author: By STEVENS, PJ.

text:
    DAVIS et, Appellees, v. McPHERSON et, Appellants. BILLMAN et, Appellees, v. McPHERSON et, Appellants.
    Ohio Appeals, Ninth District, Summit County.
    Nos. 4512, 4513.
    Decided June 8, 1955.
    Alva J. Russell, Pros. Atty., Gilbert A. Hartz, Asst. Pros. Atty., Akron, for appellees in Case No. 4512.

      Buckingham, Doolittle & Burroughs, Akron, for appellees in Case Vo. 4513.
    Ernest R. Genovese, Akron, for appellants in Each Case.
   OPINION

By STEVENS, PJ.

The above-captioned appeals on questions of law were heard and submitted together in this court.

The first action, filed in the Common Pleas Court, was one in which the trustees of Bath Township were plaintiffs. Said action sought a temporary and a permanent injunction against defendants to prevent them from maintaining a trailer park, or camp, in alleged violation of the zoning ordinance of Bath Township,

The second-captioned action was filed by 109 property owners of Bath Township against defendants, wherein was sought a temporary and a permanent injunction against defendants maintaining a trailer park, contrary to the provisions of the zoning ordinance of Bath Township.

Upon trial in the Court of Common Pleas, permanent injunctions were issued against defendants maintaining and operating upon their premises the trailer camp presently located and operated thereon.

From the judgments so entered, defendants have appealed to this court on questions of law.'

■ The cases were submitted upon an agreed statements of facts, which is incorporated into the bill of exceptions.

In 1952, pursuant to vote of the electors of Bath Township, Summit County, Ohio, a comprehensive zoning resolution was adopted by the majority of said electors, at a duly-held election, in compliance with the provisions of §519.02 R. C., et seq.

Thereafter, and while said zoning ordinance was in full force and effect, the defendants constructed and operated a trailer park, or camp, within Bath Township. Plans for said park were approved by the Department of Health of the State of Ohio, and permits for the operation thereof were issued by the Summit County Department of Health for the years 1953 and 1954.

No zoning certificate was ever issued to defendants, by the township zoning inspector, to construct or operate the trailer park in question in Bath Township.

The appellants present the following questions:

“(A) Is Article 13, Sec. A-ll, of the Zoning Resolution of Bath Township, reading as follows—

“ ‘No trailer or cabin camp shall be permitted on any land in any of the seven district classifications herein established’—

invalid because it is in violation of Amendment XIV, Section 1, of the Constitution of the United States, and Article 1, Section 19, Constitution of Ohio (1851), and the enabling statute for township zoning (§519.02 R. C.)?

“(B) Is Article 10, Sec. A-3, of the Zoning Resolution of Bath Township, which covers the layout and lot area restrictions of residences, inapplicable to a trailer camp in a business district by reason of it thus being contrary to Regulations 267 and 268 of the Public Health Council pursuant to §3733.01 K. C., et seq, and therefore in conflict with the general law of the state, and thus unconstitutional?”

We think the first question propounded by appellant is answered in the negative by these decisions of the Supreme Court of Ohio: Pritz v. Messer, 112 Oh St 628; State, ex rel. Jack, et al., v. Russell, Bldg. Commr., 162 Oh St 281.

The latter case states:

“1. Zoning ordinances which are not purely fanciful or esthetic but which are reasonable and comprehensive in their application and have a relation to the public health, morals and safety do not violate Sections 1, 16 and 19, Article I of the Ohio Constitution, or Section 1, Article XIV of the Amendments to the Constitution of the United States.”

We are of the opinion that the zoning resolution here under consideration is “not purely fanciful or esthetic,” but, on the contrary, is “reasonable and comprehensive” in its application, and does have a relation to the public health, morals and safety of Bath Township. See also: Shick v. Ghent Road Inn, Inc., No. 4186, Court of Appeals for Summit County, decided on June 13, 1951.

The wisdom of the adoption of a zoning resolution, which not only prohibits trailer parks, within the township, but which likewise fails to provide any district where they may be constructed or operated, was a question to be decided by the electors of Bath Township By adopting the resolution in question, they decided against the construction and operation of trailer parks within said township.

It is not within the judicial function for this court, under the circumstances here present, to pass upon the wisdom of the adoption of said zoning resolution. Moreover, these defendants entered upon the construction of their trailer park, and have maintained the same with full knowledge (actual and constructive) of the existence of the Bath Township Zoning Resolution, before, during and after said construction.

It follows that defendants acted at their peril; and that, unless the resolution offends constitutional provisions or legislative enactments, the defendants are in violation thereof.

The second question propounded by appellants may be thus paraphrased: Has the state, under the provisions of §3733.01 R. C., et seq, and regulations 267 and 268 of the Public Health Council, enacted in pursuance of said Code sections, pre-empted the field of legislation with respect to the regulation of trailer parks?

That question has likewise been answered in the negative by the Supreme Court of Ohio, In the case of Stary, et al, v. City of Brooklyn, et al, 162 Oh St 120, syllabus 1 states:

“1. Secs. 1235-1 to 3235-5 GC, constitute laws of general application, but, by the enactment of those statutes, the General Assembly of Ohio did not pre-empt the field of legislation with respect to regulation of trailer camps or trailer parks so as to bar the enactment of municipal legislation on the same subject.”

We hold that the Bath Township zoning resolution is reasonably comprehensive in its application, and has a reasonable relation to the preservation of the public health, safety, and morals; that it does not conflict with general laws, and hence is a valid, enforcible enactment; and that the enforcement of the provisions of said resolution against the defendants does not contravene state or federal constitutional provisions.

Judgment affirmed in each case.

HUNSICKER, J, DOYLE, J, concur.


source: Caselaw Access Project

author: By MILLER, PJ. WISEMAN, J,

license: Public Domain

text:
    McDONALD, Plaintiff-Appellant, v. KELLY, Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 5256.
    Decided June 21, 1955.

      Carl H. Valentine, Columbus, for plaintiff-appellant.
    Jenkins, Williams, Wendt, Murray & Deeg, Columbus, for defendantappellee.
   OPINION

By MILLER, PJ.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Franklin County, entered on a verdict returned in favor of the defendant.

This is an action for damages growing out of an automobile collision which occurred at about midnight on November 16, 1951, at the intersection of West Mound Street and Wayne Avenue in the City of Columbus. West Mound Street, which is a “through highway,” extends in an easterly and westerly direction, and Wayne Avenue is a non-favored highway extending in a northerly and southerly direction, intersecting West Mound Street at right angles.

The plaintiff in his petition charged the defendant with failure to stop before entering the intersection, with failure to yield the right-of-way to plaintiff, with traveling at a speed greater than was reasonable or proper, and at a greater speed than would permit him to bring his automobile to a stop within the assured clear distance ahead. The defendant’s answer was in the nature of a general denial.

Plaintiff was driving his automobile in an easterly direction on Mound Street and defendant was driving his automobile in a northerly direction on Wayne Avenue. The collision occurred in the southern part of the intersection, the left front of defendant’s automobile coming into contact with the right front of plaintiff’s automobile. After the impact the defendant’s automobile came to rest at the southeast corner of the intersection; the plaintiff’s automobile continued on eastward on Mound Street, coming to rest on the sidewalk on the north side of Mound Street, a distance of some 75 to 100 feet east of the place of collision.

The defendant testified that in approaching Mound Street he had stopped in the observance of a stop sign before entering the intersection; that his automobile was in low gear and he was traveling between 8 and 10 miles an hour. There is a conflict in the evidence as to whether the defendant stopped before entering the intersection. The defendant testified that a moment before the collision he saw the reflection of the lights on the plaintiff’s automobile; that he looked to his left, saw the plaintiff’s automobile and applied the brakes, and then the collision occurred. The defendant testified that the front end of his automobile was approximately three feet north of the south curb line of Mound Street when the collision occurred.

The plaintiff testified that he was traveling between 20 and 25 miles per hour; that he did not look to the south as he approached or entered the intersection; that he did not see the defendant’s automobile until the moment of the impact; that he did not apply his brakes either before or after the collision. The plaintiff claims that his failure to apply the brakes after the collision was due to injuries sustained to his knee as a result of the collision.

The appellant claims the court erred in the admission of evidence; in giving a special instruction requested by the defendant, and in the general charge; that the judgment is not sustained by sufficient evidence and is contrary to law.

There was evidence admitted, over the objection of counsel for the plaintiff, that there was a sign on the south side of Mound Street, a short distance west of Wayne Avenue, with the word “slow” printed thereon in large letters. No attempt was made to show that the sign was erected under public authority, or that it was of the kind or character authorized by law.

