text:
    SQUIRE, Supt. of Banks, v. GUARDIAN TRUST CO. et al.
    Common Pleas Court, Cuyahoga County.
    No. 438880.
    Decided May 18, 1945.
    Hugh S. Jenkins, Atty. Geni., Columbus, Davis & Young, Krueger, Gorman & Davis, Cleveland, for appellant.
    Thompson, Hiñe & Flory, Cleveland, for appellees R. H. Bishop, Jr., O. W. Prescott, A. L. Stone, and G. G. Wade.
    Jones, Day, Cockley & Reavis, Cleveland, for appellee William G. Mather.
    Squire, Sanders & Dempsey, Cleveland, for appellees Dean, Gill, McIntosh, Patterson, Petrequin, Rossiter and Whelan.
    Baker, Hostetler & Patterson, Dorn & Merry, Cleveland, for appellee Edward S. Rogers.
    Garfield, Baldwin, Jamison, Hope & Ulrich, Cleveland, for appellee Tillotson.
    Grossman, Carter, Hamilton & Rosenman, Cleveland, for appellee Marc J. Grossman, executor of Louis J. Grossman.
    Clinton Dewitt, Cleveland, for appellee Brooks.
    Roscoe M. Ewing, Cleveland, for appellees Robinson and Edgar- D. Rogers.
    Frank H. Pelton, Cleveland, for appellees House and Monks.
    Andrews, Hadden <& Putnam, Cleveland, for appellee Hanna.
    Boyd, Brooks & Wickham, Cleveland, for appellee Dale.
    McKeehan, Merrick, Arter & Stewart, Cleveland, for appellee Eide.
    W. Edmund Peters, Cleveland, for appellee Bowman.
    Henry H. Pleasant, Cleveland, for appellee Kline.
   OPINION

By McNAMEE, J.

This is the second series of motions attacking the fourth amended petition which have been filed by defendants, A. W. Dean, L. C. Hanna, Jr., and H. P. McIntosh, Jr. In January, 1943, these three defendants, together with defendant Edward A. Petrequin, filed motions asking that the fourth amended petition be stricken because of plaintiff’s alleged failure to comply with previous orders of the court. This request was granted on March 3, 1943, at which time the court also dismissed the action.

On February 16, 1944, 66 N. E. 2d 651, the Court of Appeals reversed the Common Pleas Court’s judgment of March 3, 1943. After an unsuccessful attempt to secure a review of the Court of Appeals’ decision in the Supreme Court, 143 Oh St. 515, 55 N. E. 2d 805; 144 Oh St 266, 58 N. E. 2d 651, these moving defendants, pursuant to leave of court, filed the above styled motions.

Although represented by the same counsel as the parties to this motion, defendant Edward A. Petrequin did not join therein but filed a demurrer attacking the sufficiency of the fourth amended petition upon several grounds.

The original petition was filed December 30, 1935. It is 38 pages in length and contains but one cause of action. Motions to separately state and number and to make the original petition definite and certain, filed by these and other defendants, were granted in 1937. At the same- time motions to strike out parts of the original petition were overruled.

Subsequently, upon motions filed by various defendants the amended, second amended, third amended and fourth amended petitions were stricken from the files.

In reviewing this court’s action in striking the fourth amended petition from the files, the Court of Appeals said:

“In view of the manifold objections to the form of the petition and the general and indefinite terms of the order sustaining the objections, it would have been impossible for anyone to assert with any confidence that any given amended pleading would comply with the requirements of the court. The progressive increase in the length of the pleadings is mute e.vidence of the plaintiff’s vain struggle to comply.” (Emphasis ours.) (Pages 37 and 38 Compilation of Entries.)

In explanation of the foregoing statement of the Appellate Court it should be noted that the amended petition contained 15 causes of action. The second amended petition was subdivided into 60 causes of action, the third amended petition included 61 causes and the fourth amended petition sets forth 97 separately stated and consecutively numbered causes of action.

There can be no doubt that the plaintiff has endeavored in good faith to comply with the previous orders of this court and has attempted to meet and obviate the multifarious objections to his pleadings which have been made by these and other defendants. In his efforts to segregate and enumerate the several causes of action and to make his pleading definite and certain plaintiff has elaborated his statement to the point of extending the fourth amended petition to the unprecedented length of 380 pages. Surely he ought not to be required further to increase the dimensions of this enormous pleading unless the ends of justice imperatively demand it.

The fourth amended petition is not a model pleading. It requires no microscopic examination to discover defects therein, but under the handicap of orders heretofore made, that were indefinite and general in nature, plaintiff has accomplished a substantial improvement in his statement of the case. The fourth amended petition specifies and enumerates the principal transactions upon which the several causes of action are predicated and sets forth definitely and in detail the factual bases of the several complaints. That it could be improved further is not open to argument but an atomization and extension of it, as sought by defendants’ motions, is not the corrective to be prescribed at this belated hour.

Criticism of the redundant and inconsistent conclusory statements in the closing paragraphs of many of the causes of action is well taken. The profusion of descriptive phrases characterizing defendants’ alleged conduct is for the most part unnecessary. It does not appear, however, that the proper remedy is to require plaintiff to subdivide the several causes of action stated in the fourth amended petition into additional causes each based upon the constituent elements of this redundant phraseology.

Defendants read into these conclusions, causes of action for “deceit” based upon the alleged misleading system of bookkeeping and misleading reports. The Court is unable to find such causes of action stated.

There are no averments that the Superintendent of Banks, the creditors or stockholders relied upon such a “system” or on such “reports” to his or their injury or damage. The allegations in the inducement with respect to the alleged misleading system of bookkeeping and misleading reports may or may not be relevant to the ultimate facts upon which the various causes of action are based, but they do not allege a cause founded upon “deceit.” This fact is conceded by plaintiff in his brief in opposition to the demurrer of defendant Petrequin, wherein he said:

“This neglect would make it difficult to answer in short ■compass the claim of the defendant, were it not for the fact that no Cause of Action is brought for ‘damages for deceit of’ anyone.” (Plaintiff’s brief in opposition to demurrer, page 4.)

The Court of Appeals in its opinion at page 42 of the “Compilation of Certain Entries” quoted paragraph 23 of the first cause of action, which contains these conclusory statements, and then observed:

“Can it be doubted that if the plaintiff is able to prove that this loss resulted from such conduct a cause of action exists in favor of the stockholders, creditors and depositors of this bank? The answer to this question seems obvious. A,cause of action is clearly stated.” (Page 43 of “Compilation of Entries.”)

Manifestly, the Court of Appeals understood the language complained of as embracing but one cause of action.

The request to strike out parts of the fourth amended petition is the first application of this character made by these moving defendants since 1937. After Judge Hurd overruled the original motion to strike out, Ohio Com. Pl., 2 Ohio Supp. 152, these defendants, in filing motions attacking prior amended petitions, made no application to strike out parts thereof, although such former pleadings contain language similar to or indentical with the language sought to be stricken by the present motions.

Defendants therefore cannot be heard on these requests at this late date. If these requests were considered, however, the Court is of the opinion that the correct guide to proper judicial action is to be found in the statement appearing in 31 O. Jur., page 904, Section 304:

“If, therefore, a pleading as it stands is not obscure, no good will be accomplished in striking out statements that appear to be redundant; in other words, it cannot be prejudicial to refuse to strike out redundant and irrelevant matters if they in no way embarrass the objecting party in sustaining his claim or making his defense. Likewise, the motion should be overruled if the allegation complained of might become material on the trial of the case.”

Again, and with special reference to the request to strike entire causes of action, the following statement from 31 O. Jur., page 903, Section 304, is pertinent:

“* * * if the purpose of the motion is to strike out the entire defense, or claim, it is taking the place of a demurrer, a practice that ought not to be permitted.”

With respect to the application to make definite and certain, the Court is of the opinion that the allegations of the fourth amended petition apprize the defendants of the nature of the charges against them with sufficient clarity to justify the overruling of these requests. Whether plaintiff alleges causes of action ex delicto or ex contractu— whether causes of action are stated — what statute of limitations applies, these and other important legal questions, should be presented and decided at the earliest possible date in appropriate proceedings for such purposes. This case has been pending for an inordinate length of time. All counsel, I am sure, will concur in the view that the little progress made towards its determination constitutes a serious indictment of the efficiency of our judicial system. The Court is no less concerned for the rights of all parties to this lawsuit than the lawyers who represent the plaintiff and all of the defendants, but the Court is also mindful of the imperative constitutional mandate to administer justice without denial or delay.

For the foregoing reasons the motions of the defendants will be overruled as to all requests. Exceptions noted.


source: Caselaw Access Project

author: By MILLER, PJ.

license: Public Domain

text:
    TULLY, Extrx., Plaintiff-Appellant, v. TURNER, Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 4226.
    Decided December 8, 1949.
    Marion A. Ross, Columbus, for plaintiff-appellant.
    F. Stanley. Crooks, W. F. Laird, of Counsel, Columbus, for defendant-appellee.
   OPINION

By MILLER, PJ.

This is a motion submitted by the defendant-appellee seeking an order dismissing the appeal upon questions of law and fact and retaining the cause for hearing on questions of law only for the following reasons:

(1) No appeal bond has been filed by the plaintiff-appellant as required by §12223-6 GC.

(2) No bond was given in the Probate Court of Franklin County, Ohio, by the plaintiff-appellant as executrix of the estate of Elizabeth A. Maley, deceased, and she is therefore not entitled to exemption from the filing bond under §12223-12 GC.

Sec. 12223-6 GC provides that except as provided in §12223-12 GC no appeal shall be effective as an appeal upon questions of law and fact unless an appeal bond be filed within the time that the notice of appeal is required to be filed. The exception applicable in §12223-12 GC provides that executors shall not be required to give the bond mentioned in §12223-9 GC who have given bond in this state, with surety according to law.

