the United States Supreme Court held “the general terms of censorship, while furnishing no exact standard of requirements, may get precision from the sense and experience of men and become certain and useful guides in reasoning and conduct.”

That aspect of the Mutual Films decision certainly was not overruled or even questioned by the Burstyn decision.

In the Superior Films case, supra, Hart, J., speaking for the Supreme Court of Ohio, says on p. 332:

“The criteria and standards of the Ohio Statute have had the attention of the United States Supreme Court wherein their definiteness has been recognized. In the Mutual Films case the court held that the criteria of the statute did leave decision to arbitrary judgment, but were deemed to have acquired precision from the judgment and experience of administrators. It is to be observed that the holding of the court on this branch in the Mutual case was not overruled or criticised in the Burstyn case.”

Again, on the same page Hart, J., says:

“Furthermore, the tests of the censorship statute have over a period of over 40 years acquired a definite and circumscribed meaning. As stated in defendant’s brief,
“ ‘The standards have enjoined the obscene, the immoral, and that which tended to promote crime or riot, judged in relation to the impact and the audience.’ ”

In the Burstyn case Justice Clark speaking for the Supreme Court of our nation, on p. 506 says:

“We hold only that under the First and Fourteenth Amendments a state may not ban a film on the basis of a censor’s conclusion that it is ‘sacrilegious.’”

Since the term “sacrilegious” was the sole standard under attack in the Burstyn case that part of its decision did not directly affect the censorship act of Ohio, since that was not one of the charts or standards of the Ohio censorship law under either its express terms or the limited interpretation placed upon its by the Supreme Court of Ohio.

In the Superior Films case, it should be noted that only the judgment itself was reversed, not the opinion or syllabi of the Ohio Supreme Court, and such reversal was based on a mere citation of the Burstyn case, with no explanation as to the extent or effect thereof. The same situation prevailed as to the reversal of the Court of Appeals of New York.

“This court will not anticipate the decision of the state court as to the application of a police statute of the state to a state of facts not involved in the records of the case before it.” Mutual Films case, supra.

“It will not be assumed, as a basis for attack under the Fourteenth Amendment or the state constitution, that one who has not applied for it will be refused a certificate, or that the Board will deny any right to which he is entitled.” Bourgois Inc. v. Chapman, et al., 301 U. S. 183; Yakus v. United States, 321 U. S. 414, 416; Smith v. Duedner, 175 F. Rep. (2nd) 629.

“Assuming that a state may establish a system for the licensing of motion pictures, an issue not foreclosed by the Court’s opinion, our duty requires us to examine the facts of the refusal of a license in each case to determine whether the principles of the First Amendment have been honored.” Justice Reed, p. 506, concurring opinion in the judgment of the court in the Burstyn case.

If Justice Reed’s opinion constitutes a sound statement of the law, then by what course of reasoning is this Court required to extend the effect of a decision of the United States Supreme Court beyond what that court itself declines to declare the extent and effect of its own decision.

The Burstyn case in effect recognizes the right of a state to establish a constitutional system for licensing motion picture films, since it saw fit to rule on sufficiency of the particular standard of “sacrilegious” involved in that case. It would hardly become the highest court in the land to lend itself to a lengthy discourse on the sufficiency of the standards or tests contained in a censorship law if any and all censorship systems were beyond the power of the state to create and maintain.

In the Superior Films case the sole standard under attack was “tends to promote crime” as applied to the particular motion picture film “M.” On appeal it is apparent that the mere citing of the Burstyn case as the basis for reversal, necessarily limits such reversal to the insufficiency of the particular standard in question.

The reversal of the New York Court of Appeals in the Commercial Pictures case on a mere citation of the Burstyn case would lead to the same consequences, since the only standard involved was the term “immoral” as applied to the picture film “La Ronde.” Such reversal must be limited to a finding that the particular standard in question was constitutionally insufficient.

Whether the reversal in the Superior Films case still permits censorship on the standard that the film in question “incites to crime or riot,” raises a grave question which the Supreme Court of the United States must make an express declaration on, before the State of Ohio is forced to abandon such a regulation.

The reversal of the New York case of Commercial Pictures on the basis that the standard “immorality” was insufficient, and, therefore, invalid, presents the same grave responsibility to the United States Supreme Court of making an express declaration as to whether its recent decisions license such films regardless of the immorality depicted and the evil effect thereof on the public welfare.

