author: By DOBIE, Circuit Judge:

text:
    HARRISON, Jr., Appellant, v. HARRISON, Appellee.
    United States Court of Appeals, Fourth Circuit.
    No. 6794.
    Decided July 19, 1954.

      Robert C. Stackhouse and Howard I. Legum (Louis B. Fine on brief) for appellant.
    William C. Worthington (Worthington & White on brief) for appellee.
    Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.
   OPINION

By DOBIE, Circuit Judge:

Martha Harrison filed a civil action in the United States District Court for the Eastern District of Virginia against Joseph Kent Harrison, Jr., in which she sought to declare a Mexican divorce obtained by the defendant, Joseph Kent Harrison, Jr., void. She further asked the court to adopt an Ohio decree of divorce between the parties as to alimony and support money as a judgment of the District Court, and sought to require, by a ’judgment, of the District Court, the defendant to pay both the past-due monies and monies accruing in the future for alimony and support, with power to enforce payment by attachment for contempt.

The District Court denied the defendant’s motion to dismiss and ordered the defendant to file his answer. The defendant filed an answer, which was followed by motions for summary judgment filed both by the plaintiff and the defendant, and the defendant’s answer to the plaintiff’s motion to dismiss. The District Court granted to the plaintiff the relief sought in the complaint, and defendant has appealed to us.

Martha Harrison and Joseph Kent Harrison, Jr., were married in Middletown, Ohio, on September 11, 1937. Thereafter, they lived together in Shaker Heights, a suburb of Cleveland, Ohio. One child, a boy named Joseph Kent Harrison, III, was born of the marriage. He is now fourteen years old and his custody has been awarded to his mother by the Ohio divorce court.

In January, 1951, Joseph’s growing domestic difficulties with Martha came to a head. She instituted, in the Court of Common Pleas of Cuyahoga County, Ohio, a divorce suit against him, in which he was personally served with process, retained a lawyer to represent him, and made a temporary alimony and money support agreement and he appeared by counsel in the divorce suit in connection with the filing of this agreement.

Soon thereafter, Joseph gave up his job in Cleveland which carried an annual salary of $9,200,000 and went to work in Norfolk, Virginia, with an annual salary of $6,000.00, for a company of which Marjorie Burton was an officer and the majority stockholder. He took this substantial cut in salary despite the fact that he had experienced considerable trouble supporting nis wife and child on his salary in Cleveland. Apparently, Joseph and Marjorie were frequently together and became close friends. In the meanwhile, Joseph had tried, without success, to have the divorce proceeding go through to a final disposition. The wife, it seems, had several times had the case continued.

In early November, 1951, Joseph, on full pay from his Norfolk employer, left Norfolk for Mexico, where Marjorie joined him in less than two weeks. He stayed in Mexico about six weeks. On December 10, 1951. Joseph, without personal service on Martha, obtained a divorce decree from Martha, in the First Civil Court, Bravos District, State of Chihuahua, Republic of Mexico. About three days later, Joseph and Marjorie went through a marriage ceremony in Mexico. Very shortly thereafter, he returned to Norfolk.

During the events described in the preceding paragraph, the Ohio divorce suit had been pending unadjudicated. Thereafter, Martha went ahead with the Ohio divorce and was awarded a decree of divorce in her favor wherein Joseph was found “guilty of gross neglect of duty and extreme cruelty towards plaintiff.” The decree also contained the following order:

“That plaintiff recover from the defendant the sum of $10,000 as an award for alimony and for support of said minor child of the parties, for which amount judgment is hereby rendered in favor of plaintiff against defendant and upon which judgment execution may immediately issue;

That until the further order of the court, and commencing as of November 1. 1952, defendant pay to plaintiffs as alimony the sum of $200.00 per month plus $200.00 per month for the care and support, during his minority, of said minor child of the parties: that as to each such monthly payment the Court expressly denies to itself any reservation of the power to recall or modify any such payment after the same shall have become due and payable in accordance herewith, * *

The judgment covered not only the sum of $10,000 but the additional sum of $3,400. representing the net amount of arrearages of alimony

Joseph has paid to Martha, on current alimony and support money, not one cent since May 9. 1952, and apparently he intends to pay her nothing. He has, though, sent various sums of money to his son.