The evidence relative to the existence of a “slow” sign on Mound Street was properly admitted. In the absence-of proof to the contrary it is presumed that such sign directing traffic on Mound Street was erected by lawful authority. The warning effect of the sign is in no wise impaired by the failure to show affirmatively that the sign was erected under legal authority. Cook v. Hunter, 52 Oh Ap 354, 3 N. E. (2d) 680. The evidence with respect to the existence of the sign was admissible in determining whether plaintiff in driving on Mound Street was in the exercise of ordinary care. In Cook v. Hunter, supra, the court, on pages 357 and 358, said:

“It has always been permissible to show all the conditions, facts and circumstances surrounding the location of a collision of this Character, in determining whether the respective parties, in view of these conditions, facts and circumstances, acted as ordinarily prudent persons would act under like conditions, facts and circumstances, and were therefore guilty of negligence or contributory negligence, directly and proximately producing the collision and injury, although a criminal conviction could not be based upon a failure to observe a stop sign or traffic light not erected and maintained by authority of law. The warning effect of the traffic signal erected at the intersection of the roads where the collision occurred which gives rise to the instant action, was in no way lessened or increased by the obtaining or failing to obtain the consent and approval of the highway director to erect and maintain the same.”

The plaintiff was driving on a “through highway” and, if proceeding in a lawful manner, had the “right of way.” Sec. 4511.43 R. C. “Right of way means the right to proceed uninterruptedly in a lawful manner,” etc. Sec. 4511.01 (RR), R. C. Much of the evidence presented was on the issue as to whether plaintiff was proceeding in a lawful manner. The failure of plaintiff to look to the south as he approached the intersection; his failure to see defendant’s automobile until the instant of the impact; the failure to apply the brakes either before or after the collision; the speed at which he was driving; the condition of the street; the distance his automobile traveled after the collision, were all facts and circumstances admitted to determine whether plaintiff was negligent.

The charges, general and special, must be examined as they apply to the facts developed. This accident occurred after 11:00 o’clock at night, the streets were a little wet, but there is no showing that either automobile was deflected in its movement by reason of this condition of the street; there was no traffic other than the two automobiles. The plaintiff testified that he was traveling at a rate of speed of 20 to 25 miles per hour. This is not disputed except by possible inference from other facts appearing. The defendant testified that he had proceeded into Mound Street but three feet when the collision occurred. Plaintiff did not apply his brakes before or after the collision, but notwithstanding, came to a stop at a distance of 75 to 100 feet from the place of impact. It is undisputed that he suffered a broken right kneecap which could have accounted for his failure to apply the brakes after the collision. Of course, such action on his part would have had no effect to prevent the collision. There is no evidence whatever, direct, or inferential, that the plaintiff did not maintain a lookout ahead of him in the street in which he was moving. A presumption must be therefore indulged that he did so act.

Upon the subject of the failure of plaintiff to observe a lookout the following is the only testimony. Cross-examination of plaintiff:

“Q. All right, now, I will ask you whether or not at any time as you approached this intersection, did you look to the south on Wayne Avenue?

“A. I couldn’t look to the south on Wayne, Sir, because the accident happened at the corner at the intersection; otherwise, he was going straight through, he wasn’t taking the curb.

“Q. I ask you, Mr. McDonald, if you, as you approached the intersection of Wayne Avenue, did you look to the south?

“A. Sir, I couldn’t look at the south, because the accident happened.

“Q. Just a minute, please, I am asking you whether or not you did look to the south?

“THE COURT. Answer that yes or no.

“THE WITNESS. No.”

The Court at the request of defendant gave the following special charge before argument:

“I charge you, members of the jury, that in determining whether or not the plaintiff, William R. McDonald, was operating his automobile at a legal and lawful rate of speed as that term will hereafter be defined to you, you may consider, in addition to the estimates of speed as given by witnesses, the evidence of the amount of physical damage inflicted to the automobiles involved in the collision, and the nature of the damage, the distance both automobiles traveled after the collision, the fact that traffic approaching the intersection was or was not obscured from view, whether or not the plaintiff maintained a proper lookout, the condition of the weather, and of the roadway, at the time of the accident, the presence of or lack of curves at or near the intersection where the accident occurred, and any other conditions then and there existing.”

In the general charge the Court, after correctly charging that plaintiff had the right of way if he was operating his automobile in a lawful manner and the terms and provisions of the speed statute controlling, then said:

“But it is for the jury to determine in this case whether the plaintiff was operating at a lawful speed; also was he operating in a manner that an ordinarily prudent person would operate under the same or similar circumstances.”

It will be noted that the Court did not enjoin upon the jury the necessity that it first determine that plaintiff was operating his automobile at an unlawful rate of speed when the collision occurred before he lost his preferential right of way. The jury could well have interpreted the charge to mean that it was required to pass upon both propositions, namely, the lawfulness of the speed of plantiff’s automobile and whether or not he was exercising due care under all the circumstances as it reflected upon the issue of the violation of the speed statute. Then, without making any differentiation, the Court continued:

“It is the duty of every driver to observe ordinary care in the operation of his automobile with respect to keeping a lookout, a proper lookout; and what is a proper lookout? A proper lookout is such a lookout as an ordinarily prudent person would, exercise under the same or similar circumstances. If this plaintiff was operating his automobile in a lawful manner, then any interference by the defendant with that operation was negligence.”

The foregoing sets forth substantially what the Court said to the jury as defining the obligation of the plaintiff at the time of the collision.

In the judgment of the majority, the jury applying only the test of ordinary care to the conduct of the plaintiff could have found that his failure to look to the south into Wayne Avenue as he approached the intersection was, in connection with the other facts appearing, unlawful conduct on his part and some proof of excessive speed which would prevent his recovery. This .in our judgment is the fault which our Supreme Court undertook to correct in its pronouncement in Morris v. Bloomgren, 127 Oh St 147, in which it expressly overruled,

(Second paragraph of the syllabus):

“The expressions and implications contained' in the cases of Heidle v. Baldwin, 118 Oh St 375, and Geo. Ast Candy Co. v. Kling, 121 Oh St 362, by denying the vehicle approaching from the right its statutory privilege of proceeding uninterruptedly if it proceeds in a lawful manner, and by placing the drivers of both vehicles upon an equal plane in approaching an intersection and relegating both to the rules of care existing at common law, * *

It is well known by the bar and the courts that Judge Jones, who wrote the opinion in Morris v. Bloomgren, had theretofore, unsuccessfully, maintained his contention as to the law, in dissents to the majority opinions in Heidle v. Baldwin, supra, and Geo. Ast Candy Co. v. Kling, supra. In Candy Co. v. Kling, Judge Jones said:

“Under these two cognate statutes (§§6310-28 and 6310-28-A GC) the defendant’s *' * * truck, if proceeding in a lawful manner, had the unrestricted right of way upon the main highway as against a vehicle approaching from its left. The vice contained in the syllabus lies in the statement that although the right of way was yielded to the driver of the * * * truck, by the statute, he was nevertheless bound to exercise the common-law duty of ordinary care. The application of that rule to the instant case relegates the driver of the * * * truck to the same duties as would arise if no statute existed; it deprives him of the advantage of the statute giving him the uninterrupted right of way; it-permits the plaintiff to violate the law with impunity, and places both drivers on an equal plane by requiring ordinary care where their paths converge; it emasculates the statute, and requires the defendant, in such a situation, to exercise ordinary care under the rules of the common law, although he may be driving on the main highway in a lawful manner.”

The speed statute, §4511.21 R. C., in our opinion, contemplates that an excessive rate of speed may not be shown by proof of the failure to exercise the common-law obligation of maintaining a lookout into a-street from which the nonpreferred driver of an automobile is moving. The statute provides that due regard shall be given to the “traffic, surface, and width of the street or highway and any other conditions.” The “any other conditions” means physical conditions in or connected with the highway.

Appellee relies in part on Esterly v. Arc Engraving Co., 59 Oh Ap 207, and Estridge v. The Cincinnati Street Railway Co., 44 Abs 33, in both of which cases the writer of the opinions said that a proper lookout under the circumstances had some reference to speed. As we read these opinions these statements were not necessary to the judgment of these Appellate Courts.

In the Estridge case reliance is put in the cited cases of Neumann v. Apter (Conn.), 21 A. L. R. 988; Webber v. Park Auto Transportation Co. (Wash.), 47 A. L. R. 614, and 5 Am. Jur. 667, for the statement that ordinary care is the minimum requirement in most, if not all, situations. All of these citations were from cases and states where the interpretation of their speed statutes was in accord with that of Heidle v. Baldwin, supra, and Candy Co. v. Kling, supra, and were decided before Morris v. Bloomgren.