It is the opinion of this Court that the Supreme Court of the United States will never countenance any such express declaration as the law of the land; and we rebel from the thought that the sovereign state of Ohio should ever be denied the right to protect the decency and morals of its people from the impact of any offending motion picture film, regardless of the gross immorality depicted and its effect on the public welfare. We cannot regard this as beyond the power of government.

As so well stated by Justice McKenna in the Mutual Film case on p. 242:

“Besides there are some things which should not have pictorial representation in public places and to all audiences. And not only the State of Ohio but other states have considered it to be in the interest of the public morals and welfare to supervise moving picture exhibitions. We would have to shut our eyes to the facts of the world to regard the precaution unreasonable or the legislation to effect it a mere wanton interference with personal liberty.”

It has never been denied that the police power of a sovereign state constitutes a legitimate qualification of freedom of speech and press. Certainly this constitutional guaranty does not deprive the state of its power to enact laws for the protection of the public health, morals, safety, and welfare. 8 O. Jur. 468, Sec. 342.

It is the generally accepted law that the state has power to deal by its municipal law with matters deemed offensive to public morals. Commercial Pictures Case, supra, p. 561.

“There can be no inherent right to publicity which tends to destroy the very social fabric of the community and consequently in such instances there is no right of free speech or free press to be infringed.” Hart, J., speaking for the Supreme Court of Ohio, p. 327, Superior Films case.

In the Burstyn case, Frankfurter, J., in a concurring opinion on p. 518 says:

“It would startle Madison and Jefferson and George Mason, could they adjust themselves to our day, to be told that the freedom of speech which they espoused in the Bill of Rights authorizes a showing of ‘The Miracle’ from windows facing St. Patrick’s Cathedral in the forenoon of Easter Sunday.”

That such offensive exploitation of modern means of publicity is not a fanciful hypothesis, see N. Y. Times, April 14, 1952, p. 1, Col. 4.

This observation of Mr. Justice Frankfurter tends toward an admission that under recent federal interpretations of the constitutional guaranty of freedom of speech and press, we have not only broken loose from the moorings of those illustrious men who placed the Bill of Rights in the Constitution of the United States, but we have been set adrift upon the boundless sea amid a myriad of selfish commercial exploiters whose sole incentive is pecuniary gain on a vast scale with utter disdain for the public interest.

In view of the comments of Mr. Justice Frankfurter and the offensive exploitation of such modern means of public expression, as actually took place, it might not be amiss to observe that a goodly portion of the devout mothers and fathers of America yearn for a return to the simple faith of our fathers; and it would be a heartening step, indeed, if the Supreme Court of our land should develop a tendency toward the restoration of the power of the state and local governments to manage their own affairs in the public interest.

While the recent decisions of the Supreme Court of the United States have created grave concern and doubt as to the limitations and force of our censorship law on motion picture films, there is one standard in the Ohio law, “obscene” which is recognized by the Supreme Court of Ohio as a valid and constitutional standard and test on which to base censorship of such films. In fact it would appear that the United States Supreme Court itself, still recognizes the right of the state to regulate and censor motion pictures under a statute designed to prevent the showing of obscene films.

Even in the Burstyn case, Justic Clark in delivering the opinion of the United States Supreme Court on p- 505 says:

“* * *, it is not necessary for us to decide, for example, whether a state may censor motion pictures under a clearly drawn statute designed and applied to prevent the showing of obscene films. That is a very different question from the one now before us.”

In the Near case, supra, the United States Supreme Court stated that “the primary requirement of decency may be enforced against obscene publications.” 283 U. S. 697, 716.

In Chaplinsky v. New Hampshire, 315 U. S. 568, 571-572 (1942), Mr. Justice Murphy stated for a unanimous Court:

“There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.”

While the chief reliance in support of plaintiffs’ position necessarily is based upon the pronouncement of the Supreme Court of the United States in the Burstyn case, there are many phases of that decision that indicate recognition of a limited field where censorship may still be applied under both our federal and state constitutions, regardless of the constitutional guaranty of freedom of speech and the press.

