author: By MILLER, J.

text:
    J. A. MYERS COMPANY, Plaintiff-Appellant, v. MILLER, Defendant-Appellee.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5897.
    Decided October 14, 1958.
    Brownfield & Malone, William Malone, of Counsel, Columbus, for plaintiff-appellant.
    V. J. Kertzinger, Columbus, for defendant-appellee.
   OPINION

By MILLER, J.

This is a law appeal from a judgment of the Common Pleas Court finding for the defendant on the cause of action set forth bn the petition and also for the defendant on the cross-petition for the sum of $736.35 plus interest and cost of suit.

The record reveals that the action was instituted as one on account for the balance of $317.60 due on a contract for the installation of a heating system in the defendant’s home.

The answer is a general denial and cross-petition wherein the contract is admitted, and that the amount sought in the petition is the balance due under the terms of the contract, but that the same has not been paid for the reason that the contract was never completed by the plaintiff. It alleges further that the plaintiff guaranteed to install a heating system that would heat the home to certain specified temperatures with a normal consumption of oil; that the system was installed, but that it would not raise the temperature to the degree warranted; that the heat was cut off in certain rooms because of leaking coils; and finally, that the boiler blew out on three different occasions, causing smoke damages to the home and its furnishings. It further alleged that he was forced to install a new boiler and heating pipes, all to his damage in the sum of $3,000.

To the cross-petition, the plaintiff entered a general denial. The trial court found that there was an express and implied warranty; that the heating system would be suitable for the purpose intended; that it failed to perform as expressly represented; and that the plaintiff had breached the contract to the defendant’s damage.

The errors assigned all relate to the sufficiency of the evidence. We have carefully examined the entire record and conclude that the judgment is supported by the proper degree of proof. It is our opinion that the failure of the system to heat, as expressly warranted, was due to the •leaking coils which were imbedded in a concrete floor. These leaks caused a continued flow of cold water in the boiler, resulting in its overconsumption of fuel and final explosion.

The plaintiff offered evidence to show that the leaks might not have been due to improper installation by him but because of improper laying of the cement floor over the heating tubes by the general contractor, or that the leaks might have been caused by the floor settling or cracking. This theory fails because it is not supported by one scintilla of evidence.

The record does show that one of the leaks was due to a defective soldering of one of the pipe joints which was repaired by the plaintiff. The cause of the other two leaks is not established by definite proof because of the necessity of removing the concrete floor in order to make the examination: However, the inference is permissible that these also were due to defective soldering just as the one which was inspected.

It is the function of the trial court to draw inferences from established facts and not that of a reviewing court. We are also of the opinion that the court properly found that, since the defendant made known to the plaintiff the particular purpose for which the purchase was made, relying on his skill, there was also an implied warranty that the heating system was reasonably fit for such a purpose. See Paragraph “A” of §1315.16 R. C.

We have examined the well-considered opinion of Judge Reynolds in this case, and are in accord with his conclusions of law and fact expressed therein. Finding no prejudicial error in the record, the judgment will be affirmed.

PETREE, PJ, BRYANT, J, concur.


source: Caselaw Access Project

author: By SWAIM, J.

license: Public Domain

text:
    SHARKEY, Plaintiff, v. LATHRAM et, Defendants. MONARCH FIRE INSURANCE COMPANY, Plaintiff, v. LATHRAM et, Defendants.
    Common Pleas Court, Clinton County.
    Nos. 18500, 18501 and 18502.
    Decided February 26, 1959.
    Reeves & Herron, Columbus, for plaintiff in each case.
    Ely, White & Davidson, Batavia, for defendants in each case.
   OPINION

By SWAIM, J.

This matter'is heard upon Motion of defendants to require plaintiff in each case to make the petition definite and certain, as will be hereinafter discussed.

These three cases arise out of an alleged motor vehicle accident on U. S. Highway No. 22, about 4.8 miles east of Wilmington, Clinton County, Ohio, in September, 1957. In Case No. 18,500, John P. Sharkey asks for judgment for damages for personal injuries to himself and for recovery of moneys expended for medical services to himself and to his wife. In Case No. 18,501, Helene Sharkey asks for judgment for damages for personal injuries to herself, a passenger in motor vehicle. In Case No. 18,502, The Monarch Fire Insurance Company, asks for judgment for damages to motor vehicle owned by The Standard Oil Company, by way of subrogation under an insurance policy, for moneys paid. Each petition alleges a left turn in front of a car being driven in the same direction, by said John P. Sharkey, with an alleged resulting collision, and alleged resulting personal injuries and property damage.

Each petition contains the same allegations as to facts and alleged negligence:

“Further, that at said time and place, the defendants were operating a truck — ”
“ — as the motor vehicle — approached the truck operated by the defendants — sounded his horn and started to pass defendants’ truck on the left”
“ — when the motor vehicle — was passing the defendant’s truck that the defendants caused their truck to turn left without warning directly in front of the vehicle — causing the two vehicles to collide — ”
“ — in the operation of their truck, the defendants were negligent—
“1. In operating their truck—
“2. In causing their motor vehicle—
“3. —
“4. In causing their motor vehicle — ”
“ — that as the sole, direct and proximate cause of the above described negligence of the defendants and the resulting collision — ”
“plaintiff prays for judgment against the defendants — ”

To each of the three petitions, the defendants, by counsel, have filed an identical motion:

“ — to require the Plaintiff to make — Petition definite and certain by stating who was actually driving the truck mentioned— and what connection the Defendants, and each of them, had with the actual driving and operation of said truck.”

To this Motion, with supporting memo, without authorities,' the plaintiff in each case filed an identical contra, mémorandum, with four citations, noted below, stating:

“The plaintiff contends that such motion is not in order and that during the trial, a motion to elect may be in order. However, as the petition now stands, plaintiff has pleaded a joint venture.”

These four citations (with further comment by the Court), are:

Wery v. Seff, 136 Oh St 307, 25 N. E. 2d 692 (decided in 1940).

Davis v. Montei, 38 Abs 147, 49 N. E. 2d 584 (decided by Franklin County Court of Appeals in 1942, Franklin County then being in the Second Appellate District).

Hardware Mutual Insurance Company v. McGinnis, 119 N. E. 2d 698 (decided by Court of Common Pleas of Fayette County, Ohio, in 1954, at which time Fayette County and Franklin County were both in the Second Appellate District).

Tipton v. Fleet Maintenance Company, 75 Abs 204 and 516, 142 N. E. 2d 882 (decided by Court of Common Pleas of Fayette County, Ohio, in 1957, at which time Fayette County was in the Second Appellate District and Franklin County was in the Tenth Appellate District).

There are certain fundamental rules as to pleadings which are well set out in 31 O. Jur. 602, et seq.:

It is incumbent on the plaintiff, in drawing his petition, to set forth the facts essential to his cause of action positively and with precision, definiteness and certainty. — Allegations which are indefinite, vague and loosely drawn are objectionable, being open to attack by a motion to make definite and certain, as they lead to uncertainty, confusion, evasiveness and inconsistency.

In examining any cited Supreme Court case, it must be constantly born in mind the rule as to the facts and the syllabus, which is well stated in 14 O. Jur. 2d, 683:

The syllabus states the law with reference to the facts upon which it is predicated, and will not be regarded as controlling in another case in which the controlling facts are totally different, even though the legal questions involved are identical. —The rules stated in a Supreme Court syllabus must be interpreted with reference to the facts of the case, and the questions presented and considered by the Court, and canot be construed as being any broader than the facts of the case warrant.

In the cited case of Wery v. Seff, supra, the petition, as set forth in the facts of the case, stated:

“ — petition against Harry H. Seff and Robert E. Seff, a minor, designated as father and son, to recover damages — Such injuries are alleged to have occurred — when plaintiff’s wife — was run into by Robert Seff, aged fifteen, while in the process of negotiating a left-hand turn in an automobile owned but not then occupied by his father.
“The negligence charged against the older Seff was that he allowed his minor son to operate the automobile contrary to the provisions of— Ordinances of the City of Akron, making it unlawful — for the owner of any motor vehicle to permit a person under the age of sixteen years to drive such vehicle — and in failing and neglecting to have some mature person of good judgment ride in the automobile with the boy.
“The negligence charge against the younger Seff was that he violated — the Ordinances — in the manner of making the left-hand turn— that he failed to keep a lookout and to control the speed and direction of the automobile — that he failed to give any warning of his intention to make the turn; and that he drove the automobile in a way to endanger —life and limb — ”---
“Such negligence on the part of the two Seffs was stated to have been the proximate cause of the injuries, and the city ordinances — were set out fully in the petition.”

The trial court sustained demurrer on grounds of misjoinder of parties and of causes of action, and dismissed the petition; this judgment was reversed by the Court of Appeals, which remanded the same for further proceedings. The case was certified to the Supreme Court, as in conflict, and the Supreme Court of Ohio sustained the Court of Appeals and affirmed its judgment.

The Supreme Court, in paragraphs 4 and 5 of the syllabus, in this case, says:

“4. In the event of injury to a third person under such circumstances” (referring to the facts and law set out in paragraphs 2 and 3), “liability of the parent and child is not only primary, but joint and several, and both may be joined as parties defendant in an action for damages on account of the injury. 5. When two or more persons, under circumstances creating primary accountability, directly produce a single, indivisible injury by their concurrent negligence, they are jointly and severally liable, even though there is no common duty, common design or concerted action.”

In the opinion, Judge Zimmerman, says:

“There can be no doubt that the petition contains sufficient allegations to state a cause of action against Harry H. Seff. — Neither can there be any doubt that actionable negligence was charged against Robert E. Seff. — In the present case, no primary and secondary liability is involved. Under the averments of the petition, father and son are primarily liable, because the alleged injuries were attributable to their coexisting and combined negligence; the wrongful conduct of the one coupled with that of the other brought about the result complained of. Consequently, they are properly joinable in one action. — In actions to recover damages for personal injuries predicated on the negligent operation of an automobile wrongfully entrusted to an incompetent driver, the propriety of joining owner and driver as parties defendant seems to be accepted as a matter of course.”