The record discloses that no appeal bond was filed within the statutory time and that no bond was given by the appellant as executrix in the Probate Court. The phrase “according to law” appearing in paragraph (a) of §12223-12 GC applies only to the word “surety” immediately preceding. In re Stevenson, 79 Oh Ap 413. Since no bond was given in the Probate Court the appellant does not bring herself within the exemptions enumerated in the statute.

In the case of Dennison, et al. v. Talmage, et al., 29 Oh St 433, in interpreting a similar statute the court held:

Syllabus 1. “Executors or administrators, whether appointed in this state or elsewhere, who have not given bond in this state, with sureties, agreeably to law, and who were original parties to the action, are not authorized to prosecute an appeal from the court of common pleas to the district court, without giving an appeal bond or undertaking.”

Where the appellant fails to file an appeal bond as required by §12223-6 GC, the appeal on questions of law and fact will be dismissed. Kohler v. Sears, Roebuck & Company, 84 Oh Ap 98; Nickerson v. Nickerson, 84 Oh Ap 99.

The motion will be sustained and the appellant will be granted leave to file bill of exceptions, assignment of errors and brief within the time prescribed by supplement to Rule VII of this court.

HORNBECK and WISEMAN, JJ, concur.

ON APPELLANT’S LAW APPEAL

No. 4226. Decided September 19, 1950.

Marion A. Ross, Columbus, for plaintiff-appellee.

P. Stanley Crooks, Columbus, for defendant-appellant.

OPINION

By THE COURT.

Three errors are assigned on appellant’s law appeal. Judge Leach who tried the case, considered and discussed the subject matter of the assigned errors and with his conclusions and reasons stated therefor, as found in his opinion, we agree. It would serve no good purpose to discuss the assignments because we do not believe they present any difficult or unusual questions of law.

We are satisfied that no error intervened in the trial of the cause to the prejudice of the appellant in any of the particulars relied upon in this Court.

The judgment will be affirmed.

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


author: By DOYLE, J:

text:
    SCHREIBER, Plaintiff-appellant, v. NATIONAL SMELTING COMPANY, Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 21844.
    Decided July 24, 1950.
    Krueger, Gorman & Davis, Cleveland, for plaintiff-appellant.
    Davis & Young, Cleveland, for defendant-appellee.
    (HUNSICKER, PJ, DOYLE, J, of 9th District: FESS, J, of 6th District sitting by designation in 8th District.)
   OPINION

By DOYLE, J:

Sophie Schreiber was injured in a collision between an automobile in which she was riding as a passenger, and a stationary motor truck which was either parked on the pub-lie highway or parked in a driveway with a part of it extending into the highway. She thereupon instituted suit against The National Smelting Co., the owner and operator of the truck, in which she sought damages for personal injury claimed to have • proximately resulted from the negligent conduct of the defendant in its operation and parking of the vehicle.

The answer of the defendant “admits that at about the time mentioned an automobile in which the plaintiff was riding came in contact with an automobile truck owned by this defendant. Further answering, defendant denies each and every allegation in plaintiff’s second amended petition contained not herein expressly admitted to be true. Wherefore, having fully answered defendant prays that it may go hence with its costs.”

Judgment for the defendant was entered upon the verdict of a jury, and, following the overruling of a motion for a new trial, appeal was perfected by the injured lady to this court on questions of law.

Among the various assignments of error urged by the appellant, attention will be directed first to the claim of error in the court’s instructions to the jury, and especially to that part of the charge which pertained to the question of “sole negligence of a third person — not a party in the litigation (the driver of the car in which the plaintiff was riding).”

The court in part instructed the jury as.follows:

“At the time of this collision, the ordinances of course, which I have read to you, were in full force and effect, and those which I indicated that you should consider. If the defendant, through its agent in charge of the truck, or its agents in charge of the truck * * * violated the terms of either one of those ordinances, that would be negligence. Likewise there was a law of the State of Ohio in force, commonly known as the assured clear distance. That is, one must so control, and operate his automobile that he may bring the automobile to a stop within the assured clear distance ahead; that is, any discernible object being in his path, he must so control and operate the automobile so that it can be brought to a stop within the assured clear distance. That law was in full force and effect, and I say to you that the driver of the car in which plaintiff was riding violated that law and was guilty of negligence. However, in the State of Ohio, we do not have the doctrine of imputed negligence. So that any negligence — the negligence upon the part of the driver of the car — in which she was riding would not be imputed to her — and his negligence would not be imputed to her. She was riding as a passenger in the car. I said to you a moment ago that the driver of the car in which she was riding was guilty of negligence, and if you find by a preponderance of the evidence that that negligence was the sole cause of this collision, this plaintiff cannot recover in this action. If, however, on the other hand, she has proven defendant was guilty of negligence, and that the negligence upon the part of defendant either directly and proximateiy caused the collision, or directly and proximateiy contributed to cause the collision, then she is entitled to recover in this action. And those are the issues for you to determine, and those are the important issues.”

As must be observed from reading the above charge, the trial court injected into the trial an improper issue. The negligence of the driver of the car in which the plaintiff was riding, or his driving of the car in such a manner so as to be unable to stop it within the assured clear distance ahead, in violation of a statute of this state, did not create an issue for the consideration of the jury. The sole issues in the case were whether the defendant was guilty of negligence in the handling of its truck at the time and place and, if so, whether such negligent conduct was a proximate cause of the plaintiff’s injuries.

Under our jury system, the primary purpose of instructions is to inform the jury, as triers of the facts, which issues are to be decided to reach each possible verdict. Statements of abstract legal propositions do not make proper instructions. Each instruction to the jury authorizing the finding of a verdict for the plaintiff, or for the defendant on an affirmative defense, must require the finding of all essential fact issues necessary to establish the legal proposition upon which the right to it is based. Because the plaintiff has the burden of proof to establish every fact necessary to a verdict in his favor, defense instructions may be properly given which authorize a defendant’s verdict upon a converse finding on any fact issues essential to a verdict for the plaintiff.

However, defense instructions are highly improper and usually prejudicial when they inject a “foreign issue” into the case, based upon the conduct of one not a party.

This question has been before the Court of Appeals of Lucas County on several occasions. In Leopold v. Williams, 54 Oh Ap 540 it was held:

“7. An allegation that the plaintiff’s injury and damage were caused ‘soiely’ by his own negligence or that of a third person, raises an immaterial issue and should not be injected into the case, either by pleadings or charge of the court.”

Similar statements appear in Hatsio v. Red Cab Co., 77 Oh Ap 301; Schwab v. Keeler, 81 Oh Ap 291; and DeHart Admx. v. Ohio Fuel & Gas Co. 84 Oh Ap 62.

It is our conclusion that the charge as given tended to confuse the questions properly in the case and was misleading to the jury; all to the prejudice of the appellant.

2 O. Jur. (revised) Appellate Review, Sec. 762, p. 1450 and cases therein cited; Pearlstein v. McGregor Home et al 79 Oh Ap 526; Nardi v. Reliable Trucking Co. 85 Oh Ap 122.

Examination has been made of the other claimed errors and we find them not to be prejudicial in character.

Judgment reversed and cause remanded.

HUNSICKER, PJ, FESS, J, concur.


author: By MILLER, PJ. By THE COURT:

text:
    LOMBARD, Estate of, In re. KIMMEL, Exceptor-Appellant, v. DOTY, Exceptor (Executor)-Appellee.
    Ohio Appeals, Second District, Madison County.
    No. 173.
    Decided September 7, 1950.

      Gerald A. Baynes, London, for exceptor-appellant.
    Boyd P. Doty, Westerville, Lucas & Lucas, Columbus, for executor-appellee.
   OPINION

By MILLER, PJ.

This is a law appeal from a judgment of the Probate Court overruling the appellant’s exceptions to the inventory and appraisement filed in the estate of Mary S. Lombard which states that there are no persons to whom notice of the filing of the same need be given.

The record discloses that Eli E. Kimmel, the exceptor and appellant, and Mary S. Lombard had been married, but at the time of her death the parties were divorced, the decree having been granted upon the petition of the deceased by the Court of Common Pleas for Franklin County, Ohio. It is the validity of this divorce decree that requires our attention. A photostatic copy was submitted in evidence upon an agreed statement of facts and constitutes the entire record. The petition therein recites that the address of the defendant, Eli E. Kimmel, is Los Angeles, California. The pertinent part of the decree recites:

“This day came the plaintiff, and the defendant having been legally summoned by publication and having failed to appear, the Court finds the defendant, Eli Kimmel, in default for answer and demurrer to said petition and that the allegations thereof are by him confessed to be true.”

It is the contention of the appellant that the decree is void because of a defect in the service of summons which was had by publication. The affidavit for service by publication which is claimed to be defective is as follows:

“Mary Kimmel, being first duly sworn, says that she is the plaintiff in the above entitled action; that service of summons cannot be made on the defendant within this state; that the last known residence of the defendant, Eli Kimmel, is the city of Los Angeles, California, and that this cause is one for divorce.”

The appellant urges that the above affidavit is insufficient in that it does not state that the defendant is a nonresident of the State of Ohio. We concede that this requirement must be met in order to have a valid service. Sec. 11984 GC provides:

“If the defendant is not a resident of this state or his residence is unknown, notice of the pendency of the action must be given by publication as in other cases. Unless it be made to appear to the court, by affidavit or otherwise, that his residence is unknown to the plaintiff, and could not with reasonable diligence be ascertained, a summons and copy of the petition, forthwith on the filing of it, shall be deposited in the post office, directed to the defendant at his place of residence.”