Mr. Justice Clark in delivering the opinion of the Court in the Burstyn case itself on page 502, says:

“It is further urged that motion pictures possess a greater capacity for evil particularly among the youth of a community, than other modes of expression. * * * If there be capacity for evil it may be relevant in determining the permissible scope of community control but it does not authorize substantially unbridled censorship such as we have here.” * * * (Emphasis ours.)

Mr. Justice Clark continues:

“To hold that liberty of expression by means of motion pictures is guaranteed by the First and Fourteenth Amendments, however, is not the end of our problem. It does not follow that the Constitution requires absolute freedom to exhibit every motion picture of every kind at all times and all places. That much is evident from the series of decisions by this Court with respect to other media of communication of ideas.” (Emphasis ours.)

Mr. Justice Clark on p. 506 refers to the possibility of a valid statute designed to prevent the showing of obscene films as heretofore recited; and Mr. Justice Reed says the court’s opinion in the Burstyn case does not foreclose the issue that a state may establish a system of censorship of motion pictures; but that the duty of the court is to examine the facts in each case to determine whether the principles of the First Amendment have been honored, p. 506.

Even Mr. Justice Frankfurter in the same case condemns the “tyranny of absolutes” in the court being asked to choose between two mutually exclusive alternatives: motion pictures are subject to unrestricted censorship, or no censorship at all. p. 517.

From these expressions of the United States Supreme Court, the Supreme Court of Ohio, and otherwise, we conclude, that, although liberty of expression by means of motion pictures is included within the freedom of speech and the press guafanty of the First and Fourteenth Amendments of the Constitution of the United States, as well as Section 11, Article I of the Constitution of Ohio, there still remains a limited field in which decency and morals may be protected from the impact of an offending motion picture film by prior restraint under proper criteria and standards; and, to our mind, the United States Supreme Court has not ipso facto taken away all community control of moving picture films by censorship, and this Court will not do so under the claim of complete unconstitutionality of censorship laws.

We are convinced the judicial sense, supporting the common sense of this country, still sustains the exercise of the police power of a sovereign state of regulation of motion picture exhibitions in public.

We further find that the statutory criteria and standards for censorship and approval of such films for public exhibition in this state (§3305.04 R. C.), that such films shall be, “of a moral, educational, or amusing and harmless character,” under the limited and circumscribed meaning thereof as interpreted by the Supreme Court of Ohio, is sufficiently clear, definite and comprehensive, to prevent the showing of films found to be obscene, by the Division of Censorship of Ohio.

There may be further authority under the statutes to reject films which actually incite crime, or which depict extreme immorality, clearly harmful to the public interest, but under the issues raised in this case, it is unnecessary for this Court to determine the right of censorship by the State of Ohio, as to such films.

The plaintiffs further assert that the charges levied and collected by the State of Ohio are an unconstitutional tax upon freedom of speech and press.

The Supreme Court of Ohio passed upon the validity of the fees required under the censorship laws of Ohio, in the Superior Films Case, in which it held as follows:

“4. The fees required by statute for the inspection and censorship of moving picture films to be publicly exhibited within the state, even though such fees exceed to some extent the necessary cost for making the inspection, constitute license fees and not a tax and are, therefore, not discriminatory or unlawful.”

This part of the decision in Superior Films, was not affected by the reversal of the judgment by the United States Supreme Court. The recent amendment of the statute as to appropriation of any surplus fees collected does not affect the principles of law at issue in the instant case; and in view of this Court’s conclusion as to the constitutionality of the censorship law, it is not necessary to pursue further this question of fees collected.

The plaintiffs raise the further question of the invalidity of the fees collected as a denial of equal protection of the Law and Due Process.

The fees in question were held not to be discriminatory or unlawful by the Ohio Supreme Court in the Superior Film case and in the Mutual Film case, the United States Supreme Court held the Ohio Censorship law did not violate Due Process requirements of the federal and state constitutions.

The Superior Films reversal did not affect these prior holdings of the federal and state Supreme Courts.

Furthermore, as to a denial of Equal Protection of the Law, Mr. Justice Clark in delivering the opinion of the Supreme Court of the United States in the Burstyn case, p. 503, says:

“Nor does it follow that motion pictures are necessarily subject to the precise rules governing any other particular method of expression. Each method tends to present its own peculiar problems.”