Counsel for each plaintiff herein, after citing this case, argue as follows:

“ — one of the defendants who was the owner was not in the car, and under a petition charging the defendants with joint operation, as in our case, the Court followed the theory of plaintiff, as pleaded herein, and stated that this was a pleading of joint negligence.”

It will be seen at once that this case, Wery v. Seff, supra, is not one of Joint Adventure or Joint Venture, which plaintiffs’ counsel claims is the basis of these three cases, the Supreme Court itself refers to this case as concurrent negligence. However, even if plaintiffs were claiming on basis of concurrent negligence of defendants herein, it will at once be seen that Wery v. Seff, supra, is not authority for the style of pleading used in these three cases, but is an authority for a petition that is positive, precise, definite and certain, which is not true of these three petitions.

Without going into complete definition of Joint Adventure or Joint Venture, the attention of counsel for plaintiffs is called to the definition in 31 O. Jur. 2d 318, as to the same, which definition is taken from a case hereinafter mentioned.

Let us then consider Davis v. Montei, supra, 38 Abs 147, 49 N. E. 2d 584, cited by counsel for plaintiffs, and that opinion states;

“Plaintiff’s cause of action was predicated upon an alleged automobile collision wherein a car owned by plaintiff and driven by his minor son was damaged through the claimed negligence of defendants. —Petition—alleged that the defendant Louis L. Montei was the father of Thomas Montei, — a minor fifteen years of age; that the defendant Nancy Casto — a minor sixteen years of age, and the defendant Thomas Bangert, a minor sixteen years of age. The petition alleges that — defendants were operating a Buick automobile — and negligently operated said Buick. — The petition then sets out four specific specifications of negligence, which are as follows, in substance:
“1. Defendants then and there steered the said automobile—
“2. Defendants then and there neglected to keep their Buick under control.
“3. Defendants then and there operated their Buick—
“4. Defendant Louis L. Montei was the owner of said Buick and entrusted the same to the other defendants for said minors to operate knowing that said minors were inexperienced in the operation of said Buick—
“The petition further alleges that defendants’ negligence was the proximate cause of the accident and resultant injuries.”
“Defendants interposed motions — in substance ask that the specification of negligence 1, 2, 3 and 4 be stricken. As an alternative — if either of the above requests be overruled, then an order requiring plaintiff to make the petition more definite and certain by stating (a) which defendant, plaintiff claims had actual physical control of the Buick automobile; (b) the relationship claimed by plaintiff to exist between each defendant; (c) if it is claimed that a joint enterprise existed, by stating the facts to show such joint enterprise. The trial court sustained defendants’ motions, and plaintiff was ordered to amend the petition. Counsel for plaintiff declined to make the amendment ordered by the Court, and thereupon the court dismissed plaintiff’s petition without prejudice. This is the final order from which plaintiff gives notice of appeal.”

The Court of Appeals further said:

“The sole and only question for our determination is whether or not the court was in error in dismissing plaintiff’s petition for failure to amend, as the trial court had previously decreed.”

The writer of opinion cites Wery v. Seff, supra, quoting paragraph 5 of the syllabus, and also mentions, immediately after the same, a reference in opinion in that case concerning joint and several liability, but in this Court’s opinion, failed to consider the statements as to the pleadings in Wery v. Seff, supra, which are definite and certain, and quite different from the petition in Davis v. Montei, supra, the case before the Court of Appeals, and the opinion states:

“In a cursory, independent examination we are led to the conclusion that there is very serious doubt as to whether or not the facts of a joint enterprise are required to be pleaded, where there is an allegation of joint enterprise. We do find that there is an abundance of authority upon the proposition that the trial court should not charge upon the question of joint enterprise unless properly in the case through evidence.”

The Court of Appeals held that the trial court was in error in dismissing plaintiff’s petition; the cause was remanded with instructions for the reinstatement of the case, and to permit the filing of further pleadings within rule.

The argument of counsel for the defendant-appellee was:

“ — that an allegation of facts in more detail would at once disclose that some of the defendants at least were in no sense guilty of any negligence and that they should not be put to the bother of being continued in the litigation.”

It is therefore of interest to trace the history of this case, relating to an accident that occurred on April 25, 1941, from the Docket in Office of Clerk of Courts of Franklin County, Ohio:

May 29, 1941. Petition filed. (Summons issued, summons returned. Guardians ad litem appointed.)

June 24, 1941, and July 17, 1941. Motions filed.

December 12, 1941. Motion of Nancy Casto sustained; plaintiff ordered to amend; cause ordered dismissed.

December 12, 1941. Notice of appeal filed.

October 16, 1942. Mandate from Court of Appeals filed; judgment reversed; cause remanded.

November 6, 1942. Answer of Louis L. Montei filed.

November 6, 1942. Answers of Guardians ad litem filed.

March 13, 1943. Answer of Nancy Casto filed.

February 7, 1946. Action discontinued as to Diefendants Louis L. Montei, Nancy Casto, and Herbert Bangert. Cause to continue as' to Thomas Montei.

February 7, 1946. Amended petition filed.

February 15, 1946. Answer of Guardian ad litem filed.

January 16, 1947. Jury sworn.

January 21, 1947. Case settled and dismissed with prejudice.

Thus, some four years and eight months after the filing of the original petition, three of the defendants were dismissed from the action, which was continued for trial against one alone. Did plaintiff’s counsel finally come to the position of counsel for defendants, that facts in detail would disclose that some of the defendants were in no sense guilty of any negligence? In the meantime, much time had been consumed, with litigation, efforts of attorneys, time of the courts, and expense to clients.

In the cited case of Hardware Mutual Insurance Company v. McGinnis, supra, 119 N. E. 2d 698, sufficient facts are not shown in the opinion to show whether this case involved coexisting and continuing negligence, joint adventure, or what, except a part of defendants’ memorandum, which the Court quotes:

“The plaintiff knows that a master and servant relationship existed between the two defendants.”

The exact wording in the petition is not shown, but apparently it was somewhat like the language in Davis v. Montei, supra, and to this the defendants filed motions similar to the one in Davis v. Montei, supra, and to the ones in the instant cases. The trial Court there cites the opinion of the Court of Appeals, above quoted from, and as the same Court of Appeals had Fayette County, also, in its District, the trial court therefore says:

“In the light of the foregoing decision by our Court of Appeals, this Court is constrained to the view that the legal principles so determined and pronounced by the appellate court are controlling and dispositive of the issues raised by Branch n of defendants’ motion at this stage of the litigation in the case at bar.”

This Court is in a different Appellate District, and no similar decision from our Court of Appeals is known.

In the cited case of Tipton v. Fleet Maintenance Company, 75 Abs 204 and 516, 142 N. E. 2d 882 not enough of the petition is quoted to determine the wording of the same; this opinion relates to a Motion to Quash Service of Summons, and the Court merely cites Davis v. Montei, supra, and states:

“ — it is clear that Davis v. Montei, supra, is not directly in point with the quesion raised by defendan’s motion to quash service of summons;” and this Court is unable to see why this case was cited, as it has no application of any kind to the present question before this Court. Inasmuch as counsel for each plaintiff herein says:
“as the petition now stands plaintiff has pleaded a joint venture,” let us then examine one of the leading cases on this question, and the petition therein, as shown by the Record in office of Clerk of Supreme Court of Ohio. This case is Ford, Executor v. McCue, 163 Oh St 498, 127 N. E. 2d 209. The petition is not completely set out in the report of the case, but the record shows the petition stated:
• “On September 26, 1950, — plaintiff’s decedent was driving. When said Newton C. Blasingame, driving his said automobile — reached a point — the defendants, John E. McCue and Louie E. Rohloff negligently, carelessly and without warning backed a truck out of a private driveway —so that a collision — occurred. At said time and for some period of time theretofore, the defendants were jointly engaged in the business of selling, buying and delivering bread, and at the time of the aforesaid collision, the said Chevrolet truck, which was then and there owned by the defendant, Louie E. Rohloff and driven by the defendant, John E. McCue, was .being used by the defendants in the prosecution of their aforesaid business, to-wit: in the sale and delivery of bread.
“The aforesaid collision of automobiles — were caused solely, directly and proximately by the defendants’ carelessness and negligence in the operation of the Chevrolet truck aforesaid—
“Said truck was operated without due regard for the safety and rights of others.
“Said truck was backed up without giving ample or any warning.
“Said truck entered the aforesaid public highway — without stopping.
“ — (damaged) by the wrongful and negligent act of the defendants—
“Plaintiff prays judgment against the defendants — ”

While the trial court and the Supreme Court held that the facts in this case did not show that the defendants were engaged in a joint adventure, and therefore could not be properly joined as defendants, although the pleadings set out joint adventure.

In the opinion, on pages 163 Oh St 502, 127 N. E. 2d 212, Hart, J,, says:

“In dealing with the relationship of joint adventure, difficulty arises in differentiating the. legal implications of the relationship with their consequences from those of certain allied relationships, such as partnership, principal and agent, master and' servant, independent contractor, debtor and creditor, bailor and bailee, and joint tort-feasors.”

The opinion then sets out, the several essential elements of “joint adventure.”

The Supreme Court, in this case, in paragraph 1 of the syllabus states:

“1. A joint business adventure is an association of persons with intent, by way of contract, express or implied, to engage in and carry out a single business adventure for joint profit, for which purpose they combine their efforts, property, money, skill and knowledge, without creating a partnership, and agree that there shall be a community of interest among them as to the purpose of the undertaking, and that each co-adventurer shall stand in the relation of principal, as well as agent, as to each of the other coadventurers, with an equal right of control of the means employed to carry out the common purpose of the adventure.”