The requirement for the affidavit necessary for service by publication is set forth in §11293 GC as follows:

“Before service by publication can be made, an affidavit must be filed that service of summons cannot be made within, this state on the defendant sought to be served, and that the case is one of those mentioned in the next preceding section.

In the case of Reed v. Reed, 121 Oh St 188, p. 192, the Court says:

“While §11292 GC, which provides in what cases service shah be given by publication, does not specifically mention divorce and alimony cases, this enactment in §11984 GC places divorce and alimony actions among the list of those in which service by publication is expressly provided for.”

Therefore the requirements of §11293 GC include also that, the affidavit meet the requirements of §11984 GC.

In Beachler, et al., v. Ford, et al., 42 Abs 609, at p. 619 the Court said:

“Substituted service and service by publication was unknown to the common law but depends upon statutory authorization, and the principle of statutory construction that there must be strict compliance with enactments modifying the course of common law in regard to legal proceedings is exemplified in the cases involving the construction and applications of provisions authorizing substituted and constructive service. When, by the local law, substituted or constructive service is in certain situations substituted in the place of personal service when the latter is inconvenient or impossible, a strict and literal compliance with the provisions of the law must be shown in order to support the judgment based on such substituted or constructive service. Jurisdiction is not to be assumed and exercised on the general ground that the subject matter of the suit is within the power of the court. The inquiry must be as to whether the requisites of the statute have been complied with, and such compliance must appear on the record. The fact that the defendant had actual knowledge of attempted service does not render the service effectual if in fact the process was not served in accordance with the requirements of the statute.”

See also 32 O. Jur., 457, Sec. 67.

We cannot, however, agree with the appellant in his construction of the language in the affidavit. It is true it does not expressly say that the defendant is not a resident of Ohio, but it is not silent on the question of residence as it states that the defendant is a resident of Los Angeles, California. Since a person can have only one legal residence, if the defendant is a resident of California it must logically follow that he is not and cannot be a resident of Ohio. It is therefore our conclusion that the affidavit is sufficient to authorize the service by publication.

The next question presented is whether or not the other requirements of §11984 GC were met in order to obtain a valid service by publication. The appearance docket in the divorce action sets forth the following:

“1938 Nov. 5 Petition filed Copy $1.00
“1938 Nov. 5 Affidavit for publication filed
“1938 Nov. 5 Received one Marked copy of Daily Reporter under date of 11-7 1938 wrapped addressed which I mailed postage prepaid to
Eli Kimmel Los Angeles California
J. Arthur Yoder, Clerk
By S. H. Gibbons, Deputy
“1938 Dec. 12 Proof of Pub. by D. Rep. filed
“1939 Jan. 13 Publication Entry approved Rose”

It will be noted that the record is silent on the question of whether or not a summons and copy of the petition were mailed to this appellant in compliance with §11984 GC, but the judgment entry provides that the defendant was “legally summoned by publication” and failed to appear. The appellant contends that the Court of Common Pleas in this-divorce action was acting under a special or limited jurisdiction and was not acting as a court of general jurisdiction and therefore the judgment entry is not controlling on the jurisdictional question. The appellant’s contention as to the law applicable to a court of limited jurisdiction is supported by abundant authority, but we find that its conclusion that the court was not exercising its general jurisdiction is contrary to all of the reported cases we have been able to find in this state. Only recently our Supreme Court expressed itself on this subject in the case of State, ex rel. Miller v. Court of Common Pleas, 151 Oh St 397. The decision here involved a proceeding in prohibition to prevent a Court of Common Pleas from entertaining a divorce action. Although the question of process was not involved the nature of the court’s-jurisdiction was definitely at issue. The opinion states at p. 401:

“The Common Pleas Court of Lake County, being a court of general jurisdiction and having jurisdiction of the subject matter in a divorce action, has authority to pass upon and determine its own jurisdiction in the particular divorce action before it after considering all the issues which may be made by such an answer. * * *
“This court has held that ‘where general jurisdiction of the subject matter of an action or proceeding has been conferred upon the Court of Common Pleas by statute, a writ of prohibition will not issue denying that court the right to determine its own jurisdiction.’ State, ex rel. Levy, v. Savord, 143 Oh St, 451, 55 N. E. (2d), 735. See, also, State, ex rel. Cleveland Telephone Co. v. Court of Common Pleas of Cuyahoga County, 98 Oh St, 164, 120 N. E. 335.
“Since the Lake County Common Pleas Court has authority to determine its own jurisdiction and since the relatrix may have an appeal from any adverse finding of that Court as to its jurisdiction, she is not entitled to the extraordinary writ of prohibition.”

The case of Hudson, Admr., v. Owens, 28 O. L. R. 221, involved a collateral attack upon the divorce proceeding. The Court makes the following statement at p. 225:

“Now it is argued that the proposition that we are laying down would be true in a court of general jurisdiction, but that a court that has jurisdiction over divorce is not a court of general jurisdiction. In other words, in a court of general jurisdiction it is presumed that the court acted regularly, whereas in a court of limited jurisdiction the party claiming the benefit from the judgment of such court would have to prove that it had jurisdiction by taking all the steps which were necessary. Let us concede that to be the law. But how long since has the common pleas court of this state not been a court of general jurisdiction? In fact it is the only court in Ohio that has general jurisdiction. It has jurisdiction from one hundred dollars up to any amount, from misdemeanors to the grossest felonies, and it has jurisdiction in alimony and in divorce cases, and always has had since the inception of the court, and the right giving it general jurisdiction has been carried into the constitution of Ohio, and if there ever was a court of general jurisdiction, the common pleas court of Ohio is that court. Therefore, it must be assumed that the court acted regularly.”

And continuing on page 226, it is said:

“Nowhere can you attack a judgment rendered by a court of general jurisdiction, that is regular on its face, by a collateral attack where the court has jurisdiction over the subject matter and where the decree of the court recites that proper service has been made. Such a procedure would unsettle our law entirely and would be contrary to public policy. There is ample provision made in our statutes for attacking a judgment that has been obtained by fraud or in which there has not been proper service or whatever might be a ground for setting aside that judgment, if it is brought in time.”

See also Rea v. Fornan, et al., 37 Abs 135; Knapman v. Ford, 33 Abs 477.

The appellant cites the case of In re Estate of Frankenberg, 60 Oh Ap 495, in which a successful collateral attack was made upon a divorce decree, but the facts there are not on all fours with the case at bar. Here the defect in the service appears upon the record, while it does not in the instant case. The law is well stated in syllabus 3 of the Frankenberg case, supra, as follows:

“The presumption, upon collateral attack, in favor of due service of process or giving notice by domestic courts of general jurisdiction cannot prevail where it affirmatively appears from the record that the court never had jurisdiction of the person of the defendant.”

It is our conclusion that the finding of the trial court that it had jurisdiction must control since it had jurisdiction of the subject of the action and of the parties by its own decree and nothing appears in the record to indicate a want of jurisdiction. We find no merit in the appellant’s contention that the decree of divorce violates any of his property rights under either the laws of this state or the federal Constitution. It makes no disposition of any property but merely dissolves the marital relationship and releases both parties from the same.

We find no error in the record and the judgment is affirmed.

HORNBECK and WISEMAN, JJ, concur.

ON MOTION TO CERTIFY

No. 173. Decided October 6, 1950.

By THE COURT:

This is a motion to certify this case as being in conflict with Ready v. Ready, 25 Oh Ap 432. The motion will be overruled as we have heretofore distinguished these two cases.

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

ON MOTION FOR REHEARING

No. 173. Decided October 6, 1950.

By THE COURT:

This is a motion seeking a rehearing for the following reasons:

(1) Failure to pass upon the third assignment of error.

(2) Error of law in finding that the affidavit in the divorce case was sufficient.

Although we held in the case of Nickerson v. Nickerson, 85 Oh Ap, 372, that our rules make no provision for the filing of an application for a rehearing, we have made a further examination of the record in this case and find that all of the assignments of error were passed upon. The third assignment of error was that the divorce court passed upon the appellant’s property rights, which we found was not supported by the record. We stated, “We find no merit in the appellant’s contention that the decree of divorce violates any of his property rights under either the laws of this state or the Federal Constitution. It makes no disposition of any property but merely dissolves the marital relationship and releases both parties from the same.” This assignment was again passed upon when we made the general finding that we found no error in the record, which included the third assignment.

As to the second ground of the motion, the affidavit in the divorce action differed from the one in the case of Beachler v. Ford, 77 Oh Ap 41, in that it specifically stated “that service of summons cannot be made on the defendant within this state.” The affidavit in the Beachler case, supra, stated the reason that the service of summons could not be made in this state which was insufficient, as a matter of law, to warrant such a conclusion. The two cases are therefore not parallel.

The application will be denied.

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


author: By PHILLIPS, PJ.

text:
    POLANDO, Plaintiff-Appellant, v. VIZZINI, d. b. a. DeLUXE CAFE, Defendant-Appellee.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3302.
    Decided November 7, 1949.

      Carlyle & Carlyle, Regis W. Gilboy, Youngstown, for plaintiff-appellant.
    William E. Pfau, Youngstown, for defendant-appellee.
   OPINION

By PHILLIPS, PJ.

In this opinion the parties will be referred to as they stood in the court of common pleas.

Plaintiff was seated in defendant’s cafe, situated in Youngstown, Ohio, to which he, together with the general public, had been invited by defendant, and where he was a paid patron at the time defendant’s manager and barkeeper asked him to hold the door while he forcibly ejected another patron, called ejected patron, hereafter, who used loud, vulgar, boisterous and profane language therein, and objected to the music that was being played on a “juke box,” furnished by defendant for the amusement and entertainment of his patrons, which ejected patron disconnected with such force and violence that he broke it rendering it unusable.