Morris v. Bloomgren, 89 A. L. R. 838, is annotated and it is there pointed out:

“Although rights of way have been given by statutes and ordinances to certain travelers, as, for example, to those approaching an intersection from the right, these have been construed to give only a relative right, dependent upon the particular circumstances, such as speed, and the distance of the vehicles from the intersection. This has worked out unsatisfactorily in its practical application. The elements of speculation as to speed, distance, etc., have rendered the traveler’s insecurity almost, if not quite, as great as if no regulations existed. What is required is some further assurance that a right of way does in fact exist and will be respected. Apparently no case prior to the reported case (Morris v. Bloomgren [Ohio] ante, 831) has adopted a construction of these regulations making the right of way an absolute one.”

But continuing, it is said:

“That the ‘absolute’ right of way upon the driver of the vehicle approaching from the right, is qualified by the requirement that, in proceeding uninterruptedly, he must proceed in a lawful manner, as to speed, distance,” etc.

There is a continuation of the annotation to Morris v. Bloomgren, 89 A. L. R. 839, in 137 A. L. R. 1497, which notes that the weight of authority is that the right of way is only relative and is against the construction in Morris v. Bloomgren which this Court is bound to follow.

The applicable principle of law as to the obligation of a driver of an automobile who has the right of way to maintain a lookout under the speed statute and the right of way statute is found in the fifth paragraph of the syllabus of Morris v. Bloomgren which says:

“The driver of a vehicle lawfully approaching from the right has the right to assume that the driver of the vehicle approaching from the left will obey the law by yielding the right of way. If, however, the former, just as he is approaching or entering the intersection, discovers that the latter is not yielding the right of way and has thereby placed himself in a perilous situation, it becomes the duty of the former to use ordinary care not to injure the latter after becoming aware of his perilous situation.”

In Ohio Casualty Ins. Co. v. Bartson, 69 Oh Ap 557, we find the facts parallel to the case at bar in that the driver approaching the intersection from the right testified that he never looked to his left prior to the collision. The Court held that he still had the right of way, reversed the judgment in favor of the driver on the left and rendered final judgment in favor of the preferred driver. The first paragraph of the syllabus of this case holds:

“A driver of an automobile approaching an intersection of two non-preferential streets within a municipality from the right of another automobile has the right to proceed uninterruptedly in a lawful manner in the direction in which he is going until he becomes aware of danger in so doing.” (Emphasis ours.)

The record in our case discloses that the plaintiff never became aware of the danger to the defendant until just an instant before the collision.

The charges as given were erroneous and prejudicial to the plaintiff because they did not properly define the obligation and rights of the plaintiff, as the preferred driver, as he approached the intersection, but required of him that he exercise ordinary care. There was no separation or proper distinction made in the chage between the conduct of the plaintiff which would constitute an unlawful act on his part and that required by the exercise only of ordinary care. The charge permitted the jury to find that the failure of plaintiff to look to the south as he approached the intersection was evidence of the rate of speed at which he was moving at the time of the collision. If it had any possible probative effect it related to the reasonableness of the rate of speed once it was determined.

Whether or not the 5th paragraph of the syllabus of Morris v. Bloomgren controls the obligation of plaintiff to look to his south at the intersection, we are committed to the proposition that such failure does not relate to speed, viz.; how fast his automobile was moving.

The charge may have caused and probably did cause the jury to conclude that plaintiff’s failure to look to the south or into Wayne Avenue was a violation of the speed statute which supported its verdict against him. If the law is as we construe it, we would, if we had the power, hold that the verdict and judgment are against the manifest weight of the evidence.

The judgment will be reyersed and the cause remanded for a new trial.

HORNBECK, J, concurs.

WISEMAN, J,

dissenting.

The plaintiff was driving on a “through highway” and, if proceeding in a lawful manner, had the “right of way.” “Right of way means the right to proceed uninterruptedly in a lawful manner,” etc. Sec. 4511.01 (RR) R. C. Much of the evidence presented was on the issue as to whether plaintiff was proceeding in a lawful manner. This was the principal factual issue in the case. If the plaintiff was not proceeding in a lawful manner, he lost the “right of way.” The driver of a vehicle may lose the “right of way” by driving at a rate of speed greater than is reasonable or proper. Whether the plaintiff was driving at a rate of speed greater than was reasonable and proper, under all of the circumstances, was the subject of the special instruction which the appellant claims is prejudicially erroneous. It is claimed that the court erred in including in the special instruction the words: “Whether the plaintiff maintained a proper lookout.” While it is true the rate of speed at which plaintiff was driving, according to his testimony, was prima facie lawful, still whether or not the rate of speed was reasonable and proper under all the circumstances was a question of fact to be determined by the jury. Sec. 4511.21 R. C. in part provides:

“No person shall operate a motor vehicle, * * - in and upon the streets and highways at a speed greater * * * than is reasonable and proper, having due regard to the traffic, surface, and width of the street or highway, and any other conditions,” etc.

Appellant contends that the failure to keep a proper lookout is not related to the question of speed under the facts' in this case; that plaintiff was not required to look south into Wayne Avenue for traffic approaching from that direction, inasmuch as plaintiff was driving on a through highway. The court did not charge that plaintiff was required to look into the intersecting street for oncoming traffic. The charge as given would require the plaintiff to keep a proper lookout only for vehicles entering the intersection from Wayne Avenue. Whether the plaintiff was keeping a proper lookout was a condition, a fact or circumstance to be considered by the jury in determining the reasonableness of the speed. Certainly, the plaintiff was not permitted to close his eyes simply because he was traveling on a through highway. In our opinion there is a definite relationship between the rate of speed and whether the driver kept a proper lookout, in determining the reasonableness of the speed.

The majority opinion states: “There is no evidence whatever, direct or inferential, that the plaintiff did not maintain a lookout ahead of him in the street in which he was moving. A presumption must be, therefore, indulged that he did so act.” The failure of plaintiff to see defendant’s automobile until the instant of the impact; the failure to apply the brakes, either before or after the collision; the speed at which he was driving; the distance his automobile traveled after the collision, were all facts and circumstances to be considered by the jury in determining whether plaintiff was keeping a proper lookout. There was evidence from which the jury could reasonably draw the inference that plaintiff was not keeping a proper lookout for other vehicles on the street. Morrin v. Bund, 87 Oh Ap 357, 95 N. E. (2d) 262.

Furthermore, we are of the opinion that the fifth paragraph of the syllabus of Morris v. Bloomgren does not relieve the driver on a “through highway” of the duty at all times to drive in a lawful manner. In my opinion, the driver on a “through highway” must at all times exercise ordinary care, and keep a proper lookout for other vehicles. In the exercise of such ordinary care such driver has a right to assume that the driver approaching from an intersecting, nonpreferential highway, will yield the right of way, but this assumption and this right does not clothe the driver on the “through highway” with the right to drive unlawfully. Such driver’s duty to exercise ordinary care does not first arise when he discovers that the other driver is not yielding the right of way and has placed himself in a perilous situation.

In my opinion the special instructions and the general charge were not prejudicially erroneous.


author: By THE COURT:

text:
    SUMLIN, Plaintiff-Appellee, v. HARRIS, Defendant-Appellant.
    Ohio Appeals, Second District, Montgomery County.
    No. 2274.
    Decided March 29, 1954.
    Don E. Sproul, Dayton, for plaintiff-appellee.
    Altick & McDaniel, Francis S. McDaniel, of Counsel, Dayton, for defendant-appellant.
   OPINION

By THE COURT:

This is an appeal on questions of law from the Municipal Court of the City of Dayton.

This is an action for damages growing out of an automobile collision. The matter was tried to the court without the intervention of a jury. Upon motion duly made the court rendered separate findings of fact and conclusions of law. Judgment was entered for plaintiff for $227.50.

Defendant-appellant contends that the service of summons was defective; that the court failed to find the defendant to be negligent as charged; that the court failed to find that plaintiff had been damaged in any sum whatsoever; that the judgment is contrary to law. The service appears to be regular, and in compliance with law, Paduchik v. Mikoff, 158 Oh St 533. The court found “that defendant, while in the intersection, never slackened her speed or attempted to divert the course of her vehicle and collided into plaintiff’s auto while it was stopped.” This finding supports the charge that the defendant failed to maintain a proper lookout ahead. As a conclusion of law the court found that in so doing the defendant failed to exercise ordinary care and that such negligence was the sole and proximate cause of the collision. In our opinion a separate finding supported the judgment on this issue.