Another example, from the facts, of what is not a joint adventure, or joint enterprise, although apparently properly pleaded in the petition, is De Marco v. Lucas, 61 Abs 182, 103 N. E. 2d 583 (Court of Appeals, Cuyahoga County, 1951).

In view of the Supreme Court cases of Wery v. Seff, 136 Oh St 307, 25 N. E. 2d 692, and Ford, Executor v. McCue, 163 Oh St 498, 127 N. E. 2d 209, and the pleadings in each of these cases, this Court is of the opinion that the case of Davis v. Montei, 28 Abs 147, 49 N. E. 2d 584, is contrary to the weight of authority as to proper pleading in a petition, and that the same should now be entirely disregarded as a precedent.

Counsel for plaintiffs herein in their memo, state “plaintiff has pleaded a joint venture,” and yet cite as authorities one Supreme Court case and one Court of Appeals case, each involving alleged joint negligence of joint tort-feasors. The two are entirely different.

The pleadings in Wery v. Seff, supra, and in Ford, Executor v. McCue, supra, were definite, positive, precise and certain, not “shot-gun petition” as in Davis v. Montei, supra, and in the instant three cases. A “shot-gun petition” leads to careless and inexact preparation for trial, and if such is allowed, neither the defendants nor the court know what is the claim of the plaintiff, under such style of pleading — does the claim come under the laws relating to partnership, principal and agent, master and servant, independent contractor, debtor and creditor, bailor and bailee, joint tort-feasors, or joint adventure?

A client deserves exact thinking from his counsel, and exact thinking comes with and from properly pleaded and carefully drawn pleadings, by counsel on each side.

This court is of the opinion that the petition in each of the three instant cases fails to set out sufficient facts to show a joint adventure, if that is the true situation that counsel for plaintiffs intended to plead, neither do the petitions show joint liability of joint-tort-feasors, in any way.

The motion of the defendants in each case is well taken and must be sustained.

Counsel for defendants shall prepare proper entries in accordance with this opinion, exceptions to plaintiff in each case, submit the same to opposing counsel, and then to this Court on or before twenty days from the date of this opinion; the plaintiff in each case to have leave to file an amended petition within twenty days from date of filing of entry.


author: Per CURIAM.

text:
    STATE, Plaintiff-Respondent, v. CHAPMAN, Defendant-Petitioner.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5910.
    Decided July 29, 1958.
    Samuel L. Devine, Pros. Atty., Fred L. Newson, Jr., Asst. Pros., Columbus, for plaintiff-respondent.
    William H. Chapman, Columbus, for himself.
   OPINION

Per CURIAM.

This case is on for hearing upon a motion of the Prosecuting Attorney of Franklin County, Ohio, to dismiss the appeal.

The motion is as follows:

“Now comes the State of Ohio, Plaintiff-Respondent herein, by its attorneys, and respectfully moves the Court for an order dismissing the petitioner’s petition for a writ of error coram nobis, which was filed March 3, 1958, for the reason that the State of Ohio does not recognize common law writs which are not set forth by statute.”

The case was originally filed by William H. Chapman on March 3, 1958, -bearing Court of Appeals Number 5910 and entitled “State of Ohio, Plaintiff-Respondent, v. William H. Chapman, Defendant-Petitioner”; the case also bore Common Pleas Number 35599. Defendant was sentenced in the Common Pleas Court of Franklin County on May 14, 1956, upon a guilty plea involving a check charge.

Defendant-Petitioner, Chapman, is attempting to have his case heard on what he designates as “a writ of Error-Coram-Nobis.” This was a common-law writ which the State of Ohio does not recognize in criminal procedure. On this point we call attention to State v. Hayslip, 90 Oh St 199, the opinion in which is as follows:

“We find that in Ohio the common-law writs and pleas are designated and defined by statute just as crimes are designated and defined by statute. The writ of coram nobis and coram vobis, which are invoked in behalf of the defendants in error, are no part of the criminal jurisprudence of the state of Ohio.
“The judgment of the court of appeals is reversed and that of the court of common pleas affirmed.”

Attention is also called to Rule VII, Paragraph D, Section l, of the Court of Appeals of Ohio for the Tenth Judicial District on the question of whether or not the particular petition and the memorandum attached thereto should be considered as a motion for leave to appeal.

Due to the time which has elapsed since this case was in the Common Pleas Court of Franklin County and sentence was pronounced, we feel there is no ground or basis for granting leave to appeal. No notice of appeal was filed after the petitioner was sentenced as a defendant in the Common Pleas Court. Nothing was set forth either in his so-called petition for writ of error coram nobis or in his memorandum attached thereto which would suggest any right or basis for this court’s granting leave to appeal.

The motion to dismiss the appeal will be sustained, both upon the basis that the writ of error coram nobis may not be invoked in Ohio and, further, that petitioner has shown no basis for this court’s granting leave to appeal.

Motion sustained.

PETREE, PJ, BRYANT and MILLER, JJ, concur.


author: By PORTER, J.

text:
    KLINE, d. b. a. KLINE ENGINEERING, Plaintiff, v. FEDERAL INSURANCE CO. et, Defendants.
    Common Pleas Court, Miami County.
    No. 37319.
    Decided February 25, 1958.

      Shaw & Cox, Xenia, for plaintiff.
    j. Paul McNamara, Columbus, for defendants.
    Fred J. Milligan, Columbus, for Ohio Society for Professional Engineers, Amicus Curiae.
   OPINION

By PORTER, J.

By this action, the plaintiff seeks to recover on a contractor’s bond in which Kulka Industrial Corporation is principal and Federal Insurance Company is surety. The petition alleges that on August 31, 1954 the Department of Highways of Ohio awarded a contract to Kulka Industrial Corporation for the improvement of sections of State Routes 48 and 55 in Miami County in accordance with plans and specifications which called for grading, draining, paving with asphaltic concrete and constructing a grade crossing elimination with the New York Central Railroad. Upon being awarded the contract, Kulka Industrial Corporation furnished a bond, with Federal Insurance Company as surety, conditioned for the payment by the contractor of “all lawful claims of subcontractors, material men and laborers for labor performed and materials furnished in carrying forward, performing or completing said contract, said principal and sureties agreeing and assenting that this undertaking shall be for the benefit of any material man or laborer having a just claim, as well as for the obligee.”

On October 9, 1954, the plaintiff entered into a written contract with Kulka Industrial Corporation, by which he agreed to furnish all necessary surveying work for the project other than was furnished by the State Highway Department, including grades, elevations, slopes, bridge locations, etc., and excluding any design or detail work on the steel structure. For those services, Kulka Industrial Corporation agreed to pay plaintiff $100 per day (plus expenses) for a complete surveying crew and $00 per day (plus expenses) for consultation or necessary engineering work in plaintiff’s office. The plaintiff has attached an account to his petition which shows items of work performed under the contract amounting to $10,049.49. The account also shows payments by Kulka Industrial Corporation aggregating $6,816.54, leaving a balance of $3,232.95 for which plaintiff prays judgment.

Federal Insurance Company has demurred to the petition on ground it does not state a cause of action against Federal Insurance Company as surety on the contractor’s bond. The only question raised by the demurrer is whether plaintiff’s surveying services, which were rendered under his contract with Kulka Industrial Corporation constituted “labor” as that term is used in §§153.54 to 153.57, inclusive, R. C. Since the contract is divisible, the demurrer must be overruled if any of the items listed in the account, which is attached to plaintiff’s petition, constitute “labor” as the term is used in the above statutes.

Sec. 153.54 R. C., provides:,

“When public buildings or other public works or improvements are about to be constructed, erected, altered, or repaired under contract, at the expense of the state, or any county, municipal corporation, township, or school district thereof, the board, officer, or agent, contracting on behalf of the state, county, municipal corporation, township, or school district shall require the usual bond as provided for by law with good and sufficient sureties, with an additional obligation for the payment by the contractor, and by all subcontractors, for all labor performed or materials and tools furnished and for the use of and repairs to equipment used in connection with the construction, erection, alteration, or repair of such buildings, works, or improvements.”

This is a case of first impression with respect to the meaning of the term “labor” within the purview of the contractor’s bond statute. Cases which define “labor” for other purposes are of little assistance, e. g., Bloom v. Richards, 2 Oh St 387, which construes the term “labor” as used in the statute prohibiting “common labor” on Sunday. Likewise, contractor’s bond statutes vary widely from state to state, so that cases construing statutes of other states are of little aid in construing the Ohio statute. For example, the California statute protects all persons “performing labor upon or bestowing skill or other necessary services” rather than merely “labor.” See Myers v. Alta Construct Co., 235 Pac. (2d) 1.

It has been held, however, that there is such an analogy between the contractor’s bond statutes and the mechanic’s lien statutes (§§1311.02, 1311.03 R. C.), that it is apparent that, in the enactment of the former, the legislature intended to make the sureties upon contractor’s bonds liable for such labor and materials furnished for public works or improvements as would be the subject of a mechanics’ lien if the property were privately owned. Royal Indemnity Co. v. Day & Maddock Co., 114 Oh St 58, 150 N. E. 426, 44 A. L. R. 374; Standard Oil Co. v. Detroit Fidelity & S. Co., 24 Oh Ap 237, 157 N. E. 418; Indemnity Ins. Co. v. Portsmouth Ice, Coal & Bldg. Material Co., 35 Oh Ap 476, 172 N. E. 566, aff’d 172 N. E. 152.