In his petition filed in the court of common pleas plaintiff charged defendant with “negligent, careless and wrongful conduct in causing and precipitating an altercation and fight with a customer as aforesaid”; and “forcibly and physically attacking said customer before said customer had a reasonable opportunity to leave said premises”; in “failing and neglecting to provide police, guards or other means of protection for the protection and safety of customers and invitees”; and “in failing and neglecting to call upon police, or other duly constituted police authorities, to eject, arrest or otherwise deal with said customer” when defendant “knew, or in the exercise of ordinary care should have known, that his acts, or failure to act, was likely to and would result in injury to other customers, and particularly this plaintiff as aforesaid.”

The trial judge overruled defendant’s demurrer to plaintiff’s petition; but sustained his motion for, and directed the jury to return a verdict for him at the close of plaintiff’s case upon authority “of the other cases and citations in the briefs of counsel filed on demurrer” and Shayne v. Coliseum Building Corp., 270 Illinois Appellate Court Reports 547, in which it is said:—

“The test is whether the party guilty of the first act or omission might reasonably have anticipated the intervening cause as a natural and probable consequence of his own negligence, and if so, the connection is not broken; but if the act of the third person which is the immediate cause of the injury is such as in the exercise of reasonable diligence would not be anticipated and the third person is not under the control of the one guilty of the first act or omission, the connection is broken and the first act or omission is not the proximate cause of the injury.”

Plaintiff appealed to this court from the judgment of the trial court on questions of law, and contends that the trial judge erred to his prejudice “in determining as a matter of law that plaintiff was not entitled to recover under the law and the facts”; and deprived him of his constitutional right of trial by jury by directing the jury to return a verdict against him.

The evidence discloses that before he took the ejected patron by the arm and started to escort him to the door defendant’s bartender twice requested such ejected patron to leave the tavern peaceably; that enroute to the door the ejected patron became unruly, although he said if the bartender would let him alone he would leave peaceably; that the bartender realized that he had an unruly customer “on his hands,” although there was nothing about him at any time that caused him to suspicion that he carried a gun; that he determined he could not handle such ejected patron and open the door at the same time, and that accordingly he asked plaintiff to open the door; that during the scuffle that ensued between defendant’s bartender and the ejected patron, and while plaintiff was holding the door open, the ejected patron fired three shots from a pistol or revolver, one of which struck plaintiff in the abdomen causing him severe and permanent personal injury.

There is no evidence in the bill of exceptions submitted to us for review to support the allegation of plaintiff’s petition that defendant’s bartender precipitated an altercation and fight with such ejected patron; nor that he forcibly and physically attacked him before he had a reasonable opportunity to leave defendant’s tavern, nor at any other time; and nothing indicating to us the necessity for calling police officers to eject, arrest or otherwise deal with such patron at the time he started to escort him to the door.

It is settled , law that defendant had the right to invite to or eject patrons from his cafe, in which he had a definite property right and the legal right to control.

We find no law imposing upon defendant the duty or responsibility to employ private guards to maintain peace therein (4 Am. Jur. page 167, Assault and Battery, paragraph 76); nor that compelled him, under the facts in this case, to call the police before the ejected patron shot plaintiff. Defendant’s manager, or bartender, was acting within his right and the law in peaceably requesting the patron, whom he later ejected because “he put up kind of a fuss,” to leave such cafe, and when the ejected patron did not comply with such request he had the right to use such force as was necessary to eject him. While he could use only reasonable force, nevertheless the supreme court has held that he would be “justified in using such force as was necessary to eject the plaintiff from” his cafe, “and the law does not closely or nicely measure the force which the defendant used to effect that purpose.” See Crouch v. Ringer, (Wash.) 188 Pac. 782; 9 A. L. R., 374 at 379; 33 A. L. R. 421; 3 O. Jur., page 216; Hammond v. Ray, 50 Oh Ap 47, 197 N. E. 502; Armuleuis v. Koblitz, 114 Oh St 73, 150 N. E. 620.

As the result of careful study of the evidence submitted to us in the bill of exceptions, which it is not necessary to state further, we are of opinion that defendant’s bartender did not use unreasonable nor more force than was necessary to accomplish the purpose of ejecting such patron, as plaintiff’s counsel contends.

Viewing the evidence in its entirety we believe it supports our conclusion that such shooting of plaintiff by the ejected patron was an act not intended by defendant’s bartender, nor one he could have reasonably foreseen, nor was bound to anticipate, and for which neither defendant, nor his manager, were legally responsible.

We are of opinion that plaintiff failed to sustain the allegations of his petition, which the trial judge permitted him to amend to conform to the evidence, and that accordingly the trial judge did not err to his prejudice in any of the respects urged by him in his appeal to this court.

Appellant’s counsel has failed to call our attention to “other errors manifest from the face of the record” as alleged as a ground of error; nor to comply in respect thereto with the provisions of Rule VII of this court that his briefs “shall contain a statement of the questions presented and a succinct statement of so much of the cause, referring to the pages of the record, as is necessary to show how the questions arose, together with a statement of the authorities relied upon.” Accordingly we will not pass upon this assigned ground of error.

The judgment of the court of common pleas is affirmed.

NICHOLS, J, BUCKLEY, J, concur in judgment.


author: By BLYTHIN, J.

text:
    CAMPBELL et, v. HOLYOKE APARTMENTS CO.
    Common Pleas Court, Cuyahoga County.
    No. 565181.
    Decided August 8, 1950.
    Miller, Daus & Schwenger, Cleveland, for plaintiffs.
    Harry J. Dworkin, Edward S. Klein, Cleveland, for defendants.
   OPINION

By BLYTHIN, J.

This cause is now before the court on motion of plaintiffs for a new trial following a trial in which the court granted the motion of defendant for a finding and judgment in its favor at the close of testimony offered on behalf of plaintiffs.

Plaintiffs are licensed, and are associated together as real estate brokers, and by their fourth amended petition in this cause claim that defendant, a corporation, in or about December, 1943, engaged plaintiffs to find a purchaser ready, willing and able to purchase an apartment building then owned by defendant at 1520 Holyoke Avemie, East Cleveland, for $90,000 or more, and agreed to pay them the regular Real Estate Board commission in case they produced such a purchaser. They claim that in or about February, 1945, the defendant reaffirmed and renewed such employment, and that in or about the month of July, 1945, plaintiffs found a purchaser for $90,000, or more, subject to purchaser examining the inside of one or two suites in the building and bhat they promptly communicated such fact to defendant. They claim defendant refused to permit such examination, and that, as a result, the prospect lost interest and no sale was made. Plaintiffs then claim that in or about August, 1945, the defendant against renewed the employment of plaintiffs and. that on that occasion plaintiffs waived any claim they had or might have for the previous prospective sale and that the defendant gave them the exclusive right to find a purchaser for the property and the full and fair opportunity to show all portions of the building to prospective purchasers, and, in addition, agreed to pay a commission on $90,000 of a saie price plus 50% of any amount over and above that figure if plaintiffs secured a buyer for more than the minimum listed price.

Plaintiffs claim that in November, 1945, they found a purchaser ready, able and willing to purchase the property for $95,000.00 subject to the prospective purchaser being permitted to examine the inside of one or two suites in the building and that they communicated the fact to defendant. It is claimed that defendant refused to permit the prospective purchaser to view the interior, revoked the plaintiffs’ authority to offer the property and refused to sell. Plaintiffs claim judgment for $56,000 which is the amount which would be owing on the basis of the claimed agreement and the claimed performance of its conditions by plaintiffs, if proven.

The court refused to permit plaintiffs to produce testimony tending to prove the claimed agreement or “listing” of December, 1943, and its re-affirmance in February, 1945, or any claimed performance pursuant to it. The ruling was based on the fact that plaintiffs themselves now claimed nothing under that claimed agreement or claimed services under it, and themselves pleaded it as being wholly merged or extinguished upon entry into the claimed agreement sued upon.

It is elementary that it is not the function of the court to weight the evidence adduced in support of the claim of the plaintiffs but to give it the view most favorable to the plaintiffs. It is for the jury to consider its weight unless it fails to reach them at all upon a holding that as a matter of law it is not sufficient to support the pleaded claim.

Would the testimony in support of the claim of plaintiffs, if true and undisputed, entitle them to recover?

The cause was tried on plaintiffs’ fourth amended petition. A case was pleaded on the sole theory of a listing with a broker (plaintiffs) and complete performance by the broker.

Plaintiffs say, on page-2 of fourth amended petition:

“During the month of November 1945 the plaintiffs found a purchaser who was ready, able and willing to purchase said premises for the sum of $95,000.00, subject to such purchaser’s examining the inside of one or two suites in the building, and the plaintiffs promptly communicated such fact to the defendant.”

Then follows an allegation that defendant wrongfully failed and refused to show the inside of any suites and wrongfully refused to consummate the proposed transaction, etc.

In their reply brief the plaintiffs contend that they would in any event be entitled to have their claim submitted to the jury if only on the theory that they might be entitled to recover the reasonable value of their services. The court gives that theory no consideration whatever. It was urged that the prayer of the petition does not necessarily govern in determining the relief to be afforded, and that is here and now conceded. Equally well established is it that the allegations of the petition do furnish boundaries for the relief to be -afforded. In the instant case the relief must be a commission owing for performance, if anything.