The defendant-appellant contends that the judgment was contrary to law in that the court failed to find that the plaintiff suffered damage. An examination of the record will disclose that the trial court failed to find in the separate findings of fact that the plaintiff was damaged in any amount. However, our attention is called to the judgment entry in which appears a finding as follows: “The court finds from the evidence in favor of the plaintiff and assesses damages in the sum of $227.50.” In the same entry the court rendered judgment for said amount In this case the judge was the trier of the facts. The conclusion of law which is vital in this case is the legal conclusion incorporated in the judgment entry. Bauer v. Cleveland Railway Company, 141 Oh St 197, 202, 203. In our opinion the findings of fact in the judgment entry supplements the separate findings of fact and furnishes sufficient grounds on which to base the judgment for the plaintiff.

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

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


author: Per CURIAM:

text:
    MONROE, Treas., Plaintiff-Appellee, v. DURKIN et, Defendants-Appellants.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23081.
    Decided April 14, 1954.
    Frank T. Cullitan, Pros. Atty., Julius J. Badzik, Asst. Pros. Atty., Cleveland, for plaintiff-appellee.

      Lanza, Bernard Si Hodous, Davies, Eshner, Johnson & Miller, Cleveland, for defendants-appellants.
   OPINION

Per CURIAM:

This appeal comes ,to this court on questions of law and fact from a judgment entered for the cross-petitioners by the common pleas court of Cuyahoga County. The action is one filed by the Treasurer of Cuyahoga County, seeking to establish a tax lien on the property of the substituted defendants, Edward R. Durkin and Mary Durkin, in a foreclosure action.

The defendants, by cross-petition, seek to enjoin the collection of the taxes and assessments which are the subject of this action for the reason that the property against which such taxes and assessments are assessed has been torrenized under the laws of Ohio, it being alleged that at least a part of such taxes are special assessments and that the resolution of the taxing subdivision assessing such special assessments has not been memorialized pursuant to §8572-56 GC (repealed effective 8/18/37).

Upon due consideration of the stipulation of facts and the admissions contained in the pleadings, we find that the special assessments which were in part the basis for the reassessing ordinance are separable between those which were petitioned for and/or memorialized and those that were not. For that reason the taxes and assessments which either were memorialized (lighting) and/or such as accrued as a result of improvements petitioned for by predecessors in title of defendants, the injunctive relief prayed for by the substituted defendants, Edward R. and Mary Durkin, and The National City Bank of Cleveland, in their cross-petition, is denied and a decree is entered for plaintiff as prayed for.

See: Shaker Land Co. v. City of Cleveland, 139 Oh St 536.

Laurel Hill-Corlett Land Co. v. Collister Tr. etc., 43 Oh Ap 229.

(Gunderson v. City of South Euclid, 157 Oh St 437, not applicable.)

Injunction is allowed as prayed for by the defendants, Edward R. and Mary Durkin, and The National City Bank of Cleveland on their cross-petition, as to such special assessments as were not memorialized in pursuance of §8572-56 GC, or such as have not accrued as result of petition by predecessors in title.

For the foregoing reasons a decree will be entered for plaintiff and the defendants, in accordance with this opinion. Exceptions noted. Order see journal.

HURD, PJ, KOVACHY, J, SKEEL, J, concur.


author: By MILLER, J.

text:
    SCHINDLER, Plaintiff-Appellant, v. LIEBERMAN, Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 4792.
    Decided October 8, 1952.
    Russ Bothwell, Al. J. Frericks, Columbus, for plaintiff-appellant.
    Harold Lieberman, Columbus, for himself.
   OPINION

By MILLER, J.

This is a law appeal from the judgment of the Common Pleas Court sustaining the defendant-appellee’s motion for a new trial. The action was one for damages for false arrest. Upon trial being had a verdict was rendered in favor of the plaintiff for $500.00. The entry sustaining the motion recites that it is sustained for the reasons set forth in the Court’s decision filed on April 15, 1952, which we quote in full:

“RANDALL, J.

“The motion of defendant for a new trial is based upon several alleged grounds, the first six of which, in our opinion, are not well taken. The seventh ground assigned is ‘other errors apparent upon the face of the record.’ Under this.last assigned ground defendant in oral argument referred to certain inquiries made .of him by way of cross examination during the trial. We set forth in full the portion of the cross examination complained of as follows:

“ ‘Q. Have you ever been suspended?

“ ‘MR. LIEBERMAN: I object.

“‘Q. (Continuing) from the practice of law?

“‘MR. LIEBERMAN: I object to that question.

“‘THE COURT: Sustained.’

“Also the following:

“ ‘Q. You are under indictment of our present Grand Jury right at this time on a felony charge?

“ ‘A. No.

“ ‘Q. Haven’t you been indicted yourself right in this very court in the last two or three years?

“‘MR. LIEBERMAN: I am going to object.

“‘THE COURT: I will sustain the objection and the Jury will disregard the implication.

“ ‘MR. LIEBERMAN: At this time, Your Honor, I wish the Court would reprimand the attorney for making that kind of statement.

“ ‘THE COURT: It is wholly uncalled for and improper to show a mere charge against anybody and the Jury will disregard it and counsel will refrain from making any statement of that kind again.’

“While we sustained the objections of defendant to the above inquiries, the question arises whether the action of the Court in merely sustaining objections to the first inquiry relating to the alleged suspension of defendant from the practice of law and the admonition of the Court to disregard the subsequent inquiry relative to the alleged indictment of defendant were sufficient to remove from the minds of the jury the implications arising from these highly prejudicial questions. It must be remembered that the jury knew that the defendant was a member of the Bar and that they would consequently hold him to a high standard of rectitude. The first question relative to defendant’s suspension conveyed to the jury the hint that the defendant at one time at least had been sufficiently derelict in his profession to be barred from the practice. The jury would naturally assume that counsel for plaintiff would not have propounded the question unless he would have some basis in fact for so doing.

“The second inquiry, however, is even more serious than the first. It is elementary knowledge of all lawyers that a mere naked charge or indictment is no basis for impeaching the credibility of a witness. Counsel for plaintiff must have known this. As a matter of fact, although this is not a part of the record, we presided in the case in which the defendant was tried on the only indictment returned against him to our knowledge in this county. That indictment was for a misdemeanor and not for a felony as suggested in the question propounded to the witness. The facts are that there was no indictment pending against defendant in this court at the time of the trial of the instant case, and what is more important, the defendant was acquitted by a jury on the indictment which had been returned at a previous term. All of these facts could have been ascertained by plaintiff if he had consulted the records of that case before making the inquiries. In our opinion, the inquiries above referred to might well prejudicially have affected the verdict and probably did so influence it, despite our attempt by admonition to eradicate it from the minds of the jury.

“The motion of defendant will be sustained and a new trial ordered.

“Exceptions.”

The appellant has assigned five'errors, three of which relate to prejudicial error in the record, and two, to an abuse of discretion exercised by the trial court. Only the latter may be considered on this appeal, for the sustaining of a motion for a new trial is not a final order when erroneously made. It becomes final only when the Court abuses its discretion in making the order. Green v. Acacia Mutual Life Insurance Co., 156 Oh St 1. Now what is meant by an abuse of discretion in this connection? That question has been answered in the case of Steiner v. Custer, 137 Oh St 448, the second paragraph of the syllabus of which is as follows:

“2. The meaning of the term ‘abuse of discretion’ in relation to the granting of a motion for a new trial connotes more than an error of law or of judgment; it implies an unreasonable, arbitrary or unconscionable attitude on the part of the court.”

Our examination of the reasons given by the court for the sustaining of the motion disclose that his actions were neither unreasonable, arbitrary nor unconscionable. He sets forth fully the particular facts presented which he thinks might have prejudiced the minds of the jury, all of which appear to us to be sound and logical. If in so doing he gave consideration to some matters foreign to the record, as urged by the appellant, this may be erroneous, but it could not be said to be unconscionable.

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

HORNBECK, PJ, WISEMAN, J, concur.


author: By FORD, J.

text:
    KINGDOM et, Plaintiffs, v. RECORD et, Defendants.
    Probate Court, Ashtabula County.
    No. 34005.
    Decided August 2, 1954.