In Citizens Sav. Bank v. Hocker, 34 Oh Ap 169, 170 N. E. 377, the court, in construing §2365-1 GC (now §153.54 R. C.), said: “. . . it is at once apparent from even the most casual consideration that the ‘additional obligation’ therein referred to is the payment by the contractor and all subcontractors for the labor and materials, absolutely, and without limitation or qualification of any nature whatsoever.” That statement is too broad, as is shown by American Guaranty Co. v. Cincinnati Iron & Steel Co., 115 Oh St 626, 155 N. E. 389, in which the Supreme Court said: “That there is a remote point beyond which recovery will not be allowed on such bonds may, perhaps, be conceded.” The court said the test of remoteness was whether the materials in question entered into the erection. As stated in 11 O. Jur. 2d 204, Contractor’s Bonds §18, “. . . . it is not just any kind of work done for a job that will authorize a recovery by the workman from the bondsman. Practical considerations require drawing the line near the job.” For a discussion of the analogous doctrine under the mechanics’ lien statutes, see 26 O. .Jur, 807-808, 812-816, Mechanics’ Liens §§81-82, 89-94.

Of the cases under the mechanics’ lien statutes, those involving the lien of an architect are most nearly apposite to the case at bar. An architect is entitled to a lien for supervising construction, but he is not entitled to a lien for drawing plans and specifications. Robert V. Clapp Co. v. Fox, 124 Oh St 331, 178 N. E. 586; Stark v. McConnell, 22 O. O. 123, 8 O. Supp. 23.

In Robert V. Clapp v. Fox, supra, the contract provided that' the architects were to furnish plans and specifications for dwelling houses and superintend their construction. The architects were to be paid 4% of the cost of the buildings for their services, without allocation of the amount to be paid for superintendence separately from the amount to be paid for preparing plans and specifications. The court held there was no lien for preparing the plans and specifications. Since this was an entire contract and there was no lien for one part, there could be no lien for any part.

In Stark v. McConnell, 22 O. O. 123, 8 O. Supp. 23, an architect was to receive 4% of the total construction costs for preparing plans and specifications for a building and 2% of such cost for supervising construction — a total of 6%. It was held that the architect was not entitled to a mechanics’ lien for preparing the plans and specifications, but he was entitled to a lien for services rendered in supervising construction, since such services constituted “work” performed on the structure within the mechanics’ lien statute and the contract was divisible.

Under a Kentucky statute providing, “all persons who perform labor, or furnish labor ... for the construction or improvement of any . . . railroad ... by contract . . . shall have a lien,” it was held that a civil engineer who surveyed and laid out the route over which the road was constructed performed labor for its construction, and a civil engineer who supervised the construction of the bridges or the roadbed was within the scope of the act. Central Trust Co. v. Richmond, N. I. & B. R. Co., 54 Fed. 723.

The court’s examination of the Ohio cases reveals no basis for excluding a laborer from the benefits of either the mechanics’ lien or contractor’s bond statutes merely because he is a skilled worker or renders professional services, such as an architect or engineer. In Robert V. Clapp Co. v. Fox, 124 Oh St 331, 178 N. E. 586, the laborers, whose services the court said were not lienable, were all workers whose labor was performed off the premises and had only a remote connection with the construction, viz., an architect who prepared plans and specifications, the woodchopper in the forest, an attorney who examined the title to the premises, an abstractor who prepared an abstract, a surveyor who determined the true boundaries of the property, and a financier who appraised the premises for a loan. There is nothing in the opinion which indicates that only manual laborers are entitled to a lien. The case merely holds that the labor must be performed on the premises. The court cautions that the rule should not be applied “in a narrow or technical sense, or to require that a workman or laborer should be at all times upon the premises.”

In this case, the account which is attached to plaintiff’s petition shows that most of the work was done at the site of the highway improvement. Only a small amount was done at plaintiff’s office. Where, as the petition in this case alleges, a surveyor renders services on the project which are essential to its construction, the court is of the opinion that he can recover on the “additional obligation” of the contractor’s bond.

Accordingly, the demurrer will be overruled.


author: By PETREE, PJ.

text:
    STATE, ex rel. MAXWELL, Relator, v. INDUSTRIAL COMMISSION, Respondent.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5976.
    Decided July 29, 1958.
    Schwenker, Teaford, Brothers <fo Solsberry, L. Bernell Solsberry, of Counsel, Columbus, for relator.
    William Saxbe, Atty. Geni., John R. Barrett, Richard S. Hunter, Asst. Aitys Geni., Columbus, for respondent.
   OPINION

By PETREE, PJ.

This case is now on for hearing upon motion by the respondent, the Industrial Commission of Ohio, for an order requiring the relator to make his petition definite and certain on two grounds, which are as follows:

“I. By alleging the date on which his total disability by reason of silicosis began, and the date on which the silicosis was first diagnosed by a licensed physician;
“II. By alleging the manner in which the respondent, the Industrial Commission, abused its discretion.”

The pertinent part of the petition referred to by the first ground of the motion states, in substance, that on or about June 26, 1952, relator became totally disabled by reason of a chest condition ailment, tentatively diagnosed as tuberculosis; and, further, that the relator had been in the employ of the Jones Coal Company as a coal miner for a long time prior to June 26, 1952. Then follows the following allegation:

“On April 11, 1955, Dr. D. E. Wetterauer, examined relator by x-ray. The result of the x-ray and diagnosis of Dr. Wetterauer was, within a few days of said date referred to R. A. Nebinger, M. D., Roseville, Ohio, relator’s family physician, said diagnosis indicating that relator was suffering from silicosis, and said Dr. Nebinger so informed the claimant for the first and only time on or about May 9, 1955.
“Relator caused to be duly executed and signed his certain silicosis claim and further caused the same to be filed with the Industrial Commission of Ohio on June 24, 1955, approximately five to six weeks after being advised for the first time of the presence of silicosis.”

In view of the statute in question, to wit, §4123.68 (W) R. C., it is our opinion that Branch I of the motion is well taken and should be sustained. While the relator speaks of an examination by Dr. Wetterauer on April 11, 1955, on a reference by Dr. Nebinger, and says that Dr. Nebinger informed the claimant (relator) of the diagnosis indicating silicosis for the first time on or about May 9, 1955, there is no positive statement by the relator that this was the first time any doctor had diagnosed his case as silicosis. Relator should also state the date on which his total disability by reason of silicosis began.

The second branch of the motion will be sustained. While considerable facts are set up concerning the action of the commission, the relator does not pinpoint which of those acts he claims were an abuse of discretion.

Motion sustained.

BRYANT and MILLER, JJ, concur.


author: By GOLDMAN, J.

text:
    LEFFEL et, Plaintiffs, v. BROWN et, Defendants. WOODWARD et, Plaintiffs, v. BROWN et, Defendants.
    Common Pleas Court, Clark County.
    Nos. 52779, 52780.
    Decided January 17, 1959.

      Lloyd H. O’Hara, of Vradelis, McCray & O’Hara, Dayton, for plaintiffs in each cause.
    Glenn E. Detling, Pros. Atty., Springfield, for the Board of Elections, Clark County, Ohio.
    Anson E. Hull, of Durfey, Martin, Browne & Hull, Springfield, for defendant Roland Perkins.
   OPINION

By GOLDMAN, J.

Contest of election petitions were filed in the above two cases and as they involve the same issues they were tried together and submitted together for decision.

They involve three identical local option elections held on November 4, 1958 within German Township, Clark County, Ohio, the voters of Lawrenceville and Tremont City, both located in German Township and that portion of German Township, exclusive of Lawrenceville and Tremont City, voted separately and for their own respective areas on the same group of issues.

Petition number 52780 deals with the election on these issues for the Village of Tremont City and petition number 52779 the election for German Township, exclusive of Tremont City and Lawrenceville. In each case the “noes” were certified as victors by the Board of Elections for Clark County, Ohio.

The election for Lawrenceville was not contested and is not here in issue.

The matter is before this Court by reason of §3515.08 etc., R. C., which sets forth the procedure to be followed in election contest eases, such as these.

It should be noted at the outset that the Statutes of Ohio do not enumerate any specific grounds upon which an election contest may be based. In determining the questions here involved therefor we apply long established and accepted principles of law frequently enunciated by the Supreme Court of Ohio to govern cases of this nature, which principles the trial courts are bound to respect and follow.

An “election” as that term is used here implies a choice by an electoral body at the time and substantially in the manner and with the safeguards provided by law with respect to some question or issue. Foster v. Scarff, 15 Oh St 534. (Emphasizing throughout this decision is by the Court.)

The ultimate question therefore before this Court is whether or not the electoral body involved in these cases, namely, the authorized voters of Tremont City, on the one hand, and the authorized voters of German Township, exclusive of Tremont City and Lawrenceville, on the other hand, have in fact and in law recorded or expressed a choice with respect to the local option issues voted on in those respective areas, and substantially in the manner and with the safeguards provided for the holding of such elections.

The petitions each allege that the voting on these local option issues was not fairly and properly conducted and that the votes of the voters in each case were not accurately recorded and each petition alleges identical irregularities occurring both at Tremont City and at Lawrenceville involving the use and operation of voting machines, which they claim did not function properly. They further alleged certain other irregularities in the conduct of the voting places which will be later herein discussed.

The following rules of law dealing with the matter of alleged election irregularities are pertinent and applicable to these cases:

“Honest mistakes or mere omissions on the part of election officers or irregularities in directory matters, even though gross, if not fraudulent, will not render an election or particular votes cast therein, invalid, unless they affect the results of the election or render it uncertain.” 19 O. Jur. 2d, p. 144. And again, “Where irregularities in an election are so great and so flagrant in character as to render it impossible to separate the illegal from the legal votes and to raise a doubt as to how the election would have resulted had such irregularities not occurred, they must be deemed fatal to the validity of the election and to warrant a rejection of the entire vote of the election district.” Otworth v. Bays, 155 Oh St 366.