During the ten months which elapsed between the Mexican decree and the trial of the Ohio divorce proceeding, the Ohio court was wide open to Joseph to assert the defense of the dissolution of the marriage in Mexico. This he failed to do. Indeed, the wife presented a copy of the Mexican decree to the Ohio court and the Ohio court proceeded to grant her a divorce in the face of the Mexican decree. The dissolution of the marriage by the Ohio court in October, 1952, necessarily included an adjudication that the marriage between the parties then existed. Joseph had that fact adjudicated against him in Ohio; and it is now too late for him to relitigate the same issue of fact against Martha in Virginia. See Patterson v. Saunders, 194 Va. 607, 74 S. E. 2d. 204, 208.

It is quite apparent, too, from the record in the instant case, particularly from Joseph’s own testimony, that he never acquired a bona-fide domicile in Mexico. This Mexican divorce decree is, therefore, utterly lacking m extraterritorial validity. Williams v. North Carolina, 325 U. S. 226.

In Ohio, it seems to be well settled that alimony and support money awarded by a court of Ohio in a valid divorce suit cannot be disturbed by any subsequent divorce proceeding in a foreign court in which there is only constructive service. Melnyk v. Melnyk, 107 N. E. 2d. 549, 550; Doerr v. Forsythe, 50 Oh St 726, 35 N. E. 1055; McGill v. Deming, 44 Oh St 645, 11 N. E. 118.

Appellant apparently concedes the power of the District Court to require him to pay past-due alimony, with the ordinary remedies of a judgment at law. He strenuously insists, however, that the District Court had no power to enter a decree against him for future alimony and particularly to enforce such a decree through its equitable processes acting both in personam and in rem. We think the District Judge correctly decided: “The monetary decree of this Court will be hereafter enforced through the exercise of its equity powers in personam as well as in rem.” The District Judge also decreed:

“This Court will not entertain any application in the future for a modification of any payment nor in any way adjudicate its justice, leaving any change in the original decree as to future payments to the said Court of Common Pleas of Cuyahoga County, Ohio, such change to be thereafter adopted by this Court.”

If, as Joseph contends, Martha were here limited to judgments at law, this would compel her to sue on each alimony payment as it became due (certainly a severe hardship) and might afford Joseph too easy on opportunity to evade executions issued on such judgments. The power of a court of equity here seems to be well established by the authorities.

As early as 1858, said Mr. Justice Wayne, in Barber v. Barber, 21 How. (62 U. S.) 582, 592:

“We have already shown, by many authorities, that courts of equity have a jurisdiction to interfere to enforce a decree for alimony, and. by cases decided by this court, that the jurisdiction of the courts of equity of the United States is the same of that of England, whence it is derived.”

The Barber case was expressly approved in Sistare v. Sistare, 218 U. S. 1. In McKeel v. McKeel, 185 Va. 108, 116, 37 S. E. 2d. 746, Mr. Justice Eggleston said:

“Accordingly, we conclude that a decree for alimony and support money, granted by a foreign court, may be established and enforced by and through the equity courts of this State, with the incidental power of enforcement of such a decree by attachment for contempt.”

See, also, Capell v. Capell, 164 Va. 45, 49, 178 S. E. 894, 895. See, too, Ostrander v. Ostrander, 190 Minn. 547, 252 N. W. 449; Franchier v. Gammill, 148 Miss. 723, 114 So. 813; Bruton v. Tearle, 7 Cal. 2d. 48, 59 Pac. 2d. 953.

This brings us to the final question in the case — whether the District Court had the power to include in its decree not only past-due alimony but alimony to become due in the future under the Ohio decree. We think the District Court had this power.