      Stephen F. Perry, Jefferson, for plaintiffs-appellees.
    Mooney, Hahn, Loeser, Keough & Freedheim, Cleveland, Blakely & Blakely, Painesville, William N. Shane, Ashtabula, Baker, Hostetler & Patterson, Cleveland, for defendants-appellants.
    Pontius & Barsky, Ashtabula, for defendant-appellee the State of Ohio.
    FORD, J (Common Pleas Court, Mahoning County), sitting by designation.
   OPINION

By FORD, J.

This is an action brought for a declaratory judgment by the trustees under Item X of the will of George J. Record, of Conneaut, Ohio. The most important question at issue is whether a valid charitable trust is created by that item in which the testator gave, devised and bequeathed the residue of his estate after the death of his widow to a trustee “for the purpose of establishing a polytechnic industrial school as hereinafter provided.” The trustee was required first to offer the residue to the City of Conneaut to be used in the establishment of the school subject to certain conditions, including an acceptance of the offer within one year. If the offer was not accepted, the same offer was to be made to the Village of Geneva. If neither municipality accepted it or if there were legal obstacles preventing such acceptance, it was provided that the trustee “may by forming a corporation or by other lawful means in its discretion to be determined by it, complete the organization of said polytechnic industrial school or if .it elects so to do it may transfer and deliver over the remainder of said residue to some industrial school then well established to be selected for the purpose of carrying out the principles and objects heretofore named. If the remainder be given to an industrial school already established it shall be known as ‘Record Memorial Industrial Fund’ and the department to which it is applied shall be known as the ‘Record Memorial Industrial Department’ and shall be operated upon the basis and the fundamental ideas and to the ultimate end and purpose hereinbefore expressed.”

Conneaut did not accept. . Geneva did accept but could not comply with other conditions within a reasonable time, as determined by the Supreme Court in Findlay v. Conneaut, 145 Oh St 480, 31 O. O. 161 (1945). The successor trustees under the will have neither themselves organized a school nor have delivered the residue to an existing industrial school.

It is the contention of the defendants, who are next of kin, that the gift-over provision to an established school amounts to a direction to select a beneficiary to receive both the legal and equitable title to the residue; that the trustees may apply the trus res to a noncharitable purpose by turning it over to an industrial school operated for profit; that a charitable trust is one where the trustee is bound to devote the trust res exclusively to charitable purposes, according to the so-called exclusivity doctrine originated in the English case of Morice v. Bishop of Durham, 9 Ves. 399 (1804); and that consequently the trust is invalid as a charitable trust and as a private trust it violates the rule against perpetuities.

The plaintiff trustees, on the other hand, contend that the chosen school would take not as beneficiary but as successor trustee of the charitable trust; that the beneficiaries as a class remain as they were when the trust vested on the death of the testator and that the trust is a valid charitable trust.

A determination of this issue depends on an ascertainment of the testator’s intention from the words he used in his will, and such an ascertainment is a problem of will construction. While the court may not do violence to the testator’s language, liberal rules of construction must be applied since we are dealing with an obvious attempt by the testator to create a charitable trust. In the Findlay case, supra, the court did not have before it the questions at issue here, but did construe Item X of the will as bearing upon one of the issues involved in that case.

In the syllabi and opinion the court reaffirmed certain basic principles of will construction which are applicable here and which seem to be conceded by all the parties to this case. They are: (1) In an action to construe a will the sole function of the court is to ascertain and give effect to the intention of the testator. Such intention must be ascertained from the words used in the will by giving to such words their usual and ordinary meaning. (2) It is not the function or the province of a court to make a new and different will for a testator under the guise of construing the will made by him. (3) Where charitable trusts have been involved, the Supreme Court for the better part of a century has applied liberal rules of construction.

What are those liberal rules? They are summarized in a statement found in 7 O. Jur., 180(f), as follows:

“Ohio is thus committed to the universal doctrine that charitable trusts should be construed to carry out the intention of the testator. * * * Charitable trusts are to be construed so as to give them effect, if possible, and to carry out the general intention of the donor, when clearly manifested, even if the form and manner pointed out by him cannot be followed. If two modes of construction are fairly open, one of which would turn the gift into an illegal trust, while by following the other it would be valid and operative, the latter mode must be preferred. Such trusts, in other words, should receive such a construction as will tend to preserve them rather than to destroy them.”

The testator in Item X of the will, following a statement of his beliefs regarding the purpose and nature of educating the young, gave his residuary estate remaining after the death of his widow to a named trustee “for the purpose of establishing a polytechnic industrial school as hereinafter provided.” A polytechnic industrial school can be simply defined as one providing education in many practical arts for later participation by the students in industrial life. The school so established, however, was to be something more. It was also to be a sectarian school. The Supreme Court so held in the Findlay case in construing the will as required by an issue in that case.

The school the testator had in mind, as indicated by the language in Item X, was to give instruction in the useful arts and in the Bible; detailed provision was made for observance of the Sabbath Day by Sunday School and preaching sex-vices as well as for scripture reading and prayer at all classes. These things were to be made rules of the school, to the faithful observaxxce of which the students must pledge themselves as a condition of admission to the school.

All of these things, including the beliefs of the testator in the purpose and nature of education, were made to apply to the “well established school” which was “to be selected for the purposes and objects hereinafter named”; and the fund was to be applied to a department which “shall be operated upon the basis and fundamental ideas and to the ultimate end and purpose hereinbefore expressed.”

Defendants contend and cite authority for the proposition that where a gift is made to a corporation which is charged under the will to use it for certain purposes for the accomplishment of which the corporation was formed, the gift is construed as absolute and not in trust. Such a situation is not presented here. The gift was not merely one to an industrial school for industrial purposes; it was a gift for the purpose of establishing a sectarian industrial school as a separate department not only to teach the useful arts but to teach them in a religious way with detailed rules as to Bible teaching and Bible reading and prayers at all classes and of Sunday observance, all of which were binding on the officers, teachers and pupils of the school. I doubt whether any school, charitable or proprietary, at least in the contemplation of the testator, had ever before been organized for such a purpose.

I cannot agree with the statement in defendants’ brief that the will indicates that testator was not concerned with the continuing operation of his proposed school. On the contrary, he made definite provision as to how it should be operated and when he said that the well-established industrial school should be chosen to carry out the principles and objects set forth in his will and that the department to which the fund should be applied be operated upon the basis and fundamental ideas and to the ultimate end and purpose he expressed, he did not intend merely to give the fund to an industrial school simply because it was an industrial school, but he did intend that the school should be charge as a fiduciary with seeing to it that his plans and purposes were accomplished.

Even supposing that the school might be either charitable or proprietary, it was merely to be selected as an alternative to the trustee under the will, which might either itself as trustee complete the organization of the proposed school or choose a well-established industrial school to do the same thing, also as trustee. I do not believe that the testator intended his gift to go to an existing proprietary school otherwise than as trustee. Item X reveals an attitude of mind to which the thought of contributing to the private profit of stockholders or proprietors by its bounty would be repugnant.

The interpretation I have given to Item X of the will is, I believe, a fair construction based on the language that the testator used; it is amply justified by the rules of liberal construction applicable to charitable trusts; it does no violence to any language used by the testator’s will; and it is far from “the almost extravagant liberality” with which Judge Ranney said that charitable trusts have customarily been construed. See Landis v. Wooden. 1 Oh St 160, 4.

It is, therefore, my conclusion that a valid charitable trust for education was created by Item X of the Record will.

A further question is raised, particularly in the brief of the prosecuting attorney; i. e., that even though an otherwise charitable trust was created by Item X, the rule against perpetuities renders it void because of the remoteness of the vesting of the beneficial use. Briefly, the argument is that the gift under any alternative in Item X was not one for the education of students as beneficiaries but to a school itself as the beneficiary which school might not come into existence within the twenty-one-year period of the rule. But the school building or the school corporation as a separate entity was not the real beneficiary. This is a charitable trust for educating the young as a class, indefinite, of course, as is usual with charitable trusts, among whom the trustee may select individuals. The building and the school corporation are merely means to an end. The beneficial interest in the class vested on the death of the testator. See Bogart “Trusts and Trustees,” Sec. 344. The rule against perpetuities is not violated by this trust.

In view of the foregoing conclusions there is no occasion to consider other issues argued in briefs. Furthermore, no attempt has been made to discuss the many authorities which have been cited on the issues which I have-decided. I have merely confined myself, in view of the great probability of review, to a brief statement of the reasons for my decision as to the validity of the charitable trust involved, for the information of counsel and any reviewing court.

I should like to add that all of the briefs in this case have been of great assistance to me. I cannot recall having had better briefs before me while I have held judicial office.