These citations suggest the yardstick and the rule to be applied in the determination of the issues in the instant cases.

The petitions, the stipulations entered into by counsel, and the evidence offered at the trial, set forth the following irregularities claimed and they and the findings of the Court with respect thereto are as follows:

(a) “That persons other than qualified voters were permitted to enter the voting machines in company with said voters in violation of Statute.”

The Court finds no substantial evidence in the record to support this alleged irregularity.

(b) “That certain officials working at the voting precincts during the election were not properly sworn or otherwise qualified as required by law.”

With respect to this alleged irregularity it is admitted that one of the challengers was not sworn as required by law before undertaking his duties. However, the record fails to disclose any evidence whatsoever indicating the activity, if any, in which this challenger engaged during the course of the election on November 4. Thus the Court finds that such irregularity was a technical one having no effect or bearing on the results of the election and entitled to no consideration in its determination of the ultimate issue in these cases.

(c) “That the statements of issues as they appeared on the voting machines were erroneous and defective in that they specifically referred to ‘five’ issues whereas in fact ‘six’ issues were to be voted on.”

With respect to this alleged irregularity an examination of the ballot forms actually in use on the voting machines and as they appeared on election day, and consideration of the pertinent statutes of the Revised Code which compels the grouping of the first five issues in separate form and style, the Court finds that no irregularity existed with respect thereto and that no finding that voters were misled thereby can be substantiated.

(d) This leaves for final consideration those irregularities based on and pertaining to the condition of the voting machines themselves and more particularly the manner in which they were operated and used with which most of the evidence is concerned.

With respect to these irregularities plaintiffs claimed that the machines failed to function in that they did not record the votes actually cast.

The evidence however, clearly establishes that on the contrary, the votes actually cast were indeed recorded and tabulated and it is this fact as will later herein appear, which is responsible for the serious problems which resulted.

Plaintiffs further complained that voters not qualified to vote on the respective local option issues were permitted to and in fact did so vote and the evidence discloses and it is in fact admitted by all of the parties hereto that in this respect some irregularities did in fact occur. The plaintiffs claim these irregularities were fatal and the defendants minimize or dismiss the effect of these irregularities contending that they were not so serious as to warrant a rejection of the results as certified by the Board of Elections.

The evidence disclosed that voters for both Tremont City and a portion of German Township, exclusive of the Village of Tremont City and Lawrenceville voted at the two voting machines in Tremont City. Voters for the Village of Lawrenceville and that portion of German Township outside of that village both voted on the two machines in Lawrenceville. Voters of German Township South, the remaining precinct in the Township voted on one machine situated at a chureh elsewhere within the township. There were no irregularities alleged or complained of with respect to the latter machine.

Thus voters using the two Tremont City Machines were both village residents who were qualified to vote only on the group of local option issues that applied to Tremont City alone, plus residents outside of the village who were qualified to vote only on the local option issues as they applied to German Township, exclusive of the Village of Tremont City and Lawrenceville. The same situation existed at the Village of Lawrenceville. Thus in both villages two separate groups of voters used the same voting machines to vote separately on local option issues.

Under normal voting procedures, voters, applying to vote, after being first qualified as to their residence were handed “authority slips,” which were either white or blue, depending upon whether they resided in the village or township, and upon which instructions were printed, the effect of which was to clearly indicate to the precinct official operating the voting machine, which set of issues that voter was entitled to vote on. The slip instructed him on how to set the machine in order to accomplish this purpose. The precinct official operating the machine, upon receiving this slip, noting its color and reading the instructions printed thereon, was then required to set the voting machine in accordance with the instructions on the slip so that one or the other of the two sets of local option issues would be “locked out” thus making it possible for the voter to vote only that set of issues that applied to his particular residential area, at the same time “locking out” the other set of issues for which he was not qualified to vote. Thus if the official operating the machine followed these instructions correctly, the voter upon entering the voting machine would find it physically possible to move only those levers appearing on the set of issues that applied to his residential area and physically impossible for him to move the levers that applied to those issues that were “locked out.” At both Tremont City and Lawrenceville the issues for the village and for the township respectively, appeared on separate rows on the face of the machine.

The foregoing was the normal procedure that was supposed to be followed on the two machines at Tremont City and the two machines at Lawrenceville.

The precinct official operating the machine accomplished this “lock out” of one group of issues or the other by using two levers situated at opposite sides, on the outside of the voting machine, the correct use of which would “lock out” one of the two sets of issues in accordance with the circumstances and conditions hereinbefore described. One of the levers was referred to in the evidence as the “primary lever” and the other as the “lock-out lever.”

The confusion that arose and the irregularities complained of which form the principal grounds upon which these petitions are based resulted from allegations that the election officials who manually operated the voting machines at Tremont City and Lawrenceville erroneously and improperly handled and manipulated the levers on the outside of the voting machines so that a voter qualified to vote on only one set of issues, in using the machine, nevertheless could and in many instances did move the levers for both sets of issues that appeared on the ballot, thus in effect voting on both village and township issues.

Thus, as a concrete example, a voter, resident of German Township outside of Tremont City, in voting at Tremont City, could, if he chose, vote not only on the issues that pertained to German Township outside of the village, but also for the local option issues for Tremont City as well, or vice versa, and when that happened, it was undisputed that his votes on both groups of issues would be recorded and tabulated.

The evidence discloses that not only could this have been done, but that it actually was done in many instances. It should be added that this happened without any conscious knowledge on the part of the voter that he was doing anything wrong or improper. Some of the witnesses testified that inasmuch as they found it possible to move both sets of levers they believed that they were expected to do so as part of their voting and that they realized their error later that same day or sometime thereafter, only upon reflection or after exchanging and comparing similar experiences with other voters.

. These irregularities occurred for the greater part at Tremont City where most of the complaints were registered. They most frequently arose out of the manual operation of the voting machine operated by the presiding official, a Mr. Derr, who was made a party defendant in each of these cases, but who did not file an answer or make any appearance in either case and apparently was unavailable to give testimony at the trial, notwithstanding efforts by counsel to secure his cooperation and testimony. In any event his testimony was unavailable to the Court, although the evidence offered by others quite clearly establishes the manner and circumstances under which the voting on his machine took place.

More than a dozen of the witnesses who testified for the plaintiffs, voted at. Tremont City. They testified to conditions prevailing there from as early as 6:50 a. m. until 6:30 p. m. election day. Most of their testimony concerned the machine operated by Mr. Derr. In some instances they voted for both sets of local option issues, unaware at the time that they were not supposed to do so, some testified that the voting levers at each set of issues were movable and that they could have voted on both, but discovered the error before leaving the machines and voted only for the one set of issues, still others testified that the wrong set of issues were “locked” out” so that they were prevented from voting at all on the issues on which they were entitled to vote, and in one instance a witness related an inability to vote on the local option issues because the levers were not movable at all. It was established beyond dispute that each of these experiences could have taken place only in the event the levers on the outside of the machines were incorrectly set.

Four other witnesses, who testified for the plaintiffs, related somewhat similar experiences at Lawrenceville.

In addition to these witnesses there was the testimony of Mrs. Lind, the precinct official who operated the second machine at Tremont City. She frankly related the difficulties which both she and Mr. Derr encountered in the operation of the voting,machines from the very opening of the polls early in the morning. She testified to complaints frequently made during the day by voters to the effect that either they could not pull the proper levers or that the wrong group of local option issues was being “locked out.” She testified that help was sought from the Board of Elections, which first sent an official to the booth in the morning just as the polls opened. The complaints continued throughout the morning and further help was sought. In answer to further request for aid, at 10:50 a. m. Mr. Hise, the voting machine custodian, employed by the Board of Elections, an expert trained in the maintenance and use of the voting machines, arrived and remained at the machines at Tremont City until 1:30 p. m. in the afternoon, during which time he further instructed the officials on the proper use of the outside levers. She testified that in order to prevent further difficulties and errors in the operation of her machine, Mr. Hise set the levers so that if not further moved, only German Township voters, from outside of the village of Tremont City, could vote on local option issues. This was to relieve her of the duty to change the positions of the levers on the outside of her machine and thereby avoid the confusion which had by her own admissions prevailed earlier in the morning. Thus under the latter arrangements, voters of Tremont City were to use for the remainder of the day, only the machine operated by Mr. Derr, Her testimony further revealed that there was considerable confusion and uncertainty throughout the morning of election day with respect to the proper operation of the levers on the outside of both voting machines. She stated that because of her own admitted errors in manipulating her machine, she feared that all votes east by Tremont City voters on the local option issues were not even recorded. There is a conflict in the testimony as to whether or not Mr. Hise advised her to that effect. He denied her claim that she was so advised by him.

The testimony of Mr. Hise is illuminating and important and for the most part undisputed. He testified that he received the call concerning the complaints at Tremont City about 10:30 a. m. and arrived there at 10:50 a. m. Upon arrival he found that Mr. Derr’s machine was improperly set, in that at that particular time he was using only the “primary lever” on the outside of the machine and completely ignoring the “lock out lever” on the outside of the machine, as a result of which voters using that machine could, if they wished, have voted on both sets of issues. He further testified, and it is undisputed, that when that happened both sets of votes would be recorded and tabulated and reflected in the election results. He further testified that he set the machine operated by Mrs. Lind so that it would record only the votes of German Township voters outside of the village with Tremont City voters required to use Mr. Derr’s machine. He testified that he did this because he found Mrs. Lind in too nervous a condition to properly operate the machine levers.