Said Mr. Justice Eggleston in the McKeel case, supra, 185 Va. at page 113:

“But even though the courts of Virginia may not be compelled to do so under the full faith and credit clause of the Federal Constitution, upon principles of comity they may establish as their own decree a foreign decree for future payments of alimony, with the same force and effect as if it- had been entered in Virginia, provided of course, the foreign decree violates no public policy of Virginia. See Biewind v. Biewind, 17 Cal. 2d. 108, 109 P. 2d. 701, 132 A. L. R. 1264, and the annotation following it, for a full discussion, and the development of the subject.

Since there is nothing in the terms of the Florida decree or in the background of the divorce suit which runs counter to the public policy of the State of Virginia, the Circuit Court of Norfolk county, upon principles of comity, had full power and authority to enter a decree based on the Florida decree requiring the payment of future installments of alimony and support -money.”

It is clear that there is here a real conflict in the decided cases. The older cases seemingly hold against the application of the decree to payments ■ of alimony to become due in the future, while the later cases incline to the view that such payments may properly be included in the decree.- The authorities, pro and con, are cited and discussed by Mr. Justice Eggleston in the McKeel case, supra.

Apart from purely technical considerations, the older and more rigid rule has little to recommend it. We prefer, as did the District Judge, the modern, liberal rule, which appears to be grounded in reason and flavored with common sense. Stated Mr. Justice Jackson, in his concurring opinion in Barber v. Barber (1944), 323 U. S. 77, 78: “The purpose of the full faith and credit clause is to lengthen the arm of the State Court and to eliminate state lines as a shelter from judicial proceedings.” See, also, supra, the Bru.ton,. Ostrander and Franchier cases.

Had Martha sued here in a court of the State of Virginia, clearly, under the McKeel case, supra, she would have obtained the relief granted to her in the instant case by the District Judge. In Guaranty Trust Co. v. York, 326 U. S. 99. 109, Mr. Justice Frankfurter said:

“In essence, the intent of that decision (Erie Railroad Co. v. Tompkins, 304 U. S. 64) was to insure that, in all cases where a federal court is exercising jurisdiction solely because of the diversity of citizenship of the parties, the outcome of the litigation in the Federal court should be substantially the same, so far as legal rules determine the outcome of a litigation, as it would be if tried in a State court. The nub of the policy that underlies Erie R. Co. v. Tompkins, is that for the same transaction the accident of a suit by a non-resident litigant in a federal court instead of in a State court a block away should not lead to a substantially different result.”

The decree of the District Court is affirmed.


source: Caselaw Access Project

author: By DOYLE, PJ.

license: Public Domain

text:
    CLEVELAND (City) (Cleveland Transit System), Plaintiff-Appellant, v. LANGENAU MFG. CO., Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22981.
    Decided July 1, 1954.
    Wilmot, Baskin, Lausche & Kelley, Cleveland, Robt. Mooney, John G. Cardinal Cleveland, for plaintiff-appellant.
    Strangward & Lloyd, Cleveland, Donald M. Marshman, Cleveland, for defendant-appellee.
    (DOYLE PJ, HUNSICKER J, STEVENS J, of the Ninth District sitting by designation in the Eighth Appellate District.)
   OPINION

By DOYLE, PJ.

The present appeal stems from a proceeding commenced and completed in the Common Pleas Court of Cuyahoga county to assess compensation for a manufacturing plant and the land upon which it is located, to be taken by condemnation for the purpose of providing right of way facilities for a street car line to be constructed by the City of Cleveland through its transit system.

The extent and nature of the property to be acquired, and the occasion for taking private property for public use, have all been established in compliance with law. The sole question before this court is whether it is reversible error for the trial court to have admitted certain challenged evidence, and to have instructed the jury as it did.

The property condemned is owned by the Langenau Manufacturing Comany located at 3403 Franklin Avenue, Cleveland, Ohio. It is occupied and used by the company as a manufacturing plant. The jury awarded $350,000 as compensation and an appropriate judgment was thereupon entered. This judgment forms the basis of the appeal. The City of Cleveland is the appellant, and claims error prejudicial to its rights.