This Court, therefore, denies plaintiffs’ prayer for an injunction restraining the further collecting of the fees authorized under the censorship laws; and dismisses the petition herein at plaintiffs’ costs.

Entry may be drawn accordingly with exceptions by counsel for plaintiffs.


author: By HORNBECK, J.:

text:
    BRYANT, Plaintiff-Appellant, v. INLAND PRODUCTS, INC., Defendant-Appellee.
    Ohio Appeals, Second District, Montgomery County.
    No. 2225.
    Decided April 2, 1953.

      Earl H. Moore, Jr., Fairborn, Joseph W. Sharts, Dayton, for plaintiff-appellant.
    Byron E. Holzf aster, Dayton, for defendant-appellee.
   OPINION

By HORNBECK, J.:

This is an appeal on questions of law from a judgment on behalf of defendant.

The action was for damages for personal injuries suffered by plaintiff on October 25, 1950, in a collision between a truck owned by defendant and a motorcycle ridden by plaintiff. Plaintiff was moving westwardly on Patterson Boulevard in the City of Dayton, following the truck of defendant moving in the same direction.

It was pleaded that plaintiff attempted to pass defendant vehicle on the right side and when approximately three-fourths past the truck, defendant’s driver made a sharp right turn, causing the collision.

There are four specifications of negligence, the first of which only is specifically involved in this appeal, namely; that the defendant negligently and carelessly failed to give the proper signal when attempting to make a right turn. The answer was, substantially, a general denial of any negligence as alleged.

Trial was had; motions for directed verdict at the conclusion of plaintiff's case, and at the conclusion of the whole case, were overruled. The cause was submitted to a jury, which returned a verdict for the plaintiff in the sum of $3,287.00. After the verdict, plaintiff moved for leave to amend his amended petition by inserting an additional ground of negligence to conform to the proof, which motion was denied. Thereafter, defendant moved for judgment notwithstanding the verdict on four grounds.

(1) The verdict of the jury is against the weight of the evidence.

(2) The verdict of the jury is not sustained by evidence and is contrary to law.

(3 and 4) The Court erred in overruling the motions of defendant for a directed verdict.

Manifestly, the first ground for the motion is not proper, as the action of the trial judge cannot be invoked to weigh the evidence in a motion for judgment notwithstanding the verdict.

We apply the rule as set forth in the third syllabus of Hamden Lodge v. Gas Co., 127 Oh St 469, that upon a motion to direct a verdict the party against whom the motion is made is entitled to have the evidence construed more strongly in his favor.

It develops from the plaintiff’s testimony that he was moving in the same lane and in the same direction as defendant’s driver and when quite a distance back, intending to pass the truck to its left, observed its driver giving a sign of an intention to turn to the left by holding his left hand and arm horizontally from the body and outside the cab. That the plaintiff started to go around to his left, observed the signal and a movement of the truck to its left, and then decided to pass it to its right; that there were seven or eight feet to the right of the truck; that he had gotten around the truck, and about to its door, when it suddenly swerved to the right, forcing the plaintiff against the curb and injuring him. The plaintiff on cross-examination qualified his statement as to seeing the arm of the driver of the truck but said, in substance, that he judged the position of the arm from the position of the hand.

Plaintiff, for the purpose of establishing the agency of the driver for the defendant, put the driver of the truck on the stand. He testified that he gave a signal for a right hand turn. He said that his arm extended out of the left window and beyond the bed of the truck, and that plaintiff ran into the right rear wheel of the truck. Some of the further testimony of the plaintiff tended to weaken his case, and much of the testimony was favorable to the contention of the defendant.

The trial judge, in sustaining the motion, was of opinion that there was no substantial evidence of the negligence of the defendant and that if there were, the contributory negligence of plaintiff clearly appeared.

In our judgment, this case is controlled by Pope v. Mudge, 108 Oh St 192. The first and second syllabi of which are:

1. “It is error for the court to direct a verdict against the plaintiff, where, by giving to the evidence the most favorable interpretation toward him which any of the evidence will reasonably warrant, there is some evidence tending to support the allegations of the petition.”
2. “If, in ruling upon a motion to direct a verdict, the court is required to detect the truth from conflicting evidence of the same or different witnesses, the motion should be overruled.”