He testified further that he stayed in the precinct, assisting and instructing the officials in the operation of the machines from 10:50 a. m. until 1:30 p. m., over two and one-half hours, although only he and one other employee were available to service the voting machines throughout the county, a fact which of itself suggests the extent and magnitude of the confusion that attended the voting at Tremont City that day. He testified further that the machines themselves were not mechanically defective, but that the errors which did occur were the result of their improper operation and more specifically that Mr. Derr was not following the instructions on the authority slips with respect to the setting of the levers. He stated also that when he left the booth at 1:30 p. m. the automatic vote tabulator on the outside of the machines indicated, that by 1:30 p. m. that afternoon, 100 voters had already voted on Mr. Derr’s machine and that 98 voters had voted on Mrs. Lind’s machine. Under questioning by the Court he estimated that during his stay there, from 10:50 a. m. until 1:30 p. m., about 30 voters had voted, which means that up to 10:50 a. m., during which period most of the complaints occurred, approximately 168 voters from both Tremont City and the Township had already cast their ballots on the two machines at Tremont City.

What bearing should all of this testimony have on the questions which the Court must consider in deciding these cases?

It should be stated first of all that fraud is not a factor in these cases. None was claimed, and the evidence fails even to suggest that any was practiced.

Now it becomes necessary to apply the principles and rules laid down by the Supreme Court of Ohio, as cited earlier in this decision to the evidence in these cases.

Were these irregularities which were abundantly established and to a great extent admitted, so great and so flagrant in character as to render it impossible to separate the illegal from the legal votes and to raise a doubt as to how the election would have resulted had such irregularities not occurred?

In applying this yardstick first to the election for Tremont City Village on the local option issues, a glance at the votes on the six issues voted on, reveals a comparatively wide range of feeling with respect to the different issues involved. Voters who voted “yes” on some of the issues voted “no” on others. The highest “yes” vote was 59 on issue number 6, which had to do with the sale of beer, and the lowest “no” vote was 77 on issue number 2, which related to the sale of wine, a difference of only 17 votes. Recall now that a total of 173 voters from Tremont City were the only ones eligible to vote on these issues as they applied to Tremont City and 168 votes had already been cast up to 10:50 a. m., in the morning, when Mr. Hise arrived and found the situation above described and presumably thereafter clarified the procedures. Recall further that these 168 voters were from both village and. township and that there is no way of now separating their votes and that they could have voted on either or both sets of issues, and recall 'further that the evidence discloses that a good many voters had in fact done so.

In the light of these facts the court must conclude and find that it is impossible to separate the illegal from legal votes and that in the light of the evidence there is great and serious doubt as to how the election for Tremont City Village would have resulted on at least some of the six issues involved, had such Irregularities not occurred.

The Court wishes to repeat and emphasize that the situation which compels the conclusions above reached was not the result of conscious wrong-doing on the part of anyone involved in the election proceedings or by any of the parties involved in these suits, but were purely the result of what counsel frequently referred to as “human errors” which the Court understands and with which .it sympathizes and no censure of any of the parties involved is intended or inferred by any of the statements herein made. The unmistakable fact nevertheless remains that errors did occur and that they did cause the uncertainties which compel this Court to seriously doubt whether the authorized voters of Tremont City did in fact record or express “a choice” on the local option issues before them, as certified by the Board of Elections.

For these reasons the Court finds for the Plaintiffs in case number 52780 and orders that the election as to the local option issues for Tremont City be set'aside.

Applying the same principles to case number 52779, which involves the election for German Township, exclusive of Tremont City and Lawrenceville, the Court concludes otherwise.

No question was raised about the single voting machine at German Township south precinct.

The evidence given by the 4 witnesses who testified with respect to the voting at Lawrenceville failed to disclose anything comparable to the pattern of error and confusion that prevailed at Tremont City. At most they appeared to be isolated instances and had no appreciable or decisive effect on the results of the election for German Township as a whole.

An examination of the results for German Township in all 3 voting precincts discloses such an enormous majority of “no” votes over “yes” votes that even if the total number of authorized voters from the Village of Tremont City, to wit 173, regardless of whether they voted “yes” or “no,” were deducted from the “no” votes recorded on each of the “six” issues for German Township there would still be a large majority in favor of the “no” votes on each of the 6 issues presented. If in addition to this the total number of authorized voters for the Village of Lawrence-ville, to wit, 72, regardless of how they vote on these six issues were, in addition to the Tremont City voters, subtracted from the total “no” votes recorded for the township the results would still be the same for each pf the six issues presented.

Under these circumstances and employing the same yardstick applied to the Tremont City case, the Court finds that whatever irregularities occurred, even though interpreted in the most unfavorable light, were not so great as to raise a doubt as to how the election for German Township would have resulted had such irregularities not occurred.

For these reasons the Court finds in favor of the defendants in case number 52779 and the election on the local option issues insofar as German Township is concerned may stand as announced and certified by the Board of Elections.

The restraining order heretofore issued against the Ohio Department of Liquor Control in case number 52779 is dismissed.

Counsel may prepare and submit an entry incorporating the findings and conclusions announced in this decision.


author: By CRAMER, J.

text:
    HENSLEY, In re.
    Common Pleas Court, Butler County.
    No. 76908.
    Decided October 6, 1958.
    Geo. C. McCandless, for respondent.
    Ralph A. Henderson, Asst. Atty. Geni., for State of Ohio.
   OPINION

By CRAMER, J.

This matter is before the court upon application made by the above named, whom we will refer to as respondent, for dismissal of the application of the Registrar of Motor Vehicles of the State of Ohio who seeks to suspend respondent’s driver’s license. Such application was filed pursuant to §4507.40 R. C.

The suspension applied for by the Registrar is sought by reason of claimed accumulation by respondent of twelve points by reason of motor vehicle violations.

The respondent contends that such application must be dismissed for the reason that the Registrar filed his application in this court more than thirty days after his last conviction. The last conviction was May 26, 1958 and the Registrar filed his application on the 27th day of June, 1958.

Sec. 4507.40 R. C., among other things, provides:

“When, upon determination of the Registrar, any person has charged against him a total of not less then twelve points within a period of -two years from the date of the first conviction within said two year period, the registrar shall within thirty days from the date of the last such conviction, file an application with the Clerk of the Court of Common Pleas in the county where such person resides . . . ., requesting suspension of such person’s license or permit to operate a motor vehicle for a period of one year.”

Since there is evidence that this application was filed more than thirty days from the date of respondent’s last conviction (32 days) our question is whether the thirty day provision found in §4507.40 R. C., is mandatory or directory only. Counsel for the Registrar has furnished the court with a memorandum wherein are cited the following authorities:

State, ex rel. Smith v. Barnell, 109 Oh St 246; State, ex rel. Jones v. Farrar, 146 Oh St 467; Miller v. Lakewood Housing Co., 125 Oh St 152; Bliss Realty Co. v. Darrash, 111 Northeastern, 2nd.

The courts rendering the decisions in the above causes, of course, did not have this identical question before them. However, they did pass upon cases wherein time limitations such as we are here confronted with, were involved.

These courts concluded, and the general tenor of their decisions is to the effect that laws establishing limitations as to time within which such an act is to be done are directory and not mandatory.

Generally, a mandatory provision in a statute is one the omission to follow which renders a proceeding to which it relates illegal and void. A directory provision is one, the absence of which is not necessary to the validity of the proceedings.

It has been held that whether a statute is mandatory or directory is to be ascertained from a consideration of the entire act, its nature, its object, and the consequences which would result from construing it one way or the other.

It has also been asserted that where the instructions of a statute are given merely with a view to the proper, orderly and prompt conduct of business, the provisions may generally be regarded as directory.

See State, ex rel. v. Barnell, supra.

Here certainly the phraseology of this statute is not such that the designation of time must be considered a limitation upon the power of the Registrar.

The section in question does not state in terms that if the application of the Registrar ,is not filed within thirty daws from the date of the last conviction the Registrar loses jurisdiction over the matter.

In the case of State, ex rel. v. Farrar, supra, Judge Hart made this assertion:

“Whether a statute is mandatory or directory is to be ascertained from a consideration of the entire act, its nature, its effect and the consequences- which would result from construing it one way or the other. In each instance it is necessary to look to the subject matter of the statute and consider the importance of the provision which has been disregarded and,the relation of that provision to the general object to be secured by the act.”

We too are of the opinion that limitations as to time such as we are here dealing with should ordinarily be determined as directory and not mandatory, if no substantial rights are affected and no injury will be done by failing to strictly apply the same.

When we consider the “subject matter of this statute here in question and consider the importance of the provision which has been disregarded and the relation of that provision to the general object intended to be secured by the act,” we are impelled to the conclusion that the aforesaid provision is directory only.

We cannot conceive how or in what manner the respondent herein has been prejudiced or what substantial or material right he possesses has been violated by the Registrar’s filing of this application two days late. As a matter of fact it could be urged that respondent has been benefited in the delay since his privilege to operate a motor vehicle in this state would be extended for at least two additional days if at the scheduled hearing his license is suspended for a year.

In this connection it is to be noted that the duty of the Clerk of the Common Pleas Court to notify the respondent of the filing of the Registrar’s application does not commence until after the filing thereof. (See §4507.40 ft. C.)

We believe that the purpose of the Legislature in enacting this legislation can be accomplished in a manner other than that prescribed and substantially the same results obtained, if the thirty day provision be ignored. Therefore the provisions of this statute here drawn in question are to be regarded as directory. (See Miller v. Lakewood Housing Co. supra, at page 161.)

We therefore find that the respondent’s motion to dismiss the application is not well taken and will be overruled.


author: By WEICK, District Judge.

text:
    NAPIER, Plaintiff, v. GRAW et, Defendants.
    United States District Court N. D. Ohio, E. D.
    Civ. A. No. 32517.
    Decided November 1, 1957.
    Edward T. Butler, Cleveland, for plaintiff.
    Joseph A. Thiel, Cleveland, for Graw and himself.
    Ralph D. Kovanda, Cleveland, for Forrester & Davis.
   OPINION

By WEICK, District Judge.