No mention is made in the fourth amended petition, nor in plaintiffs’ testimony, of listing upon terms, so the court must assume the listing to be for a sale for cash. It is well settled in Ohio that in order to entitle a broker to recover a real estate commission it is incumbent upon him to show that he has procured a prospéctive purchaser able, ready and willing to purchase on the terms offered or negotiated. He may bring his purchaser in one of two ways: (1) he may bring a signed contract or offer which the seller can accept and which he can enforce in law, or (2) he may bring the purchaser to the seller so as to enable the parties to enter into such a contract. Neither was done in this case. It is claimed by plaintiffs that defendant made complete performance by them impossible (and unnecessary) by its failure to show suites and by its indifference to the offer brought. This assumes that a prospective purchaser able, ready and willing to buy was at least found and that the sole reason for failure of a deal was the failure of the defendant.

Plaintiffs cite Hennegan v. Wiley (S. D.) 178 N. W., 294.

It will be noted that the fourth syllabus of that case holds that upon withdrawal by owner of property from the market the broker need go no further with his prospective purchaser, but:

“though to sustain finding for commission the owner’s refusal must have been the sole reason why sale did not take place.”

Plaintiffs allege in their petition, not that they are excused from performing but that they did perform. They do not assert that they failed to bring buyer and owner together because of actions of owner, but they assert they had a buyer able, ready and willing to purchase and that defendant refused to sell. The court deems the proof to fall far short of that. It is even short of proving that any prospect, “able, ready and willing to buy” even existed at all. On this latter point it is proper to again refer to the Reply Brief of plaintiffs — page 1:

“This discloses beyond peradventure of a doubt that Bertrand was willing to purchase the property subject to the then existing mortgage or in other words, to buy the equity for approximately $35,000.00 in cash.”

Again, page 7:

“Plaintiffs have never maintained that Bertram was unqualifiedly ready, able and willing. The fact is — the evidence shows — that by two specific breaches of contract, namely the refusal to show suites and the refusal to deal in 1945— the defendant made unnecessary literal compliance on the part of the plaintiffs.” (Emphasis supplied.)

The emphasized statement cannot be reconciled with the allegations of the fourth amended petition. It is a direct contradiction of them.

The above quotations together, when considered with the testimony in this cause, furnish a complete answer to the legal problem. The testimony of the plaintiffs disclosed that they had not:

(a) brought Bertram to the owner at any time. Bertram and the owners were strangers until their meeting in this litigation.

(b) secured an enforcible offer to purchase. Not an offer or agreement was ever drawn.

Coupling these facts together, and bearing in mind the listing of $90,000.00 or more — without mention of terms other than cash — this court finds it impossible to conclude that plaintiffs made a case for submission to a jury. The property of defendant had thereon a mortgage of approximately $60,000.00. There is not a word of evidence that defendant ever said it would have been willing to have its mortgage obligation remain and be assumed by others. Bertram, the claimed prospect, wanted a 15 year mortgage containing certain conditions. He testified that funds of members of his family added to his own would have been more than sufficient to purchase for cash. This is far from saying that he would actually have been able as a matter of law to command those funds — however strongly he might have thought he could — and is far from saying that he finally would have so purchased.

To support the allegations of their fourth amended, petition the plaintiffs had the burden of showing that they actually had a prospective purchaser, able, ready and willing to buy the property in question as per the listing thereof with them for sale. If they had produced such a person, and defendant then refused to proceed, their right to recover would be clear unless the assertion of some defensive matter made it necessary to submit an issue thereon to the jury for its verdict. It is not sufficient for plaintiffs to offer testimony to the effect that Bertram, in defendant's complete absence, told them he would buy the property and to offer further testimony of their own to the effect that they verbally communicated that to defendant, not even then producing their prospective purchaser or fully disclosing him to the defendant.

The court is quite convinced that testimony on behalf of plaintiffs was not sufficient in law to maintain their claim, and that the cause was properly withdrawn from the consideration of the jury. For that reason, the motion for new trial will be overruled with exceptions noted for the plaintiffs.


author: By HORNBECK, J:

text:
    DAYTON (City), Plaintiff-Appellee, v. MILLER, Defendant-Appellant.
    Ohio Appeals, Second District, Montgomery County.
    No. 2062.
    Decided April 15, 1950.
    Maurice A. Russell, City Prosecutor, Joseph P. Duffy, Asst. City Atty., Dayton, for plaintiff-appellee, The City of Dayton, Ohio.
    A. K. Meek, Dayton, for defendant-appellant, James Oliver Miller.
   OPINION

By HORNBECK, J:

This is an appeal from a judgment of the Common Pleas Court affirming the conviction and sentence of appellant on a charge of assault and battery.

In the Common Pleas Court, and here, the same errors are urged, eleven in number. In the oral presentation in this Court and in appellant’s brief, most emphasis was, and is, placed on the lack of power of the City of Dayton to enact the ordinance upon which the charge against the defendant was predicated.

It is the claim of the appellant that the offense defined in the ordinance is not properly included in the term “other similar regulations” as employed in Sec. 3, Art. XVIII, Ohio Constitution, but is an offense against the State, that “the crime of assault and battery is a crime against the person and not against- the peace and quiet of the city.”

Appellant cites City of Wellsville v. O’Connor, 14 O. C. D. 689, which held an ordinance of the City defining the offense of assault and battery to be void because the city was without authorization from any applicable statute to enact the ordinance as it was not restricted to public breaches of the peace. We express no opinion as to the soundness of this decision but observe that the authority of the City in the cited case was defined and limited by statute, and now it is enlarged and controlled by our Constitution, although applicable statutes are still to be found in the Code.

We are of opinion that the ordinance under consideration is valid upon the authority of at least four cases of our state court of last resort, Greenburg v. The City of Cleveland, Stein v. The City of Cleveland, 98 Oh St 283; The Village of Struthers v. Sokol, The City of Youngstown v. Sandela, 108 Oh St 263.

In the Greenberg and Stein case, the ordinance under consideration defined an offense of attempted larceny in a manner otherwise than by force and violence or putting in fear. It was the contention of the appellants that the city had no authority to pass the ordinance; that the prohibition of crimes and offenses was within the police power, which power could be exercised only by the State. The Court held that the limitation upon the municipality to enact the ordinance was that it must conform to, i. e., not be in conflict with, the general laws of the state and that the ordinance was valid. Although the opinion is primarily grounded upon the constitutional power of the city to legislate as the ordinance provided, Judge Donahue devotes some attention to the statutory delegation of power. At page 284 of the opinion the author quotes §3658 GC, which is somewhat like R. S. 2108, involved in Wellsville v. O’Connor, supra. In §3658 GC, one of the police powers delegated is “to preserve peace and good order.” In R. S. 2108 “to provide for punishment of persons disturbing the good order and quiet of the corporation by” designated means “or otherwise violating the public peace by indecent and disorderly conduct * * * •” Continuing, “This would seem to be sufficient authority to authorize the municipality to enact the ordinance under which these prosecutions were had.” He then says that it is claimed that the offense prohibited is not an offense against property but against the person and that §3658 GC relates solely to the public peace (emphasis ours), and that the power conferred by §3658 GC is limited by the provisions of §3664 GC which designates the specific offenses that may be the subject of municipal control. At page 285, Judge Donahue cites Wightman v. State, 10 Ohio 452, and Koch v. State, 53 Oh St 433 for the proposition that a municipal corporation may provide for the punishment of an act which is also a misdemeanor under the state law. The opinion casts some doubt on the soundness of the judgment in Wells-ville v. O’Connor.

All of the syllabus in the Struthers and Sandela cases fortifies the conclusion that the ordinance here is constitutional. We will not quote it.

The other assignments of error are argued in the briefs. They were considered separately in the opinion of Judge Cecil which is submitted along with the briefs of both parties. As we are in accord with Judge Cecil’s opinion and the reasons supporting his conclusion that there was no prejudicial error to the cause of the defendant in the trial of the cause in any of the particulars asserted, it would serve no good purpose to prolong this opinion.

The judgment will be affirmed, and cause remanded.

MILLER, PJ, and WISEMAN, J, concur.


author: By THE COURT.

text:
    THOMAS, Trust, In re.
    Ohio Appeals, Second District, Franklin County.
    No. 4302.
    Decided June 27, 1949.
    Shocknessy, Summers & Denton, John H. Summers, of Counsel, Columbus, for Harry B. Holmes, Trustee, Plaintiffappellee.

      Herbert & Dombey, Edwin M. Tuttle, Columbus, for Mae Thomas Hrobon, Applicant-appellant.
    Wright, Harlor, Purpus, Morris & Arnold, Earl F. Morris, of Counsel, Columbus, for specific legatees and remaindermen.
   OPINION

By THE COURT.

Submitted on motion by Harry B. Holmes, one of the appellees herein, seeking an order dismissing the appeal on questions of law and fact. The record discloses that the order of the Probate Court from which this appeal was taken was the denial of the application of Mae T. Hrobon to remove Harry B. Holmes as trustee of the trust created by the will of Clay M. Thomas, deceased. The procedure to remove a fiduciary is statutory under favor of §10506-53 GC, and is not in any aspect a chancery case. See Bernhard v. Irwin, 50 Abs 288.

The motion to dismiss the appeal on law and fact will be sustained but the appeal will be retained for hearing on questions of law only as provided by §12223-22 and §11564 GC. The appellant will be granted the time allotted under supplement to Rule VII of this court for the filing of bill of exceptions, assignment of errors and briefs.

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

LAW APPEAL FROM PROBATE COURT

No. 4302. Decided February 23, 1950.

Herbert & Dombey, Paul L. Herbert, of Counsel, Edwin M. Tuttle, Columbus, for appellant-applicant.

John H. Summers, Columbus, for appellee-trustee.

Wright, Harlor, Purpus, Morris & Arnold, Earl F. Morris, of Counsel, Columbus, for Cla¡ra J. Mann, Millie K. Watson, Ray G. Thomas and Margaret Cassidy, appellees-legatees and remaindermen.

OPINION

By THE COURT.