Upon the question of the contributory negligence of plaintiff as a matter of law, we are required to hold with the plaintiff’s contention.

Whether or not the assured clear distance ahead statute had application was for the determination of the jury under a proper charge of the court. Proctor v. White, 22 Abs 115. Erdman v. Mestrovich, 155 Oh St 85. Of course, if the issue as to the giving of a signal was resolved in favor of the contention of the defendant, its driver would not be negligent and the question of contributory negligence of the plaintiff would not arise. If the signal was given as contended by the plaintiff, and there was a turn of the truck to the left, then contributory negligence of the plaintiff could not appear as a matter of law, but might be found from all the facts appearing.

Upon the second error assigned, the Court had wide discretion and we would not hold that it was prejudicially erroneous to plaintiff’s right to refuse the leave to amend.

If the cause is retried, the amendment can be made in due time. There is, however, a very serious question if the amendment, as proposed, is not inconsistent with, and possibly in conflict with, the theory of the plaintiff that a left hand signal was given by the operator of defendant’s truck.

The judgment will be reversed and cause remanded with instructions to overrule the motion for judgment non obstante veredicto, and for further proceedings according to law.

WISEMAN, PJ, MILLER, J, concur.


author: By THE COURT. By MILLER, J.

text:
    MILLER, Plaintiff-Appellant, v. JOHNSON et, Defendants-Appellees.
    Ohio Appeals, Second District, Franklin County.
    No. 4909.
    Decided April 2, 1953.
    Marion A. Ross, Columbus, for plaintiff-appellant.
    Hamilton & Kramer, Columbus, for defendants-appellees.
   OPINION

By THE COURT.

Submitted on motion of Robert E. Johnson, defendant-appellee, seeking an order dismissing the appeal for failure to file assignments of error and brief in accordance with Rule VII of this Court. The appeal is noted as one on law and fact. Said Rule, with reference to the time of filing of assignments of error and brief, has application to law appeals only, hence the motion is not well taken. We note the action is one for damages resulting from the collision of two automobiles. This, not being a chancery ease, is not appealable on law and fact. The Court, on its own motion, will dismiss the law and fact appeal and order the same retained for determination on questions of law only. Secs. 11564 and 12223-22 GC. The appellant will be granted leave to perfect said appeal in accordance with Supplement to Rule VII.

Decided November 2, 1953.

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

No. 4909.

OPINION

By MILLER, J.

This is a law appeal and cross-appeal from the judgment of the Common Pleas Court rendered upon the verdict of a jury. The action was one for damages arising out of a collision between two automobiles in the village of South Charleston on state route No. 42, both of which were proceeding in a westerly direction. The second amended petition sets forth two separate causes of action, one for personal injuries and the other for damages to property. The defendants were charged with negligence in the following respects:

(1) In swerving suddenly and without warning from the curb lane into the passing lane in which plaintiff was then operating his automobile.

(21 In failing to give a hand or light signal, or sound his horn or give any other warning of defendants’ intention to move into plaintiff’s lane.

(3) In failing to keep a lookout for ears approaching from-the rear, or passing at the side and to the front, either by turning and looking, or by use of a rear-vision mirror.

(4) In failing to yield the right of way to plaintiff.

A general verdict was returned in favor of the plaintiff for the sum of $37.73 and for which a judgment was rendered. The plaintiff filed a motion for a new trial and the defendant filed sundry motions for judgment, all of which were overruled.

The first three errors assigned by the plaintiff relate to the improper admission and rejection of evidence and testimony, none of which we find to be well grounded.

The fourth error assigned urges that the Court should have given special charges Nos. 1, 2, 3 and 4 requested by the plaintiff, before argument. Each of these was on the question of negligence of the defendant as a matter of law. It is quite obvious that the failure to give the requested charges could not have been prejudicial as the verdict was in favor of the plaintiff and was grounded upon the negligence of the defendant, Robert E. Johnson, Louise E. Johnson having been previously dismissed from the action.