We have not only read the large record of evidence presented in this appeal, but have likewise examined with utmost care the charge of the court. We are of the opinion that the court’s charge is in obedience to the various pronouncements of the Supreme Court of this state and the better authorities in other states. Market value is, in this state, and is by the great, weight of authority, the standard for measuring compensation to the owner of appropriated real property. Market value is not necessarily an end in and of itself however but is merely a means to an end; the ultimate object being the ascertainment of just compensation.

Many appropriation cases deal with land which is of such a kind and so situated as to be available for sale in the ordinary course of dealing. Not usual, however, are the cases where an operating manufacturing plant of long standing is appropriated as is the case here before us.

In recently decided cases, the Supreme Court of this state has erected several guides to chart the course toward the ultimate question of just compensation.

Paragraph 3 of the syllabus in In Re Appropriation of Superintendent of Public Works: Sowers, Supt., v. Schaeffer et, 155 Oh St 454, is as follows:

“3. The rule of valuation in a land appropriation proceeding is not what the property is worth for any particular use but what it is worth generally for any and all uses for which it might be suitable, including the most valuable uses to which it can reasonably and practically be adapted.”

In Langenau Mfg. Co. v. City of Cleveland, 159 Oh St 535, the Supreme Court, speaking in referrence to the identical property here under consideration, said:

“3. It is the duty of the court in an appropriation proceeding to afford the property owner the right to fully show the extent and character of the real estate proposed to be taken and its maximum value for any purpose for which its use is. available, including the use which is presently made of it.
4. The issue of the true value in money of property to be appropriated for public use is exclusively within the jurisdiction of the court in the appropriation proceeding, and such court has unquestioned authority to determine the value of the property sought to be taken to the full extent of the constitutional rights of its owner therein.
(a) In estimating the value of the property taken or injured, as the measure of damages every element which affects or causes a depreciation in the value of the property may be considered. Consideration may be given to the uses to which the property might be applied before and after the taking or injury, or to which it was devoted by the owner at the time of the taking, as having a special value to him * * * (Quoting from 30 C. J. S. Eminent Domain, Sec. 446 at page 188.)
(b) It is the duty of the court in the appropriation proceeding to afford Langenau the right to fully show the extent and character of the real estate proposed to be taken and its maximum value for any purpose for which its use is available, including the use which is now made of it.”

It appears to the members of this court that the interpretation placed upon the pronouncements of the Supreme Court by the trial court were not erroneous, and that no prejudicial error is shown in respect to the court’s charge to the jury.

Passing now to the other claims of' error, including the wrongful admission of testimony, we find no error of a prejudicial character to exist here. The witnesses were competent to testify and the weight to be given their testimony was for the jury.

The judgment is affirmed. Exceptions noted. Order see journal.

STEVENS J, HUNSICKER J, concur.


author: By HUNSICKER J:

text:
    ST. PAUL MERCURY INDEMNITY CO., Plaintiff-Appellee, v. KOPP et, Defendants-Appellants.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23,129.
    Decided July 1, 1954.
    Kitchen & Messner, Cleveland, for plaintiff-appellee.
    Crossen & Chamberlain, Cleveland, for defendant-appellants.
    (DOYLE P. J., HUNSICKER J., STEVENS J. of the 9th District sitting by designation in the 8th District)
   OPINION

By HUNSICKER J:

In this appeal on questions of law, the cause is submitted to this court upon an agreed statement of facts, filed as a bill of exceptions, and the briefs and oral arguments by respective counsel for the parties.