The defendants are officers and members of the Board of Directors of Colonial Insurance Company, a mutual protective association organized and licensed under the insurance laws of - Ohio for the purpose of writing health and accident insurance.

The company was subject to regulation by the Division of Insurance of the State of Ohio.

The complaint alleged that a written agreement of settlement was entered into on October 2, 1955, between plaintiff and defendant E. A. Graw under the provisions of which Graw assigned to plaintiff renewal commissions due and to become due to Graw from the insurance company, for a period of years, as provided in an agency agreement between Graw and the insurance company dated November 1, 1950; that the insurance company accepted the assignment.

The complaint alleged that in the negotiations for the settlement, the defendants, who were in control of the affairs of the insurance company, represented to plaintiff that the agency agreement was legally binding upon the insurance company; that no steps would be taken to terminate any rights of Graw or of plaintiff thereunder and that the renewal commissions would be paid as they accrued; that plaintiff entered into said settlement agreement on the faith of said assurances.

The complaint charged! the defendants with a conspiracy to injure and damage the plaintiff by taking steps in violation of said assurance, to cancel and terminate the rights of Graw and plaintiff under the agency agreement and prays for damages in the amount of $100,000.

The motion for summary judgment was supported by affidavits and briefs including copies of the pleadings and judgment entries of the Common Pleas Court and the Court of Appeals of Cuyahoga County, Ohio, in the case of Colonial Insurance Company v. Graw, Common Pleas Court No. 656,614, 102 Oh Ap 430, 2 O. O. (2d), 447, 129 N. E. (2d), 491.

It appears from the evidence that on January 25, 1954, the Superintendent of Insurance of the State of Ohio wrote a letter to the insurance company advising it that the agency agreement with Graw dated November 1, 1950, had been reviewed and in the judgment of the Division of Insurance it conflicted with the principles established by the Supreme Court of Ohio in the case of State ex rel. National Mutual Insurance Company v. Conn., 115 Oh St 607, 155 N. E., 138, 50 A. L. R., 473, and was therefore, illegal. The insurance company was asked by the Superintendent of Insurance to cancel the agency agreement immediately and to make no further payments on either past or present obligations.

The insurance company, in conformity with the order of the Superintendent of Insurance, notified Napier in writing of the cancellation of the agency agreement and then instituted the action, herein-before mentioned, in the Court of Common Pleas of Cuyahoga County against defendant, E. A. Graw, doing business as E. A. Graw Agency, L. O. Napier (plaintiff herein) and defendant Joseph A. Thiel for declaratory judgment with respect to the validity of said agency agreement and its liability to Napier for commissions thereunder.

In said action, Napier filed a counterclaim in which he sought to enforce the agency agreement and assignment against the insurance company and prayed for judgment in the amount of $135,000.

The case was heard by the Common Pleas Court, on its merits, resulting in a finding and judgment by the court that Graw had not performed the agency agreement, but had used funds of the insurance company in violation of the insurance laws, to operate the agency and that the agreement was, therefore, void and unenforceable. Judgment was entered accordingly in favor of the insurance company and Napier’s counterclaim was dismissed.

On appeal to the Court of Appeals, the judgment was affirmed. Colonial Insurance Company v. Graw, 102 Oh Ap 430, 2 O. O. (2d), 447, 129 N. E. (2d), 491. The appellate court held that there had been a failure of consideration and that the agency agreement was unenforceable.

Thus we have an adjudication by the state courts that the agency agreement, which constituted the very -basis of plaintiff’s claim, was unenforceable and that the insurance company owed him nothing under his assignment.

This Court is required to follow the decision of the state court of appeals on the law of Ohio. Erie R. Co. v. Tompkins, 304 U. S., 64, 58 S. Ct., 817, 82 L. Ed., 1188; West v. American Telephone & Telegraph Co., 311 U. S., 223, 61 S. Ct., 179, 85 L. Ed., 139.

In substance, the plaintiff’s claim is that the officers and directors of the insurance company, in violation of their agreement and understanding with him, conspired to defeat his claim against the insurance company and that he was damaged as a result thereof.

The Superintendent of Insurance of the State of Ohio made an order upon the insurance company to cancel the agency agreement. The insurance company could have refused to obey the order with the risk of having its license to do business cancelled, but it chose to comply therewith. The insurance company adopted the proper procedure, namely, to ask a court of competent jurisdiction to determine the controversy.

Plaintiff knew, when he entered into the settlement agreement, that the defendants were officers and directors of the the insurance company and as such were acting in a fiduciary capacity. They had no right to squander its assets or to pay claims which it did not owe. For them to agree, as plaintiff claims, to cause the insurance company to recognize and pay an illegal and unenforceable claim, which the company did not owe, would have constituted a fraud on the insurance company and its policyholders. This court could not enforce any such agreement, even if the officers and directors had made it, for it would be illegal. If defendants conspired to resist plaintiff’s claim, they merely performed their duty which they owed to the insurance company under the law and they violated no obligation to the plaintiff. Gross v. Campbell, 118 Oh St 285, 160 N. E., 852; Sullivan v. Wilkoff, 63 Oh Ap 269, 17 O. O. 32, 26 N. E. (2d), 460.

The assignment to plaintiff of commissions due and to become due to Graw under the provisions of the agency agreement did not vest in plaintiff any greater rights than were possessed by Graw. Since Graw’s agency agreement was unenforceable, no commissions became due and the assignment was without effect.

Napier is not in a position here to relitigate the validity of the order of Superintendent of Insurance nor collaterally attack the judgment against him in the state court determining the invalidity of the agency agreement.

Since the insurance company owed Napier nothing, he could not be damaged by a conspiracy even if it existed.

There is no genuine issue of fact in this case. The motion for summary judgment is, therefore, granted and the complaint is dismissed,


text:
    COLUMBUS (City), Plaintiff-Appellee, v. SHUFFELT, Defendant-Appellant.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5708.
    Decided February 4, 1958.
    Russell Leach, City Atty., Bernard T. Chupka, City Pros., Columbus, for plaintiff-appellee.
    Isadore Margulis, Columbus, for defendant-appellant.
   OPINION

By MILLER, J.

This is a law appeal from a judgment rendered upon the verdict of a jury finding the defendant guilty on the charge of operating a motor vehicle while under the influence of intoxicating liquor. Upon appeal to the Common Pleas Court Judge Bartlett found no prejudicial error in the record with the exception that the bill of exceptions showed that an opportunity was not afforded the accused, personally, to state whether he had anything to say why judgment should not be pronounced against him. He was of the opinion that failure to offer the defendant this opportunity was not in accordance with §2947.05, R. C., reversed the judgment and remanded the cause to the Municipal Court for resentence and for no other purpose.

The appellee has filed no cross-appeal to this ruling; hence, the question arises whether or not the judgment of the Court of Common Pleas is prejudicial to any of the rights of the appellant. This judgment is in accordance with the rule of law in Silsby v. State, 119 Oh St 314, wherein Judge Marshall says at page 317:

“* * * if the defendants have not been afforded the opportunity to speak in their own behalf before sentence, that opportunity should yet be afforded to them.”

The other errors assigned are directed to the sufficiency of the evidence and the appellant’s constitutional rights. As to the latter only the claim is made in the general terms that the verdict and judgment conflict with the defendant’s constitutional rights. No specific reference is made to any place in the bill of exceptions wherein these alleged violations occurred and our examination of the same reveal none. The prosecution offered substantial evidence in support of all of the elements of the offense and most of which was denied by the defendant. His testimony was uncorroborated, while that offered' by the proescution’s witnesses was, in most instances, corroborated. •

Although we may not weigh the evidence, if we were permitted to do so we would be compelled to arrive at the same conclusion as the jury.

Therefore, the judgment is not against the manifest weight of the evidence; neither is it contrary to law. We find no prejudicial error in the record, and the judgment will be affirmed.

PETREE, PJ, BRYANT, J, concur.


author: By COHEN, J.

text:
    COHN, Plaintiff, v. CELEBREZZE et, Defendants.
    Common Pleas Court, Cuyahoga County.
    No. 685319.
    Decided December 8, 1958.
    Danaceau, Cohn & Brown, Cleveland, for plaintiff.
    Ralph S. Locher, Director of Law, Joseph H. Crowley, Chief Counsel, Andrew R. Sarisky, John J. Prince, Assts. Director of Law, Cleveland, for defendants.
   OPINION

By COHEN, J.

Laura G. Cohn, the plaintiff in this case, instituted this suit and asks for an order enjoining the City of Cleveland and certain officials thereof from refusing to supply her business premises located at 3901 Superior Avenue, Cleveland, Ohio, with water.

The plaintiff acquired title to the premises here in question on March 13, 1956. They were transferred to her pursuant to a journal entry in case No. 662,448 by reason of a sheriff’s sale in foreclosure. The land is Torrenized and a Torrens certificate of title was confirmed in the plaintiff on that same day. There is no allegation that there is any notation thereon showing any claim by the City of Cleveland for any delinquency in the water or sewer rental. In fact, one of the stipulations is:—

“1. From the date of the first delinquency due in connection with the stipulated bill concerned with herein, the Director of Utilities of the City of Cleveland did not certify such delinquencies to the Director of Finance of the City of Cleveland, nor did the Director of Finance certify such delinquencies to the Auditor of Cuyahoga County.”

On December 3, 1954 the City shut off the water supply to the premises. After acquiring title to them, the plaintiff obtained a permit for the use of water for building purposes. The City then stopped the water supply to said, premises because of the nonpayment of the water bill by the former owners and are now supplying water only because of the issuance of a temporary mandatory injunction issued by this court.