The fifth error assigned urges that the Court improperly charged the jury on contributory negligence. This question was not prejudicial to the plaintiff for the verdict indicates that the jury found that the plaintiff was not guilty of the same; otherwise, the verdict would have been in favor of the defendant on both causes of action. Counsel for the plaintiff concedes in his brief that the major error assigned is that the verdict is against the manifest weight of the evidence; that the sum awarded is grossly inadequate. The record ' reflects that the collision occurred in the latter part of April, 1949, at which time the plaintiff received a slight bump on the head; that on July 4th of that year the plaintiff suffered a cerebral thrombosis from which there has been no recovery. Whether or not there was a causal connection between the head injury and the thrombosis attack on July 4th was a factual question, the burden of the proof of same being upon the plaintiff. We are of the opinion the verdict is clearly inadequate, if the plaintiff’s ill health resulted from the collision, but on the other hand it is adequate if the only damages the plaintiff suffered were those to his automobile. The verdict here is general and must be sustained unless it is clearly inconsistent with any theory provable under the issues and which the evidence tends to support. 2. O. Jur. (Appellate Review) Ft. 2, p. 1049. We And the verdict is consistent with the provable theory that the only damages suffered by the plaintiff were those to his automobile. The question, therefore, arises whether or not from the evidence presented the jury' should have found in favor of the plaintiff for his subsequent thrombosis attack. The record reveals there was a conflict in the testimony on this question and it was within the province of the jury to make this determination. It discloses that the plaintiff stated immediately after the accident that he was not injured; that approximately one month later his attorney wrote a letter to the defendant in which only property damages were claimed; that Dr. Abbott attended the plaintiff, qualified as an expert and testified in chief that it was his opinion the cerebral thrombosis was caused by the head injury received in the accident. However, on cross-examination he testified that plaintiff’s condition could have occurred without trauma or personal injury of any kind. The gist of his testimony was that in his opinion there was a causal connection between the plaintiff’s head injury and the cerebral thrombosis, although there may have been other causes; that such a condition often occurs while one is asleep, reading or walking. There was no further medical testimony offered.

The defendant offered evidence tending to establish the fact that the plaintiff pursued his regular course of business of traveling by means of automobile from the time of the accident up to the following July 2nd. By resolving every reasonable intendment in favor of the verdict, which we are required to do, we cannot say that it is against the manifest weight of the evidence. Where the evidence is susceptible of more than one construction a reviewing court is bound to give it that interpretation which is consistent with the verdict and judgment. Industrial Commission v. Runyan, 16 Abs 418. We find no error in the record prejudicial to the rights of the plaintiff-appellant.

We shall next give consideration to the cross-appeal of the defendant who urges that the Court erred in not sustaining his various motions, to wit:

1. Motion to direct a verdict in defendant’s favor at the close of all of the evidence.

2. Motion for a judgment on the special findings of fact found by the jury.

3. Motion for a judgment notwithstanding the verdict of the jury.

The record discloses that the following interrogatories were submitted to the jury, which we quote together with the answers:

“Q. No. 1. Do you find that the actual impact between the automobile of plaintiff and the automobile of defendant occurred at the intersection of route 42 and Williams Street?
“A. No. ■
“Q. No. 2. If your- answer to question No. 1 is ‘No,’ then did the impact occur within 100 feet of the Williams Street and route 42 intersection?
“A. Yes.”

It is the defendant’s contention that since the jury found the impact between the two automobiles occurred within 10C feet of the intersection of route 42 and Williams Street, that there was clearly a violation of §6307-30(a)3 GC. This section provides:

“(a) No vehicle or trackless trolley shall, in overtaking and passing traffic, or at any other time, be driven to the left of the center or center line of the roadway under the following conditions:
“3. When approaching within one hundred feet of or traversing any intersection or railroad grade crossing, unless compliance with this section is impossible because of insufficient roadway space.”

It will be noted that the interrogatory does not state that the plaintiff was to the left of the center of the street at the time of the impact. Our examination of the record discloses that there was a conflict in the testimony as to the position of the plaintiff’s car with reference to the side of the street at this time. There was evidence supporting the plaintiff’s theory that his car was to the right of the center, and there was very strong evidence supporting tne defendant’s theory that the plaintiff’s car was to the left of the center. The position of the plaintiff’s car at the time of the impact was a factual question which we may not determine. Therefore, we cannot say there was a violation of the aforesaid cited section of the Code. The trial court did not err in overruling the various motions submitted by tne defendant.

Finding no error in the record, the judgment will be affirmed.

WISEMAN, PJ, HORNBECK, J, concur.