The facts are that:

The Ohio Public Service Company (now Ohio Edison Company) entered into a written contract with Fred L. Nelson of Dayton, Ohio, a partnership, to do some pole line clearance along a certain right of way of The Ohio Public Service Company, a public utility, engaged in the transmission of electric power. The written contract contained, among other clauses, the following:

“7. Contractor agrees, in consideration of the work awarded to it by Principal, to indemnify and save harmless Principal from any and all loss, cost, damage, or expense to persons or property, including the injury or death suffered by persons employed by said Contractor or members of the public, growing out of or in any way connected with the performance of the work awarded to Contractor.
“8. Contractor further agrees to furnish to Principal prior to the commencement of the work covered by this agreement, certificates, or renewals thereof, as issued by the Industrial Commission of Ohio, certifying that the Contractor-Employer has paid into the State and Occupational Disease Fund for a period to end subsequent to the completion of said.work.
“9. Principal shall not require Contractor to purchase, Public Liability and Property Damage Insurance naming Principal as an additional assurred; Contractor may, however, purchase insurance to cover the indemnifying provision of this agreement.”

One Ervin Franklin Snyder, an employee of Nelson, while acting in the course of his employment and performing services contracted for by the written agreement between Nelson and the Service Company, came in contact with a high voltage power line maintained by the Ohio Public Service Company and was instantly killed. Workmen’s Compensation was paid pursuant to the laws of Ohio.

The administrator of the estate of Snyder brought an action for wrongful death against the Ohio Public Service Company, alleging negligence on the part of said Service Company. The Service Company demanded that Nelson undertake the defense of said action and idemnify the Service Company for all loss or damage incurred or to be incurred by reason of the death of Snyder. Nelson refused to defend that action, and the appellee herein, St. Paul Mercury Idemnity Company, as the insurer of The Ohio Public Service Company, undertook the defense of the action brought by the administrator of Snyder’s estate, and in good faith paid to the administrator $2,000.00 in settlement of the wrongful death action, and, in addition, thereto $677.00 for necessary costs and attorney fees.

St. Paul Mercury Idemnity Company, by written assignment became subrogated to all rights of The Ohio Public Service Company and when Nelson refused to pay the appellee herein upon demand therefor, an action was filed in the Common Pleas Court of Cuyahoga County to recover from Nelson the amount so paid by the Indemnity Company.

The trial court determined that the written agreement entered into by The Ohio Public Service Company and Nelson, and especially paragraph 7 thereof, set out above, was an indemnity agreement and covered suits for wrongful death such as is found by the facts in the instant case. From the judgment so rendered, Nelson has appealed to this court.

The principal question in the case revolves around the interpretation and effect of paragraph 7 of the contract entered into between The Ohio Public Service Company and Nelson. If the written agreement and especially paragraph 7 covers suits for wrongful death and if the words “from any and all loss * * * including injury or death” covers indemnity of the Service Company for its own negligence, then the judgment entered by the trial court must be affirmed.

It is to be observed that this contract is not one between an employer and his employee, whereby the employer seeks to relieve itself from responsibility for injuries sustained by the employee. This is a contract which does seek to provide that the partnership doing business as Fred L. Nelson of Dayton. Ohio, shall indemnify the Ohio Public Service Company for any Loss or damage to an employee of the partnership known as Fred L. Nelson while such partnership is engaged in doing work for the Utility Company. Does such a contract cover a wrongful death action, where such death is cause by the claimed negligence of the Utility Company?

There is no dispute between the parties to the instant action as to the law which should be applied in the situation we have here. The recent case of Kay v. Pennsylvania Railroad Compony et, 156 Oh St 503 (wherein the rule pronounced in George H. Dingledy Lumber Co. v. Erie Rd. Co., 102 Oh St 236, was approved and followed) establishes the law of Ohio with respect to contracts of indemnity such as we find herein.

The court there said:

“1. Contracts of indemnity purporting to relieve one from the results of his negligence must be construed strictly.
“2. The intention to provide such indemnification must be expressed in clear, unequivocal terms.”

If, then, we strictly construe the provisions of the contract, do we find that appellant Fred L. Nelson is liable thereunder?

When we read paragraph 7 of the contract, we find that it says that Fred L. Nelson will “indemnity and save harmless” the Utility Company “from any and all loss * * * including * * * death suffered by” an employee of Fred L. Nelson “growing out of or in any way connected with” the work which Fred L. Nelson is doing for the Utility Company. Although no specific mention is made of the negligence of the Utility Company, yet the contract, when it calls for indemnity for any and all loss in any way connected with the performance of the work awarded to Fred L. Nelson, clearly includes loss arising as a result of such negligence. See Annotation in 175 A. L. R. 12, et seq.