The water bill here in question amounts to some $1,378.67 and accrued during the period from March 1st, 1952 to December 15, 1954. It is partially for water and partially for sewer rental. Actually during that period the total water and sewer bill amounted to some $4,200.00 but partial payments were made from time to time by the former owner during his occupancy.

When the City shut off the water supply in 1954 it chose one of several remedies to enforce collection of the past due account, see Gatton v. City of Mansfield, 67 Oh Ap 210. Another method it could have used would have been to enforce its right against the defendant by means of a lien filed against his real estate, see City of Bucyrus v. Sears, 34 Oh Ap 450, 171 N. E. 256.

The question presented here is whether or not the remedy selected by the City is enforcible against this plaintiff. For the reasons set out below this Court has concluded that it is not.

Both parties have submitted excellent briefs and the Court has taken some time to study them and the cases cited therein. From a reading of the briefs and a study of the law involved, this Court has been unable to find any case directly in point. And because of the fact pattern here (i. e. water cut off, sheriff’s sale, Torrenized certificate), this Court feels that the cases previously decided are all distinguishable from the instant case. Many courts have recognized that in water rate eases the fact pattern often causes the legal result to differ, for an example of this see Quick v. The District of Columbia, 90 A. 2d, 235 at page 236.

The City primarily relies on three of its ordinances, namely, 7.2709, 7.2116 and 7.2117. Under 7.2109 the penalty provided for nonpayment of a water bill is that the water shall be turned oS until all charges due and payable have been paid. The ordinance continues:—

“The provisions of this section, shall apply whether or not there has been in the meantime a change of ownership or possession of the premises supplied, except in cases of bankruptcy or foreclosure proceedings as set forth in Secs. 7.2116 and 7.2117.”

The provisions in Sections 7.2116 and 7.2117 state that should the plaintiff or a cross petitioner in a foreclosure action notify the director of the water department of the pendency of the action, then the purchaser will be entitled to have water furnished the premises without payment of the water bills accrued by the previous owner, but only “for any period subsequent to the date of the receipt of notice of the pendency of foreclosure proceedings by the Director.”

In the case of Pfau v. Cincinnati, 142 Oh St 101, the Supreme Court of Ohio held that similar ordinances in Cincinnati were properly enacted under Sec. 4, Article 8, Ohio Constitution. The Court held “In the exercise of these powers a municipality may adopt an ordinance making an owner of real estate liable for all charges for service and water supplied by such municipality through connections installed or maintained on the premises of such owner.” Thus we see that the Supreme Court has held that a property owner may be liable under authority of an ordinance for his tenant’s water bill and the liability may be enforced through court action and/or a denial of water service to the property.

Although the rule under the Pfau case, supra, is contrary to that in some jurisdictions, see Provident Trust Co. of Philadelphia v. Judicial Building & Loan Association, 71 A. 287; Farrow v. Ward, 53 A. 2d, 46; Etheredge v. City of Norfolk, 148 Va. 795, 139 S. E. 508; 55 A. L. R. 781; Rockford Savings & Loan Association v. City of Rockford, 252 Ill. 348, 185 N. E. 623, it is followed in others, see Prudential Company of Minnesota, 277 N. W. 351; Commonwealth v. City of Philadelphia, 19 A. 136.

This Court does not think the legal principles or facts applied in the Pfau case, supra, are analogous to those in the instant case. Here the plaintiff is one protected by a Torrenized title; by §5309.28 R. C., which provides that the owner of Torrenized land holds title free from all encumbrances not filed of record; and in particular by Section B thereof, which must be read as provided that any taxing district in this state must levy any taxes for assessments against the land; and by §5309.34 R. C., which provides that the transferee of registered land need not take notice nor make inquiry of any lien, claim, demand or interest of any one who is not named in the certificate, or who has not filed as provided by Chapter 53; and by §5309.23 R. C., which provides that a .decree of confirmation and registration shall be absolutely conclusive against all persons including the state or any political subdivision thereof.

The City contends that the plaintiff was not diligent in ascertaining the status and condition of the property in regard to various incidents of ownership and in particular, did not make any inquiry of any claim of the City regarding the water bill. Obviously §5309.34 R. C., states that she need not make such inquiry and the city by ordinance may not raise itself by its own bootstraps. In addition, the dilatoriness of the City in failing to collect their bill and to permit the bill to accumulate without enforcing reasonable regulations and employing ordinary business precautions should not be cast upon the new owner, who did not contract the bill or use the water and therefore, should not be required to pay for it, Bellevue Borough v. Ohio Valley Water Company, 245 Pa. 114.

The Court recognizes that the City is faced with the problem of having many small accounts, but it must be remembered that the general public has no choice but to use the services offered by the City.

The contention of the City that it must always have an absolute right to payment in every instance and for all water supplied is contradicted by all the cases and texts. The City runs its water department in so far as the general public is concerned as a proprietary business and not as a governmental function, McQuillen v. Municipal Corporations, Vol. 8, No. 53.103 and Etheredge v. City of Norfolk, supra, and Rockford Savings & Loan Association v. City of Rockford, supra.

Ip coming to its decision in this matter, the Court is well aware of the four annotations on this subject found at 13 A. L. R. 346, 28 A. Li R. 472, 55 A. L. R. 789 and 26 A. L. R. (2d), 1359 and has read many of the cases cited therein. It recognizes the general rule is:

“The right of a municipal corporation or water company to compel a property owner to pay for water furnished to a former owner seems to depend on the existence of a lien against the property. In the absence of such an agreement, the water company is not allowed to enforce the contract obligation of one person against another who has not in any way assumed it, except where the water is actually turned off at the time of the purchase, so that the new owner may obtain .an adjustment of the equities before he pays the purchase price for the property.
“So, a municipal corporation cannot, without statutory authority, compel the purchaser of property to pay rent for water consumed by his vendor, as a condition to furnishing his building a supply from its water system.” (See 13 A. L. R. 349.)

Further it recognizes the claimed exception:

“If, however, the water has actually been turned off for default of the land owner, a successor in title cannot require it to be turned on again without the settlement of the arrearages, it being held that his remedy is against his grantor for indemnity for the amount due.” (See 13 A. L. R. 350-351.)

Many of the cases under this claimed exception are not in point and the Court was unable to find in any of these cases any discussion of the constitutional limitations and in fact in the one case closest on point the Court said that counsel for the complainant did not in any way attack the constitutionality of the legislation, see Hoe v. City of Orange, 70 N. J. Eq. 648, 62 A. 2d, 777. In the instant case the claimant does attack the constitutionality of the ordinances as applied.

Many of the cases dealing with land purchased at a sheriff’s sale seem to arise in Pennsylvania. The first of the series of cases is the case of Girard Life Insurance Company v. City of Philadelphia, 88 Penn. 393, there the court held that the payments of all the arrearage due on the water bill would be collected before the rights acquired at the sheriff’s sale could be enforced by the purchaser. After this holding there seems to be a deviation in theory and in Beaver Valley Water Company v. Public Service Commission, 70 Penn. Sup. Ct., 621, the Court held that public utilities could adopt reasonable regulations, but that “the rule of a water company requiring arrearages of water rents for service to the former owner to be paid by the successor of title as a condition precedent to service, is an unreasonable rule.” The same thinking was followed in the case of Tyrone Gas & Water Company v. The Public Service Commission, 77 Penn. Sup. Ct. 292. It, therefore, appears that in Pennsylvania even though the fact pattern remained the same, namely, in a purchase at sheriff’s sale, there has been a change in the legal conclusion as the earlier cases found reasonable the requirement that the water bill of the former owner be paid while later the courts held that a determination by the Public Utilities Commission that such a requirement was unreasonable was a valid determination.

One of the latest cases on this subject is Higley v. City of Sacramento, 149 F. Sup. 118. This case is .of particular interest because there, as here, the municipality was under “home rule.” Even so the court followed the theory in the case of Etheredge v. City of Norfolk, supra, and held:

“In order to justify making owner of real property liable for unpaid water bills of former owner, unpaid water charges must be considered by some theory to be a lien on real property, thereby causing obligation to follow ownership of land.”

In addition to the above authorities, there is the article on “Methods Of Enforcing Payment Of Water And Sewage Charges” in 12 O. S. L. J. 256, wherein the author gives a scholarly analysis of the problem. Under Paragraph E, page 258 the author discusses the personal liability of the owner of premises and finds that the burden of water charges may be constitutionally imposed upon the owner but he goes on at page 560 to say: “Past service to an independent user, such as a prior owner, or one’s landlord or other tenant, is a very different matter.” The author then quotes in part from Milville Improvement Company v. Milville Water Co., 92 N. J. Eq. 480, the pertinent portions thereof follow:

“* * * in the absence of legislation creating a lien on the real estate for water service or other legislation of like effect, no person can be denied service because of delinquency of a prior owner or tenant.”

The author in the above article concludes that if there was a statutory lien for water service charges then a new owner or a purchaser at land sale, etc., will be liable for the water charges, but if there is no lien provision then he will not. And it should be recalled that in the Pfau case, supra, the Supreme Court held that a lien will not attach to property under authority of the type of ordinances here relied upon, see 9 O. S. L. J. 154.

Municipalities under the home rule provisions have acquired considerable power and there is no doubt under the Pfau case, supra, that in Ohio the municipality may impose upon the property owner the liability to pay the tenant’s water bill, but this court is of the opinion that the ordinances sought to be enforced in this case as against a new owner of Torrenized land are not constitutional and further, that they are contrary to the registration of land titles under Chapter 53 R. C., and therefore, orders that a permanent mandatory injunction should issue requiring the City of Cleveland to provide water service for the new owner of the property so long as he pays any service charges incurred either by himself or by his tenants during his ownership.

The plaintiff is directed to draw a journal entry in conformity with the above. O. S. J.