This is a law appeal from the Probate Court for Franklin County.

The record discloses that pursuant to the provisions of the will of Clay M. Thomas, Harry B. Holmes was appointed and qualified as trustee of his estate. Under the terms of the trust Mae Thomas Hrobon, who was the widow of Clay M. Thomas, and who has since remarried, became the life tenant with the remainder to his brothers and sisters. This action was instituted by Mrs. Hrobon by the filing of an application for the removal of the trustee on the following grounds:

1. That he has been guilty of neglect of duty.

2. That the trustee has been guilty of incompetency.

3. That said trustee has been guilty of fraudulent conduct.

4. That the interests of the trust and the interest of the life tenant demand the removal of the said trustee.

Under each of the above charges there are listed several specifications to support them. •

The Court appointed a special master to take testimony and report his conclusions of law and fact. The master in his report found that none of the grounds set forth in the application had been established. The Probate Court thereupon approved the report and rendered a judgment for the defendants, ordering that all of the costs be paid by the trustee out of the income from the trust.

Ten errors are assigned, all of which, except No. 9, allege that the findings of facts were contrary to law and against the manifest weight of the evidence. We have carefully examined these assignments and find that the facts as found by the master and confirmed by the court are not contrary to law. Judge Reynolds in a well considered opinion, answered all the legal questions raised on these assignments and it would serve no good purpose for us to cite authorities to support his legal conclusions.

A further examination of the record discloses that the factual findings are all based upon substantial evidence and they cannot therefore be said to be against the manifest weight of the evidence. A reviewing court will not disturb a judgment as being against the manifest weight of the evidence unless such fact is made to appear manifestly and clearly. It will have no hesitancy about reversing a judgment if it finds no competent evidence which tends to support it directly or by reasonable inference, but will not reverse the judgment as against the weight of the evidence if it is supported by any competent credible evidence which goes to all the essential elements of the case. A reversal cannot be made by a reviewing court simply because the evidence is conflicting, for even though it might have returned a different verdict or finding from that rendered, it has no right to say that the verdict was not warranted.

,, The 9th assignment of error raises a legal question not considered by the trial court and to which we shall now direct our attention. It is here urged, although not discussed in the brief, that the court erred as a matter of law in assessing the entire costs of the appeal in this matter against the income of the trust. In some instances by express statutory authority costs are allowed to a particular party as a matter of right. However, there is no statute fixing such a right in an action for the removal of a trustee. Therefore, §11628 GC becomes applicable, which provides that in other actions the apportionment of costs is a discretionary power resting in the court “as it adjudges to be right and equitable.” Since Mrs. Hrobon instituted the proceeding and failed it becomes only fair and equitable that the costs be at her expense, which they became when taxed against the trust income. We find there was no abuse of discretion by the trial court in this assignment.

In considering the statutory grounds for the removal of this fiduciary we are of the opinion that an examination of the report made by the auditors appointed by the court is most convincing that there was no neglect of duty or incompetency on the part of the fiduciary. The record discloses the net income for 1939, which was the first full year under which the fiduciary operated the business, was $22,522.76. The next three years it was substantially the same; that in 1942 it increased to $36,721.56. And each of the following years there was practically a 25% increase, and finally for the first eight months of 1946, which was when the action was instituted, it rose to $95,423.76. If we are clear in our thinking these figures would most emphatically reflect competent, capable and skillful management. The report shows that a proper account has been made of the trust res and there is no evidence of any fraudulent conduct by the fiduciary. A careful digest of the financial progress made during the eight years of the operation of the trust is most convincing that its best interest demands that the trustee be retained and not removed.

We find no legal ground for such removal and the judgment will therefore be affirmed.

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


text:
    HOLBROOK, Plaintiff-Appellant, v. FREY et, (FRY), Defendants-Appellees.
    Ohio Appeals, Second District, Franklin County.
    No. 4377.
    Decided March 15, 1950.
    Jerry Dennis, C. M. Voorhees. Columbus, for Reynolds E. Holbrook, Admr., Plaintiff-Appellant.
    Earl Bougher, Dan A. Scarberry, Columbus, for defendantsappellees.
   OPINION

By THE COURT.

Submitted upon motion by the defendants-appellees seeking an order dismissing the appeal on questions of law and fact for the following reasons:

1. Appeal on questions of law and fact from the Probate Court to the Court of Appeals does not lie in a chancery case.

2. No bill of exceptions has been filed herein.

The record discloses that the appeal is from the judgment of the Probate Court on a complaint filed by the plaintiff-appellant under the provisions of §§10506-67-10506-77 GC. The proceeding was one brought by the administrator of the estate of Frank H. Barnes, deceased, which stated, “that he has, good cause to and does suspect and does verily believe that” said defendants-appellees herein “have concealed, embezzled or conveyed away or of being or having been in the possession of moneys, goods, chattels, things in action or effects belonging to the estate of said decedent, in fraud of the rights of complainant and others interested in said estate

This same question was determined by this Court in the case of Stevens, Admr., v. Reichelt, 10 Abs 553, the syllabus of which provides:

“The proceedings provided for by §§10673-10684 GC, are purely statutory, and an appeal from the Court of Appeals does not lie, since the Appellate Court has jurisdiction on appeal only in chancery cases.”

The Court states at page 555 of the aforementioned-case:

“There is no element of a chancery proceeding connected with the complaint provided for in the sections of the Code above cited.”

Secs. 10673-10684 GC cited supra have since been repealed and §§10506-67-10506-77 GC have been enacted in their stead.

The motion to dismiss the appeal on questions of law and fact will be sustained and as provided by §11564 GC the cause will be retained for determination on questions of law only. The appellant will be granted leave to file bill of exceptions, assignment of errors and briefs in accordance with supplement to Rule VII of this Court.

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

AN APPEAL ON LAW

No. 4377. Decided October 4, 1950.

By WISEMAN, J.

This is an appeal on law from the judgment of the Probate Court of Franklin County, Ohio. Complaint was filed by the administrator of the estate of Frank H. Barnes, deceased, against Chris Fry and Muriel Fry, the appellees herein, for concealment oí assets under §10506-67 GC. The court found that the allegations of the complaint were not well taken and dismissed the same. The court found that the title and ownership of all the property mentioned in the original complaint and in the complaint as amended was in the appellees, Chris Fry and Muriel Fry, and ordered all of said property delivered to them.

We find no errors assigned well made. The Probate Court had authority under §10506-73 GC, to hear and determine the question of title to the assets involved. In re Estate of Howard, 79 Oh Ap 303, 72 N. E. (2d) 502; In re Estate of Black, 145 Oh St 405, 62 N. E. (2d) 90.

The Probate Court had a right to order the complaint amended by including other assets not mentioned in the complaint as filed'to conform to the evidence. Sec. 11363 GC; In re Estate of Howard, supra.

When the complaint is ordered amended and it is agreed to by the parties and evidence is taken on the complaint as amended without objection the complainant is estopped to complain after judgment is entered against him. The court had jurisdiction of the subject-matter and under an amended complaint had jurisdiction to hear and determine the title to assets brought into the case by said amendment. Vol. 16 O. Jur. p. 632; §10506-73 GC; last para. §10501-53 GC.

The fact that counsel did not specifically follow the original suggestion of the trial court with respect to amending the original complaint did not deprive the court of jurisdiction to determine the issues raised by the evidence. It has been held that,

“the mere right to have the petition amended to conform to the proof, even though the same was not done, is treated by the reviewing court as if the amendment had been made, providing the evidence in the case made the subject of the amendment a triable issue, and further provided that the issue was one of the theories upon which the case was tried.” Kronenberg v. Whale, 21 Oh Ap, 322, 334, 153 N. E. 302. (Motion to certify record overruled, 23 O. L. R. 609); Vol. 31 O. Jur. p. 947.

The procedure followed in making up the issues was agreed to by counsel and approved by the court.

We have no difficulty in afiirming the judgment of the trial court that the evidence showed a gift causa mortis of all assets involved. The delivery of the keys by the decedent to the appellees was symbolic of the delivery of the assets. The securing of the possession of the keys by the complainant after his appointment as administrator for the purpose of a search for a will and to list the assets did not amount to a relinquishment of the possession of the assets by the appellees.

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

MILLER, PJ, and HORNBECK, J, concur.


text:
    W. E. ANDERSON SONS COMPANY, Appellant, v. GLANDER, Tax Commr., Appellee.
    Board of Tax Appeals.
    No. 16188.
    Decided April 11, 1950.
    Richard V. Willcox, Dargusch, Caren, Greek & King, by Darold I. Greek, Columbus, for appellant.

      Hon. Herbert S. Duffy, Atty. Geni., W. H. Annat, Asst. Atty. Geni., Columbus, for appellee.
   ENTRY

This is an appeal from a final order of the Tax Commissioner under date of April 20, 1949, wherein a sales and use tax adjusted assessment, covering an audit period from January 1, 1943, to December 31, 1946, was made in the following sums:

ASSESSMENT PENALTY TOTAL
Sales $5,968.90 $298.45 $6,267.35
84.91 4.25 89.16
Total sales and use taxes______$6,356.51

The complaint of the taxpayer is now before the Board of Tax Appeals upon the notice of appeal, the Tax Commissioner’s transcript, the record of evidence had before a member of this Board on November 17, 1948, and January 4, 1950, and briefs of counsel. The following appears as Item 2 within a stipulation of facts (pages 64 and 65 of the record):

“The appellant does not contest the use tax amounting to $84.91 and does not contest the sales tax assessed on items other than (a) dump trucks and repair parts for dump trucks, and (b) truck chassis upon which concrete mixers are mounted and repair parts for such chassis. The amount of sales tax upon the purchase or use of such other items is $330.21, making a total of sales and use tax not contested of $415.12. The balance of the assessment consists of sales tax and amounts to $5,638.69 and said amount is the total am mint, assessed upon dump trucks and repair parts therefor and truck chassis upon which concrete mixers are mounted and repair parts therefor, and is the amount in issue before the Board of Tax Appeals.”