The Ninth District Court of Appeals, in the case of Direct Transportation Company v. Baltimore & Ohio Railroad Company, 96 Oh Ap 204, No. 4374, Summit County, decided November 25, 1953, discussed at some length the right to contract for exemption from liability for the consequences of negligence, and the court there said:

. “2. In general, contracting parties may bargain for exemption from liaDility for the consequences of negligence which does not fall greatly below the standard established by law for the protection of others against unreasonable risk of harm, except that it is illegal to bargain
“(a) for exemption from liability for the consequences of a wilful breach of duty.
“(b) if the parties are employer and employee, and the bargain relates to negligent injury of the employee, in the course of employment.
“(c) if one of the parties is charged with a duty of public service, and the bargain relates to negligence in the performance of any part of its duty to the public, for which it has received or been promised compensation. However, a bargain by a common carrier or other person charged with a duty of public service, limiting to a reasonable agreed valuation the amount of damages recoverable for injury to property by a non-wilful breach of duty, is lawful.”

The fact that the dependants of the deceased workman herein applied for and received Workmen’s Compensation benefits by reason oí the death, does not bar an action against a third person tort-feasor for the wrongful death of such workman. Judge Doyle of this court, in the case of Hartford Accident & Indemnity Company v. Procter & Gamble Co., 91 Oh Ap 573, said:

“1. Workmen’s compensation statutes relate generally to the legal connection between employer and employee, and do not affect the right of an injured workman to sue a third person tort-feasor for injuries received through negligence in the course of his employment. Workmen’s compensation statutes in New York in terms preserve this common-law right of an employee.”

The action by the administrator against the utility company to recover for the benefit of the estate of Snyder was properly instituted, and when the appellee herein, St. Paul Mercury Indemnity Company, under the terms of their contract with the utility company settled this claim of the estate of Snyder, then the partnership of Fred L. Nelson by the terms of its contract of indemnity with the Utility Company became obligated to pay the loss so incurred

We, therefore, determine that by the plain, unambiguous terms of the contract in the instant case, Fred L. Nelson of Dayton, Ohio is required to pay to St. Paul Mercury Indemnity Company the subrogee of The Ohio Public Service Company, for the loss sustained by reason of the settlement by the St. Paul Mercury Indemnity Co., of the claim of the estate of Ervin Franklin Snyder, deceased (an employee of Fred L. Nelson) which claim arose by reason of the death of said Snyder, although such death was caused by the alleged negligence of The Ohio Public Service Company.

We have examined all claimed errors, and find none prejudicial.

The judgment is affirmed. Exceptions noted. Order see journal.

DOYLE PJ, STEVENS J, concur.


author: By THE COURT:

text:
    PIPER et, Plaintiffs-Appellants, v. CHANEY et, Defendants-Appellees.
    Ohio Appeals, Second District, Miami County.
    No. 486.
    Decided December 10, 1953.
    Kusworm and Kusworm, Dayton, and Ellis W. Kerr, Troy, for Walter G. Pipe-: and John R. Piper, plaintiffs-appellants.
    S. R Turner (now of the firm of Lilley, Turner & Gaier), and Berry, McCulloch, Felger & Fite, Piqua,. for defendants-appellees.
   OPINION

By THE COURT:

This is an appeal on questions of law from an order of the Common Pleas Court sustaining defendant’s motion for a new trial and setting aside the verdict of a jury as being against the weight of the evidence. The error assigned is that the court abused its discretion in setting aside the verdict.

Two grounds for setting aside the will were assigned, mental incompetency of the testator and undue influence practiced upon him to induce the execution of his will.

Learned counsel concede that the judge who heard the motion for a new trial was authorized to pass upon it, and recognize that the test that must be applied to his action is whether he abused his discretion in granting the motion.