A journal entry may be drawn in accordance with this memorandum.


author: By HUNSICKER, J.

text:
    CARLTON et, Appellees, v. RIDDELL, Appellant.
    Ohio Appeals, Ninth District, Medina County.
    No. 261.
    Decided June 8, 1955.
    H. Dennis Dannley, Pros. Atty, Wm. G. Batchelder, Jr., Medina, for appellee.
    Beach & Warner, for appellant.
   OPINION

By HUNSICKER, J.

■ This is an appeal on questions of law from a judgment of the Court of Common Pleas of Medina County, Ohio, wherein that court, on the petition of the plaintiffs as Trustees of Brunswick Township, Medina County, Ohio, “perpetually enjoined and restrained” the defendant “from the maintenance and operation,” upon her premises, “of the trailer park * * * or of any trailer park,” and wherein she was “ordered to abate the fixtures, buildings and other facilities installed for the purpose of creating and maintaining such trailer park * *

In November, 1950, Brunswick Township, by a vote of its electors, adopted a zoning resolution, by the terms of which (Section 5, subsections 1 to 12, inc.) certain “uses shall be deemed to constitute a nuisance and shall not be permitted in any ‘R’ or ‘B’ district.” Subsection 11 of Section 5 of this zoning resolution lists “trailer parks” as one of the prohibited uses.

Two districts are established by this zoning resolution, “R” residential, and “B” business and commercial. Land in any district may be used for agricultural purposes. Provision is made for: minimum lot area per family; minimum lot width; set-back building lines; side yards; parking facilities; and other related matters usually found in such resolutions.

Mrs. Riddell, the appellant, is the owner of land in the township located in zone “B” which abuts upon Route 42, a public highway. She is operating a trailer park upon her land, which began operation in a “B” or business district after the enactment of the zoning resolution.

Prior to the commencement of this trailer park, she applied, pursuant to the zoning resolution, for a permit to construct and operate the trailer park. The zoning application is in evidence, and at the bottom of this application is a statement, signed by the zoning inspector, which, in the judgment of this court, indicates that such application to operate a trailer park was refused.

Although the parties sought to introduce evidence on extraneous matters, there is really but one question for this court to determine, and that question is: Have the citizen electors of Brunswick Township the power, under the zoning statute, to prohibit the operation of a trailer park wthin the territorial limits of such township?

Counsel for Mrs. Riddell, the appellant in this case, say: “The concept of zoning is comprehensive to afford a place within the zoned area for every lawful use and business, not to confine to only one or a very few uses and to exclude all others.”

Evidence relative to congestion of population, school enrollment, water supply, sewage disposal, and kindred matters, was not presented, since, by stipulation of counsel, the sole contention of the appellant was confined to the proposition that the zoning resolution is invalid for the reason that a trailer park is not a nuisance per se and hence cannot be prohibited within the territorial limits of this township.

It should be noted here that the right to file this action by the township trustees to enjoin and abate a prohibited use (the trailer camp) is expressly provided for by §519.24 R. C., and the power granted a township to adopt a zoning resolution is to be found in §519.02 R. C., et seq. By these later statutes, the township trustees are given the authority to “regulate by resolution” concerning zoning matters.. (Emphasis ours.)

The synonyms for the word “regulate,” as found in Webster’s New International Dictionary, Second Edition, are: “adjust, dispose, methodize, arrange, direct, order, rule, govern, control.”

This court has this day decided the case of Jared Davis, et al., Trustees of Bath Township, v. George McPherson, No. 4512, Summit County, 72 Abs 232. In that case, a zoning resolution, enacted by the electors of Bath Township, Summit County, Ohio, made no provision for trailer parks within the territoral limits of Bath Township. This court, in passing upon a complaint that, by reason of a failure to provide for trailer camps, such zoning resolution was unconstitutional and hence was void, said:

“The wisdom of the adoption of a zoning resolution, which not only prohibits trailer parks, within the township, but which likewise fails to provide any district where they may be constructed or operated, was a question to be decided by the electors of Bath Township. By adopting the resolution in question, they decided against the construction and operation of trailer parks within said township.”

We see no practical difference between a zoning resolution which makes no provision for a use zone for trailer parks, and one, as in the instant case, which prohibits trailer parks in all use zones. In either case, such business use within the territorial limits of the respective township cannot be lawfully conducted.

We find it difficult to understand how any comprehensive zoning plan can be adopted by a township if in every such plan provision must be made for all types and kinds of businesses, and if the zoning resolution is void if any specific business is prohibited.

The Brunswick Township zoning resolution is comprehensive, for it provides for agriculture in all zones (which is usually the predominant use of township lands), business and commercial uses (to provide food, drug and department stores, and other such uses), and residences.

The question as to the reasonable relationship of this trailer park prohibition to the health, morals, safety and welfare of the community is, by agreement of counsel, not involved herein. The issue is narrowly limited, as herein above set out, to the right to exclude from a zoning resolution a legal business enterprise.

We believe that our question herein is answered by the case of Smith, et al., v. Juillerat, et al., 161 Oh St 424, wherein the court said, concerning a township zoning resolution:

“2. The purpose of a zoning ordinance is to limit the use of land in the interest of the public welfare.

“3. Where a zoning ordinance is general in its application, the classifications as to uses to which the property may be devoted are reasonable, and preexisting vested rights are recognized and protected, the ordinance is a valid exercise of the police power.”

See also: Stary, et al., v. City of Brooklyn, et al., 162 Oh St 120.

State, ex rel. Jack, v. Russell, Bldg. Commr, 162 Oh St 281.

We. therefore determine that the township trustees and electors of Brunswick Township had the power to adopt the zoning resolution prohibiting the establishment of a trailer park or camp wthin the territorial limits of such township, and that such prohibition is not violative of any constitutional provision.

The judgment of the Court of Common Pleas is affirmed.

STEVENS, PJ, DOYLE, J, concur.


author: By BAUMAN, J.

text:
    INTERNATIONAL ASSOCIATION OF MACHINISTS et al., Plaintiff, v. ELECTRIC VACUUM CLEANER DIVISION GENERAL ELECTRIC COMPANY, Defendant.
    Common Pleas Court, Cuyahoga County.
    No. 600859.
    Decided September 27, 1949.
    Howard M. Metzenbaum, Cleveland, for plaintiffs.
    Squire, Sanders & Dempsey, Cleveland, for defendant.
   OPINION

By BAUMAN, J.

The Plaintiff union and Defendant employer have negotiated and executed a presently efféctive contract. During the life of the contract, the employer seeks to “retire” its male employees who have attained the age of 65 years and its female employees at 60.

No claim of inefficiency is made nor are the disciplinary provisions of the contract invoked. The company asserts that it has a common law right to select its employees as it sees ñt, and that the contract does not limit its proposed action. It contends that therefore it is within the province of the company to extend to the particular plant covered by this contract the national retirement policy of the General Electric Company.

The Union takes the position that the contract must be construed to result in a determination that this retirement policy of the company violates its terms, an injunction is sought to protect its claimed contract rights. Under the pleadings and according to the established law, the jurisdiction of this court extends no farther than the interpretation and enforcement of this particular contract. It is our sole province to address our attention to this question. This court must and does fully appreciate that it is not a judicial, executive nor advisory federal agency.

Article X of the contract provides:

“1. An employee’s continuous service with the company shall be terminated;

“A. If an employee leaves voluntarily or is discharged.”

Other provisions of the agreement define the rights of the Company and the employee if he is discharged, and provide grievance machinery to which an appeal may be made. A discharge under the contract presupposes a good cause therefor. As stated earlier, no claim or cause is made. Nor did the affected employees leave voluntarily.

Instead, it is claimed that they are retired. Webster defines retire as follows:

“To withdraw from office, a public station, business or the like; as having made a large fortune, he retired.” and defines withdraw as:

“To disengage or remove oneself.”

Certainly in the popular sense, to retire implies at least part of the motive power creating the resultant situation originated in the person whose status is changed. Children are put to bed, adults retire.

In employee-employer relationships some consent by the employee either at the inception or at some time during the course of his employment. It may be participation in a pension plan. It could be by specific agreement. We do not have here a case of retirement. Instead, we have discharge because of age.

We construe this contract to prohibit the termination of continuous service except as specified. “Expressio unius est exclusio alterius.”

Certainly it was intended that employees could be discharged only when the employer was able to show good cause for that action.

The omission of a company requested clause from the final contract does not weaken this conclusion. The provisions of Article XVI fortify it.