It is further agreed in Items 3, 4, 5 and 6 of the stipulation that the sales and use tax upon the purchase of truck chassis upon which concrete mixers are mounted and repair parts thereof amount to the following:

For the year 1943--------------------$ 289.82
” ” ” 1944____________________ 390.69
” ” ” 1945____________________1,061.84
” ” ” 1946____________________ 1,092.12

and that the like total tax on dump trucks and repair parts is:

For the year 1943____________________$ 289.82
” ” ” 1944____________________ 390.69
” ” ” 1945____________________1,061.84
” ” ” 1946____________________1,061.87

Item 5 recites that:

“The respective percentages of the time that the dump trucks were used in transporting materials owned by appellant and in transporting materials owned by others for the years in question were as follows:
% of Time Hauling for Others % of Time Hauling Appellant’s Materials
1943 _______90.1 9.9
1944 _______47.0 53.0
1945 _______31.8 68.2
1946 _______33.7 66.3

Like figures for truck chassis upon which concrete mixtures were mounted are, as shown in Item 6:

%of Time Hauling for Others %of Time Hauling Appellant’s Materials
1943 _______3 97
1944 _______3 97
1945 _______3 97
1946 -------3 “ 97

It is agreed that while hauling for others appellant was engaged in rendering a public utility service under the jurisdiction of the corresponding State agency. Two other agreed facts appear. The purchase and use of the concrete mixers and their repair parts were not assessed; and that in computing the assessment the Tax Commissioner did not levy an assessment against that portion of the cost of appellant’s purchases which are represented by the percentage figures shown under the column “% of Time Hauling for Others” for the reason that it was considered that such use was directly made in the rendition of a public utility service. It is, therefore, apparent that the percentage assessment as made is based upon that proportion of the use as appears under the column of “% of Time Hauling Appellant’s Materials,” which is susceptible of a further breakdown into three parts.

The major query presented in this assessment and appeal concerns the taxpayer’s claim of nontaxability of the chassis and repairs therefor upon which the concrete mixers are mounted. This right to exception is predicated upon three grounds. First, that it was the purpose of the consumer, when purchased, to use or consume them directly in the production of tangible personal property for sale by manufacturing or processing. Second, it was also the purpose, at time of purchase, to use or consume them directly in making retail sales. In stating appellant’s third ground, .we quote from its brief:

“If the Tax Commissioner excludes from the tax purchases of materials used as a base for machinery which may be purchased without payment of tax when such base is stationary, because the base is considered to be a part of the machinery, can he, without discrimination and without denying equal protection of the law, assess a tax on a movable base for machinery which is used directly in the production of tangible personal property and which can be purchased without payment of tax?”

It is apparent that the first two grounds of appellant’s complaint are hinged upon the words “the purpose of the purchaser” as they appear in §5546-1 GC to establish the exception of its purchase of truck chassis and repair parts from all other articles of tangible personal property that are taxable when sold at retail. The applicable portion of this statute reads:

“ ‘Retail sale’ and ‘sales at retail’ include all sales excepting those in which the purpose of the purchaser is (a) * * *; or (b) * * * to use or consume the thing transferred directly in the production of tangible personal property for sale by manufacturing, processing * * *; or directly in making retail sales * *

If sales taxation is dependent solely on one’s declared purpose at time of purchase, tax evasion is a simple matter to him who is so inclined; and his circumvention of the law’s purpose can only be corrected by departmental audit, which, if necessary in every case, would create such a stupendous task that the law could not be uniformly enforced. Taxation of retail sales is not dependent upon a purchaser’s interpretation of the law’s terms, or avoidable by the purchaser’s declared purpose. That purpose may undergo future quick change, or such property may be used or consumed in a manner that is not directly creative of tangible personal property for sale by manufacturing or processing, or directly in making retail sales. The statute not only presupposes that an article is proposed to be used for an excepted use, but that it will actually be used for an excepted purpose. These observations produce the simple query: Were the truck chassis so used?

Appellant’s principal business is the manufacturing and sale of concrete mix at retail and wholesale. This is practically the exclusive use to which the truck chassis, upon which the' cement mixers are fixed, are put. Their use in public utility service is here of no concern. The following operative facts are contained within the record. There are three methods of manufacturing and selling mixed concrete; (1) central-mix, where the concrete is manufactured at a central plant and then transported to the job site; (2) job-site manufacturing by mixers located at the job site; and (3) transit-mix, where the ingredients are loaded in mixers mounted on truck chassis and manufactured en route to the job site. This third method is said by appellant to be “the more convenient, economical and efficient manufacturing method followed by appellant in the use of his machinery,” and that it is penalized by the Commissioner’s order “for using a better mouse trap.” Appellant is engaged exclusively in the third type of manufacture. Its production begins when ingredients and aggregates enter the mixers from bins in appellant’s yards. It is claimed to end at job site upon delivery. As we understand the process, when aggregates and cement go into a mixer they are then being and continue to be revolved until the ingredients are thoroughly mixed. Then water in the amount required is added to make the sump, its- liquid consistency, such as is desired in the yard. The distance to be covered to job site is important, as concrete begins to set in one and a half to two hours. The mixer continues, to revolve throughout transit. Drivers are skilled. They must add water in transit, if needed, or at the job site if the purchaser requires that the mixture be thinned. No independent charge is made for delivery. All factors, like character and quantity of ingredients, distance of delivery point, road conditions en route and at point of delivery, and manner of delivery, and other usual elements of cost of production are considered in fixing sales price, which varies accordingly. Appellant retains title until delivery is made. A purchaser may reject any mixer load at delivery point if the concrete is unac-' ceptable for any valid reason. Green concrete is said to be perishable.

Truck chassis for transit concrete mix are specially built. They are approximately 5000 pounds heavier than ordinary industrial chassis. They are seldom used for other purposes because the extra weight reduces the pay load and the resale value is said to be low. These truck chassis have specialized mechanical parts such as tandem driven axles, dual frames, larger springs on the right side to equalize the load of the mixer’s concrete from left to right, larger transmission, larger clutch, larger tires with mud and snow gripping tire tread, longer wheel base, and a larger battery and generator which have at times within the audit period been purchased independently of truck chassis equipment.

The cement mixer is operated by a gasoline motor which is attached to and is a part thereof. It causes the mixer to revolve independently of the truck chassis mechanism with a single exception, that being that the mixer’s gasoline motor is started in action by the use of the truck chassis battery and generator in the yards when the ingredients are first begun to be mixed. The truck chassis plays no further part in the manufacture of concrete save that of transporting the mixer and its contents to the point of delivery. Is the truck chassis used in the manufacture of concrete?

From the related facts it is clear that the truck chassis plays two parts in the operation of the manufacture and sale of concrete. First, it starts the mixer motor which actually begins the process of transit-mix manufacture of concrete. Second, it transports the mixer and its contents to the job site. In our search for superior direction, the case of Kroger Grocery & Baking Co., v. Glander, 149 Oh St 120 (132) may safely be disregarded because of the statement therein found that “transportation itself is not involved in this record.” We feel that the answer may be found in the recent case of Asphalt Corp. v. Glander, 152 Oh St 497, which reviews the four earlier cases of Saunders Mills, Inc. v. Evatt, 139 Oh St 227; France Co. v. Evatt, 143 Oh St 455; Dye Coal Co. v. Evatt, 144 Oh St 233, and Fyr-Fyter Co. v. Glander, 150 Oh St 118. Appellant states that “the truck chassis were the key to appellant’s operations” and without them it could not carry on its business. Such statements are undoubtedly true. But is that the test of exceptability? Judge Stewart, speaking for the court in the Asphalt Corp. case, supra, says, on page 501 thereof, that:

“When the General Assembly excepted from taxation the sales of those things which were to be used or consumed directly in the production of tangible personal property for sale by processing, it 'had in mind only such articles as had a direct part in the processing. Sales of instrumentalities of transportation and other articles or things which are necessary to carry on the business of processing, but which themselves have no part directly in the production, were not excepted.”

As the Board views the facts, the truck chassis battery and generator only put in motion the mixer’s gas motor which begins the first step in the production of concrete. It plays no further part therein other than to transport the mixer and its load to the point of delivery. In Asphalt Corp., supra, a crane was involved. It was recognized as necessary and indispensable to the taxpayer’s business, but, as said on page 502, it

“* * * was not engaged in converting the ingredients into a processed product” but used in bringing materials to the place where processing began.

But it is further maintained that it is unfair and discrimatory to except or exempt an immovable base from taxation when the instrumentality which it supports is tax free, and to tax a movable base when the article which it carries is excepted from taxation. An assistant to the Tax Commissioner states it has been the departmental practice not to tax stationary bases when that which it supports is excepted from taxation. He further states that such practice has never been applied to mobile bases. No rule of the Tax Commissioner is directly complained of although we are referred to the Tax Commissioner’s Rule No. 44 which, in part, relates to taxability of vehicles used for delivery purposes, and Rule No. 39 which relates to taxation of personalty used in administration, production and distribution of goods manufactured for sale. In stationary bases no question of transportation is involved. In the present controversy this Board does not have before it any question of the propriety of the Commissioner’s practice with respect to immovable bases. Appellant places considerable reliance upon that portion of the court’s opinion in Tri-State Asphalt Corp. .v. Glander, supra, which reads:

“* * * if such instrumentalities are used solely to transport partially processed materials to another location where the processing is continued or completed by the same processor, they are used directly in the production of the processed property.”