We have read this record in its entirety, and the opinion of the trial judge in sustaining the motion. He was not the judge who tried the case. This, of course, denied 'him certain advantages which were accorded to the trial judge; the atmosphere of the trial, the appearance and demeanor of the witnesses. This is urged in support of the error assigned.

Some contention is also made that although there were two issues before the jury, namely, mental incompetency and undue influence, the trial judge in his original written opinion devoted his consideration solely to the question of the incompetency of the testator. He gave no consideration to the other issue, which may have been determinative with the jury. However, defendants specifically directed attention to this omission, whereupon the court passed upon the issue of mental incompetency.

Abuse of discretion has been variously defined, but one of the late expressions of our Supreme Court which is controlling is found in Steiner v. Custer, 137 Oh St 448, 31 N. E. 2d 855, second syllabus:

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

We have many times discussed the meaning and application of “discretion of a trial judge”. State v. Wright, 59 Oh Ap 191; Mutual Home and Savings Association v. Merion, Supt., 67 Oh Ap 440, 449, 34 Abs 281, 286; Davies v. Columbia Gas and Electric Corp., 51 Abs 372; State v. Tancer, 62 Abs 367. Quite recently Judge Miller of this Court, in McNeill v. McNeill et, 46 Abs 244. 68 N. E. 2d 338 defined “abuse of discretion” in somewhat different language but substantially the same in meaning as carried into the quoted syllabus of Steiner v. Custer, supra. The Supreme Court has followed Steiner v. Custer in Klever v. Reid Bros. Express, Inc., et, 154 Oh St 491, 495; State ex Shafer v. Ohio Turnpike Commission, et, 159 Oh St 591.

For a case where the reviewing court was considering the action of a trial judge in sustaining a motion for a new trial on the weight of the evidence on the rule applicable see Boelter v. Mown, 89 Oh Ap 292.

Even though we should determine that the judge erred in weighing the convincing effect of facts developed in this case, it would not justify a legal finding by^this Court of an abuse of discretion. A critical examination of the attitude of the court, in the light of the record, will not support the conclusion that he approached the question for his determination in an unreasonable, arbitrary or unconsionable attitude. It is manifest that he had full and correct conception of the law controlling his authority and right to grant the motion and that he acted accordingly.

The appeal will be dismissed.

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


author: By MILLER, J.

text:
    STATE, ex rel SEKULA, Relator, v. INDUSTRIAL COMMISSION et, Respondents.
    Ohio Appeals, Second District, Franklin County.
    No. 5154.
    Decided November 18, 1954.
    Traxler and Beil, Youngstown, for relator.
    Hon. C. William O’Neill, Attorney General, Paul Tague, Jr., Assistant Attorney General, Columbus, for respondent, Industrial Commission.
    Manchester, Bennett, Powers & Ullman, Paul J. Fleming, of Counsel, Youngstown, for respondent, Youngstown Sheet & Tube Co.
   OPINION

By MILLER, J.

This is an original action in mandamus wherein the relator is seeking an order commanding the respondent, the Industrial Commission of Ohio, to make an award and to allow and pay to Dr. T. K. Golden his claim for medical services rendered to the relator for injuries received in the course of his employment.

After setting forth the duties of the Commission and that the employer, the Youngstown Sheet & Tube Company, was a self-insurer under the Workmen’s Compensation Act, the petition sets forth the relator’s injury; that treatment was furnished by the employer which was not satisfactory, and that a motion was filed with the Commission for permission to employ said Dr Golden, an orthopedic specialist, for examination and further treatment. In answer to this motion it appears that the medical department of the employer offered to send the relator to a different orthopedic specialist for such services, but this offer was declined. The petition alleges further that the relator’s motion was overruled by the Commission.

A demurrer is now filed to the petition by each of the respondents alleging that the facts stated therein do not constitute a causé of action. The question presented appears to be as follows: Does an injured employee of a self-insuring employer have the right to select his own physician or surgeon and to be reimbursed for medical expense so incurred, where the employer has been authorized by the Industrial Commission of Ohio to furnish surgical and medical service to its employees, and the employer is ready, able and willing to provide competent service to its employees?