These employees are entitled to the protection of this court. An injunction is granted.


author: By THE COURT.

text:
    JONES, Plaintiff-Appellant, v. JONES, Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 4826.
    Decided October 24, 1952.
    Schwartz & Gurevitz, Columbus, for plaintiff-appellant.
    J. F. Atwood, John M. Scott, Columbus, for defendant-appellee.
   OPINION

By THE COURT.

Submitted on motion of the defendant-appellee seeking an order dismissing the appeal for the reason that the same is not a final order. The notice of appeal is directed to the order entered on July 18, 1952, wherein the Court found,

“that the dower interest of Anna B. Jones in the undivided one-half interest of Percy D. Jones is Seven Thousand Seven Hundred Sixteen Dollars and Eighty-three cents ($7,716.83) and the Sheriff is hereby ordered to pay to Anna B. Jones, out of the one-half interest of Percy D. Jones, the sum of Seven Thousand Seven Hundred Sixteen Dollars and Eighty-three Cents ($7,716.83). To all of which plaintiff excepts.”

The appellee urges that this is merely a determination of the amount of dower to which the defendant was entitled and does not affect a substantial right; that the judgment entry decreeing the appellee was entitled to dower was filed on January 21, 1952, which is the final order from which an appeal should have been taken.

The motion will be overruled for the following reasons:

1. No assignment of errors has been filed; therefore we cannot at this time determine whether or not the claimed errors affect a substantial right; neither can we tell whether a bill of exceptions is necessary to exemplify the.errors complained of, none having been filed.

2. The order appealed from is the only one that determines the action. That of January 21, 1952, was merely a finding which left something further to be done at a future date. In Diemer v. The Putnam County Farmers Mutual Ins. Co., 81 Oh Ap 185, we find a parallel state of facts, the Court here holding that in an action brought on a fire insurance contract, for the loss of grain destroyed by fire, an order of the Court finding that plaintiff is entitled to recover but stating that the value of the loss is to be determined at a future time by the Court, is not a final order from which an appeal will lie. By virtue of this authority, the decree of January 21, 1952, was not an appealable order. See also Reliance Insurance Co. v. Pohlking, 27 Abs 248.

In Longworth v. Mullaly, 2 Hand 131, 12 O. Dee. Rep. 366, the Court said:

“A final order must, in effect, determine the action. If after an order the action still remains pending, awaiting some further order as to the rights of the parties, it cannot, of course, be considered a final order.”

The motion will therefore be overruled.

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


author: By BARTLETT, J.

text:
    TOULMIN, Jr., d. b. a. TOULMIN & TOULMIN, Plaintiff, v. COLUMBUS PRODUCTION MANUFACTURING COMPANY, a partnership, Defendant.
    Common Pleas Court, Franklin County.
    No. 190420.
    Decided September 24, 1954.
    Bricker, Marburger, Evatt & Barton, Columbus, for plaintiff.
    Schwartz & Gurevitz, Columbus, for defendant.
   OPINION

By BARTLETT, J.

A. Motion of defendant to strike from petition:

1. Sustained. Evidential.

2. Sustained as to the words “skill, time, materials, Exhibits,” but overruled as to the words “and expenses sustained on behalf of defendant by plaintiff pursuant to such employment * * *”

B. The application to separately state the apiPunt of expenses incurred is sustained, but overruled as to “skill, time expended, materials, exhibits;” since those words are ordered stricken from the petition.

The value of the services rendered by attorney for his client where there is no express contract fixing the amount, may be claimed in a lump sum, and it is not necessary to itemize the time spent, as this is evidential matter, since it must necessarily follow that time will be spent on the subject matter for which employed. On the other hand, expenses incurred should be itemized where incurred under the implied authority of the attorney, since it does not necessarily follow his employment that the attorney must incur expenses for the client. The distinction between pleading for the recovery of the value of the services rendered, and expenses incurred, is like general damages and special damages. One must be specially pleaded but not the other.

Entry accordingly with exceptions by counsel for both plaintiff and defendant.

Leave to file amended petition within the rule day.


text:
    ROST, Guardianship, In re.
    Ohio Appeals, Second District, Franklin County.
    No. 4806.
    Decided October 17, 1952.
    Edward T. Roth, Columbus, for complainant, Lillian Rost.
    L. P. Henderson, Columbus, for respondent, Ernest Andress.
   OPINION

By THE COURT.

This is a law appeal from the judgment of the Probate Court finding the appellant, Ernest Andress, guilty of having concealed or conveyed away moneys belonging to the estate of Anna Katherine Rost, an incompetent person, in the sum of $1313.00. The action was instituted under the provisions of §10506-67 GC. The record discloses that shortly prior to the filing of the complaint on March 19, 1952, Lillian Rost was appointed guardian for Anna Katherine Rost who was adjudged to be an incompetent person; that on March 20, 1950, she had on deposit in the Franklin Federal Savings & Loan Association the sum of $2045.10 which constituted her entire savings; that by April 26, 1950, all of this money had been withdrawn. Of the aforementioned sum the appellant admitted having received $1313.00, the amount of the judgment, although Anna K. Rost testified that she had given all of it to him. The appellant urges that this money was given to him several years prior to the appointment of a guardian and that the action may not be maintained under the concealment statute. Citing in re Howard’s Estate, 68 N. E. (2d) 820; and also in 72 N. E. (2d) 502. It was held here that the ward must have owned the property before the fiduciary’s appointment and a fiduciary must have the right to possession or value thereof and if both circumstances are not shown a court should dismiss the complaint or render judgment for the defendant. An examination of the bill of exceptions discloses a conflict in the testimony concerning the giving of this money. The appellant urges that it was a gift unconditionally made and never to be returned. On the other hand Anna K. Rost contradicted herself, indicating a confused state of mind, saying at one time it was a gift and at another time, a loan, and on February 13, 1952, she signed a statement that it was given under duress. This statement is in evidence as Plaintiff’s Exhibit No. 2, and it is urged by the appellant that its admission into evidence constituted prejudicial error. This Court held in the case of In re Estate of Howard, 79 Oh Ap 203, that a letter written by the decedent was admissible in evidence in a similar proceedings. We therefore hold that the statement was properly admitted.

The only other question discussed by the appellant in the brief goes to the weight of the evidence, contending that the trial court should have found that the title to this money had passed to him and therefore the action was not proper. Although the judgment entry does not recite the reason for the Court’s conclusion the opinion of the Court recites that it found that a confidential relationship existed between these parties and we think that the record supports the finding. Judge McClelland well summed up the reason for his conclusion, and which we think needs no further comment, by stating the following:

“Our attention has been called to the inconsistency of the contradictory statements made by her * * * which induces this Court to believe that this lady’s will is so weak that she can be influenced by anybody that might be close to her, and influenced contrary to her best interests. She says that she was in love with Mr. Andress. Mr. Andress intimated, or admitted at least, that there was some sort of love affair between them. * * * And when a married man (52 years old) will receive the amorous attentions of an old lady 79 years of age, it raises a suspicion immediately in the mind of any thinking person that there is something besides, or something behind that reception of amorous attention other than love and affection * * * this Court cannot come to any conclusion but what that conduct on the part of Mr. Andress in receiving the attention of this woman was for the purpose of encouraging her to deliver her money to him. And I must say, in all due respect to Mr. Andress, that * * * the most charitable characterization which this Court can give, is that it is dishonorable and repulsive * * * Mr. Andress had acquired an influence over her, if not an influence, at least a confidential relation which would require him to deal with her with extreme care and with extreme charity and fidelity. This he has not done.”

When a confidential relationship exists between a donor and donee the burden is upon the donee to prove that the gift is fair and fully understood by the donor. 20 O. Jur. 43, Section 37. Failing in such proof the gift will be set aside upon proper application being made.

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

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


author: By GRIFFITH, J.

text:
    FORT MIAMI RACEWAYS, INC., Plaintiff-Appellant, v. LUCAS COUNTY AGRICULTURAL SOCIETY, Defendant-Appellee.
    Ohio Appeals, Sixth District, Lucas County.
    No. 4784.
    Decided March 1, 1955.

      Shumaker, Loop & Kendrick, Toledo, on behalf of the plaintiff-appellant.
    Boggs, Boggs & Boggs,- Toledo, on behalf of the defendant-appellee.
    (GRIFFITH, NICHOLS and PHILLIPS, JJ, of the Seventh District, sitting by designation in the Sixth District.)
   OPINION

By GRIFFITH, J.

This is an appeal on questions of law from a judgment of the Common Pleas Court declaring the forfeiture of a lease.