■ It is, of course, appellant’s position that its manufacture of concrete is -.a continuous process of operation to the point of delivery. We think that it may be more properly said that the concrete is actually made in its yard. Its continuous agitation simply keeps- it from setting; and the addition of water, when and if needed, simply changes its liquid consistency and not its substance. It must further be observed that the facts of the Asphalt case, supra, are not parallel to the facts here presented, and from the rest of the court’s reasoning therein such would not have been said in a case like the present one.

The Board feels that in view of the claims herein made that it ought to be pointed out that during practically half of the truck chassis operation — that is, on its return trips — it is transporting the cement mixer back to the appellant’s yards when it is definitely not engaged in manufacturing and delivering concrete for sale. Its return to the yard is something more than the return of a delivery truck for another load.

Another of appellant’s contentions is that the truck chassis are “used directly in making retail sales” and, therefore, the purchases of said truck chassis are excluded from the definition of “retail sale” as that term is used in §5546-1 GO.

■ The evidence herein indicates that about 50% of appellant’s sales of transit mixed concrete were for resale and about 50% of said sales were “retail sales” or sales to persons who did not buy for resale; that the concrete is placed where the purchaser specifies and in many instances is spread 'or dumped in small quantities in several designated spots; that the cost of transporting the concrete is added directly to the price of the concrete being sold so that in all cases the cost of this service is included as a part of the selling price of the materials.

Appellant argues that the sale of the transit mixed concrete does not occur until delivery is made to the place or places indicated by the purchaser. As to this argument it might here be pointed out that the transit mix is delivered, in each instance, following an agreement or contract previously entered into between the appellant and the purchaser, and no sales are made from the truck on a door to door solicitation basis; in other words, the truck chassis is used by the appellant to deliver merchandise already on order by the purchaser.

And it might further be observed that the Board of Tax Appeals fails to see how the truck chassis could be said to be used directly in making “retail sales” on the distinction of having the delivery cost computed separately on each sale and delivery of transit mixed concrete, rather than having all delivery costs averaged and included in the total price collected from each individual purchaser. In either instance the truck chassis would be performing the same function. The function of the truck chassis in delivering the concrete to the purchaser is, in effect, no different from the function a delivery truck performs when it is used to transport any article of tangible personal property to the home or office of a purchaser following the receipt of an order therefor.

Appellant also contends that the term “retail sale,” as used in §5546-1 GC, should be given a liberal construction in favor of the taxpayer in accordance with certain pronouncements contained within tax cases decided by the Supreme Court of Ohio. (See Kroger Grocery & Baking Company v. Glander, supra, and Bailey v. Evatt, 142 Oh St 616.)

In this connection it might be pointed out that §5546-2 GC, among other things, provides that:

“For the purpose of the proper administration of this act and to prevent the evasion of the tax hereby levied, it shall, be presumed that all sales made in this state are subject to the tax hereby levied until the contrary is established.”

It is also noted that the law of Ohio relating to exemptions and exceptions, as- enunciated in the third syllabus in the case of The Cleveland Cliffs Iron Company v. Glander, 145 Oh St at page 424, reads as follows:

“The provision of any statute which purports to except certain property from general provisions governing taxation is a measure of exemption, and laws relating to exemption of property from taxation being in derogation of equal rights are strictly construed.”

Inasmuch as the Board has found that the truck chassis plays no part in the processing of concrete other than transportation of the mixer and its load, and is not directly used in the making of retail sales, we perceive no other course than to follow the mandate of the Asphalt Corp. case, supra, as hereinbefore set forth. The Tax Commissioner did not err in holding the truck chassis to be taxable items.

The secondary question concerns the exceptability of purchases of dump trucks and repair parts therefor from taxation during the percentage of time of use in hauling appellant’s materials. Appellant contends that it had two purposes in their purchase. First, a primary one of using and consuming them directly in the rendition of a public utility service and second, a use and consumption directly in making retail sales; and that either one or both of which were sufficient reasons for excluding such purchases from imposition of a tax. Which is to say that substantial use in part for such purposes is sufficient to warrant total exclusion. The answer to this theory of purpose must be the same as heretofore stated concerning truck chassis. The Tax Commissioner takes the view that in hauling its own materials the dump trucks are nothing more than delivery trucks for the transportation of said gravel and other aggregates, dirt, and bituminous concrete; when it sells its products it takes into account all cost factors in arriving at selling price, including delivery, as in the sale and delivery of its transit mixed concrete; that it retains title to its goods until it makes delivery, and that it makes no separate charge for delivery. As previously noted, this activity may be broken down into three parts. (1) In hauling aggregates and ingredients to appellant’s smaller yards. Appellant minimizes this branch of its business, but recognizes that such use percentage is clearly not excludable, but a taxable item. (2) In hauling aggregates, blacktop to others for resale. (3) In hauling aggregates, blacktop and other ingredients to a consumer purchaser for use. The Board is invited to contrast that situation where “delivery is a matter of convenience to the customer and is not necessarily a condition of sale” and “the price of the item is constant and does not vary depending upon whether delivery is at the store or at the customer’s home” with the instant facts where “the delivery costs are passed directly and immediately on to the consumer by way of higher prices for - the materials sold.” Which is to say that because the cost of delivery is concealed in a portion of the selling price, its dump trucks are exceptable items not subject to sales taxation.

It does not require an overly astute individual to be cognizant of the fact that concerns selling articles at a fixed price with free delivery service within a fixed area figure in as a part of the item’s sales price the average cost of delivery and for which all purchasers pay whether they accept delivery at a store or at their homes. In both instances cost of delivery is concealed within sales price. The argument is ingenious, but hardly convincing. Here again necessity is urged in support of appellant’s claim. The answer is the same as heretofore made concerning truck chassis. We find no exception within the statute involved excluding articles used in delivery service in any of the three ways that these dump trucks are used. It is the Board’s judgment that the Tax Commissioner did not err respecting the proportional assessment of the dump trucks. The order appealed from may be and is affirmed.

I hereby certify the foregoing to be a true and correct copy of the action of the Board of Tax Appeals of the Department of Taxation this day taken with respect to the above matter.

JOSEPH D. BRYAN

Secretary


text:
    FIEBIG et, Plaintiffs-Appellees, v. BROFFORD et, Defendants-Appellants.
    Ohio Appeals, Second District, Franklin County.
    No. 4354.
    Decided March 10, 1950.

      Hamilton & Kramer, Joseph Hague, of Counsel, Columbus, for plaintiffs-appellees.
    Richards & Richards, Columbus, for defendants-appellants.
   OPINION

By THE COURT.

This is an appeal on law from the Common Pleas Court of Franklin County, Ohio, which rendered judgment on the verdict returned in favor of the plaintiffs in the amount of $600.00.

The defendants-appellants have assigned as error: That the verdict and judgment are excessive; that the verdict was given under the influence of passion and prejudice; that the verdict is not sustained by sufficient evidence and is contrary to law.

The issues were not clearly drawn by the pleadings. The defect in the pleadings was cured by the evidence.

It is apparent that counsel and the trial court proceeded to try this case on the theory that the plaintiffs based their right of recovery on the claim that the defendants made a false representation in the sale of a house to the plaintiffs with respect to the condition and construction of the house, which was constructed by the defendants and was near completion; that the false representation was made for the purpose of inducing the sale; that the plaintiffs relied on said representation to their damage.

The action sounds in tort. The evidence supports this theory of the case. We are required to construe the evidence most favorably to the plaintiffs. In an action of this character it is not necessary to allege or prove scienter, or that the representation was made with the intent to deceive. Insurance Company v. Reed, 33 Oh St 283, 294; Gleason v. Bell, 91 Oh St 268, 110 N. E. 513. Under the evidence this case falls within the rule laid down in the first paragraph of the syllabus in Gleason v. Bell, which is as follows:

“Where a purchaser was induced to buy and pay for a city residence, by false representations made to him by the vendor as positive statements of fact clearly implying knowledge of the owner of the truth of the facts stated, and made under such circumstances that the vendor should have known of the falsity of the representations, and they were of such a nature as to affect the character, utility and value of said property, and the purchaser had a right to and did rely thereon, and suffered damage by reason thereof, he may recover. In such a case an averment that the vendor knew the representations to be false and made them with intent to deceive is not essential.”

It is difficult to determine on what theory this case was tried and presented to the jury. The jury was not instructed in regard to the elements of fraud. At the end of the charge the court inquired of counsel whether they had any suggestions to make with reference to the court’s charge. Whereupon, at the request of counsel for the defendants, the court charged the jury that the action was not predicated on fraud. This charge was erroneous but since the defendants induced the error, they cannot be heard to complain. Sec. 11560 GC. Furthermore, no error is assigned in regard thereto.

The measure of damage in a case of this character is the difference in value of the house as taken and as represented Gray v. Gordon, 96 Oh St 490, 495, 117 N. E. 891; Dieterle v. Bourne, 40 Abs 550, 57 N. E. (2d) 405. No evidence as to value was introduced.

Evidence was admitted to show that by reason of the faulty manner in which the shingles were laid and the faulty construction and fitting of the flashing, when it rained water came through at numerous places, causing damage to the plaster and the interior of the house; that the plaintiffs placed a new roof over the old roof at a cost of $270.00, and repaired the plastering in one room at a cost of $50.00. In view of the evidence with respect to the faulty construction of the roof, we cannot say that a verdict of $600.00 was excessive or given under the influence of passion and prejudice.

The'verdict and the judgment are not sustained by sufficient evidence in that there was no evidence as to the value of the property as taken and as represented, and is contrary to law.

Judgment reversed and cause remanded for new trial and other proceedings according to law.

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