On March 13, 1948, the Lucas County Agricultural Society executed a lease to the Toledo Fort Miami Raceways, Inc., of certain portions of the Fort Miami Fairgrounds to be used for horse racing and concessions. The term was from May 1, 1948, to November 15, 1952 (not to exceed forty-four nights of each year), with option to lessee to renew for an additional five years. On February 6, 1952, the Toledo Fort Miami Raceways, Inc., exercised its option of renewal thereby extending the term to November 15, 1957.

On July 16, 1952, with the consent of the Lucas County Agricultural Society, the lease, which had been duly recorded, was assigned to the plaintiff corporation. Plaintiff, in the fall of 1952 and spring of 1953, conducted running races thereon and its concessionaire, Ohio Sport-service, Inc., sold alcoholic beverages at each session of these horse races.

On September 18, 1953, the Lucas County Agricultural Society, by resolution of its Board of Directors, declared the lease terminated and notified the plaintiff that it was re-entering and repossessing the leased premises. Hence, this suit seeking relief of an equitable character to avoid such forfeiture.

It is unnecessary for this Court to pass upon the question of whether there was a subletting of the lease to Toledo Jockey Club, Inc., or to Ohio Sportservice, Inc., or to engage in an exhaustive dissertation on their corporation structures in relation to each other and in their relation to the original lessee and its assignee, the plaintiff in this case, for the reason that the facts are practically conceded in this case.

The lease provided:

“Lessee agrees not to sell, permit to be sold, kept, or permit to be kept, on said premises spirituous, vinous, malt, or any intoxicating liquor, and lessee agrees to strictly conform to all laws, ordinances, and other regulations pertaining to intoxicants.”

During the entire history of this lease up to the date of forfeiture (September 18, 1953), the following three sections of the General Code were in full force and effect.

Sec. 9884-4 GC provided:

“County agricultural societies shall not sell or grant to any person or persons, or permit in any manner, the privilege of selling, dealing, or bartering in spirituous, vinous or malt, liquors, allow, or tolerate immoral shows, lottery devices, games of chance, or gambling of any kind, including pool selling and paddle wheels, in or about any building or anywhere on its fairgrounds, at any time.”

This is a special statute prohibiting the sale of liquors on fairgrounds. It not only prohibits the county agricultural society from selling but prohibits it from granting to, or permitting, any person the privilege of selling.

Sec. 6207 GC, reads as follows:

“The unlawful sale or giving away of intoxicating liquors shall forfeit all rights of the lessee or tenant under any lease or contract of rent upon premises where such unlawful sale or giving away takes place.”

Sec. 6211 GC, reads:

“Leases void. All contracts whereby any building or premises are rented, leased, used or occupied shall become void when ‘such building or premises are used in whole or in part, for the sale of intoxicating liquors contrary to law, and the lessor, on and after selling or giving intoxicating liquors as aforesaid, shall be held to be in possession of such building or premises.”

These three statutes are in pari materia. They stand together and relate to the same subject matter. They express the spirit and policy of the intention of the legislature. The legislature has seen fit to restrict the uses of fairgrounds by limiting the powers of county agricultural societies. Not only do the statutes particularize the uses that are prohibited, but they also provide a penalty.

These sections automatically worked a forfeiture of the lease, and Courts of equity do not relieve against statutory forfeiture. Justice v. Lowe, 26 Oh St 372; Clark v. Barnard, 108 U. S. Supreme Court Reports, 780; Nahas v. George, 156 Oh St 52.

This is only another way of stating the maxim, “Equity follows the law.” When liquor was sold on these premises by the plaintiff’s concessionaire, which it is admitted occurred, the Lucas County Agricultural Society became reinvested with the possession of the premises, and it was its duty to assert the forefeiture of the lease upon full knowledge of such sale.

The plaintiff stoutly insists upon the doctrine that the prohibition stated in §9884-4 GC is limited to county agricultural societies, and that all other persons and organizations are exempt from its operaton. This is a contention which is wholly untenable.

The statute not only prohibits the agricultural society from selling liquors, but it prohibits it from granting to any person the privilege of selling such, or permitting such sale. This is a civil action to prevent forfeiture, and the line of criminal cases and statutes are of no help in disposing of the issues in this case.

The plaintiff lessee was bound by the terms of the lease, which was a matter of public record and notice to the entire world, and it was bound by the provisions of §§9884-4, 6207 and 6211 GC.

It can have no greater rights than the lease provides, and it is limited in its use of the fairgrounds by the statutory restrictions. The sale of liquor on fairgrounds was in direct opposition to and in defiance of the statutes of Ohio and was consequently unlawful.

The Trial Court found that the plaintiff breached the lease by permitting the sale of intoxicating liquors on the premises during the racing meets held in 1952 and 1953, and that such sales constituted a breach even though they were made on the premises with the knowledge and consent of the Lucas County Agricultural Society, and even though the State Liquor Board had issued to the plaintiff a license; it found that the agricultural society did not have the right, under the laws of Ohio, to waive such breach and was not estopped from asserting such breach as a ground for forfeiture and, that by operation of law, the Lucas County Agricultural Society was deemed to be in possession of the leased premises without the necessity of a formal re-entry and, that by reason of the various and numerous corporate structures and matters set forth in the Bill of Exceptions, the plaintiff did not come into Court with clean hands.

Equity denies relief to a suitor who comes into Court with unclean hands, and even though the defendant was in. pari delicto, that is no grounds for granting relief to the plaintiff.

The intendment of the statutes shows wisdom and foresight in the recognition of the evil of permitting the sale of liquors on fairground properties. Our conclusion, therefore, is that the provisions of §9884-4 GC, prohibiting the sale, granting or permitting of sale, are mandatory and cannot be waived by the agricultural society and it being admitted that liquors were sold, the lease was rendered void, and the lessor automatically reinvested with the possession of the same.

Public policy as well as the law, as we see it, demands that the judgment of the Common Pleas Court be affirmed.

PHILLIPS, J, concurs.

NICHOLS, J, dissents.


text:
    SMITH, Petitioner-Appellee, v. ALVIS, Warden, Ohio Penitentiary, Respondent-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 4950.
    Decided September 25, 1953.
    Bert Whitman, Warren, Hugh S. Jenkins, Columbus, for petitionerappellee.
    Hon. C. William O’Neill, Atty. Geni., Thomas R. Lloyd, Asst. Atty. Geni., Columbus, for respondent-appellant.
   OPINION

By THE COURT.

This is a law appeal from the judgment of the Common Pleas Court sustaining the application of the appellee, Wilson E. Smith, for a discharge from the Ohio Penitentiary on a writ of habeas corpus. The record reveals that the appellee entered a plea of guilty to the offense of possessing obscene pictures in violation of §13035 GC. The sentence of the Court was “that he be imprisoned in the Penitentiary of this state and kept at hard labor (no part of said time to be kept in solitary confinement) until legally discharged. And that said imprisonment shall be for a period of duration not less than one year * * Upon the completion of the one year sentence action was instituted for a writ of habeas corpus in the Common Pleas Court of Franklin County, Ohio.

The question presented is whether §2166 GC has application since the penalty for the offense is for “not less than two hundred dollars nor more than two thousand dollars or imprisoned not more than seven years or both.” This section provides in part as follows:

“Courts imposing sentences to the Ohio penitentiary for felonies, except treason, and murder in the first degree, shall make them general and not fixed or limited in their duration. All terms of imprisonment of persons in the Ohio penitentiary may be terminated in the manner and by the authority provided by law, but no such, terms shall exceed the maximum term provided by law for the felony of which the prisoner was convicted, nor be less than the minimum term provided by law for such felony. * * * If through oversight or otherwise, a sentence to the Ohio penitentiary should be for a definite term, it shall not thereby become void, but the person so sentenced shall be subject to the liabilities of this chapter and receive the benefits thereof, as if he had been sentenced in the manner required by this section. As used in this section the phrase ‘term of imprisonment’ means the duration of the state’s legal custody and control over a person sentenced as provided in this section.”

A felony is defined by §12372 GC as an offense which may be punished by death or imprisonment in the penitentiary. Since the sentence imposed was not less than one year in the Ohio Penitentiary it must be found that the trial court determined the violation constituted a felony. Such being the case the sentence should have been general and not fixed as to duration. The sentence was not void but subjected the appellee to the liabilities of §2166 GC the same as if the sentence had been general in the first instance. This statute is so fully analyzed in the case of Ex Parte Thorpe, 66 Oh Ap 128, 137 Oh St 325, that further comment seems not to be necessary.

It is our conclusion that the Court erred in its judgment and the same will be ordered reversed.

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