The pertintent part of the statute relating to self-insurers is found in §1465-69 GC (§4123.35, R. C.), to wit:

“* * * Provided, that such employers and publicly owned utilities who will abide by the rules of the commission and who may be of sufficient financial ability to render certain the payment of compensation to injured employees or the dependents of killed employees, and the furnishing of medical, surgical, nursing, and hospital attention and services and medicines, and funeral expenses, equal to or greater than is provided for in §§4123.52, 4123.55 to 4123.62, inclusive, and 4123.64 to 4123.67, inclusive, of the Revised Code, and who do not desire to insure the payment thereof or indemnify themselves against loss sustained by the direct payment thereof, may, upon a finding of such fact by the commission, elect to pay individually such compensation, and furnish such medical, surgical, nursing, and hospital services and attention and funeral expenses directly to such injured employees or the dependents of such killed employees. * * *”

It will be noted that this section requires a self-insuring employer to furnish medical treatments equal to or greater than is provided in §4123.52, et seq. of the Revised Code. Since there is no claim made that the employer’s orthopedic surgeon was not qualified to provide the services required, we do not think that it could be said that the employer failed to furnish adequate medical services. The word “furnish” is defined in Webster’s New International Dictionary as “To provide for; to provide what is necessary for; to fulfill or satisfy the needs of.” The identical question presented here was answered by the Attorney General on December 16, 1943, in opinion No. 6546 in which he held:

“The Industrial Commission of Ohio does not have authority to grant an injured employee of a self-insuring employer the right to select medical, hospital or nursing services of his own choice, except in an emergency where the employer is unable to select and furnish the services.
“Furnishing medical, hospital and nursing services by a self-insuring employer that are clearly inadequate or incompetent does not give an in-jured employee the right to substitute services of his own choice so as to render the employer liable therefor, unless the employee has first secured authorization from the Industrial Commission to engage said services.”

This opinion is in accord with our views on the question. But it is contended by the relator that the provisions of §1465-69 GC (§4123.35, R. C.) pertaining to self-insurers is unconstitutional and invalid. Citing Article II, Sections 5 and 35. We find that the constitutionality of the cited section of the Code has been upheld by our Supreme Court in the case of State, ex rel, v. United States Fidelity & Guaranty Co., 96 Oh St 250, the syllabus of which we quote:

“Section 22 of the workmen’s compensation act (103 Ohio Laws, 80) now §1465-69 GC, authorizing ‘employers who will abide by the rules of the state liability board of awards and as may be of sufficient financial ability or credit to render certain the payment of compensation to injured or killed employees or their dependents, to pay individually the compensation provided in the act directly to injured employees or the dependents of killed employees’, is a valid legislative enactment and is not in conflict with any of the provisions of the state or federal constitutions.”

Also, in Thornton v. Duffy et, 99 Oh St 120, Par. 3 of syllabus:

“The act of March 20, 1917 (107 O. L., 157, 159), amending §1465-69 GC, is a valid and constitutional exercise of the authority conferred upon the general assembly of Ohio by §35 of Article II of the Constitution of Ohio, and applies to all employers of labor mentioned in §1465-60 G.C.”

We are therefore of the opinion that the petition fails to state a cause of action, and the demurrers will be sustained.

WISEMAN, PJ, and HORNBECK, J, concur.


author: By MILLER, Circuit Judge.

text:
    McCULLOUGH TRANSFER CO. v. VIRGINIA SURETY CO., INC.
    United States Court of Appeals, Sixth Circuit.
    No. 11929.
    Decided May 27, 1954.
    Charles J. Cole, Toledo, for appellant.
    Roger H. Smith, Toledo, for appellee.
    Before SIMONS, Chief Judge, MILLER, Circuit Judge and FORD, District Judge.
   OPINION

By MILLER, Circuit Judge.

Appellee, Virginia Surety Company, brought this action to recover from the appellant, McCullough Transfer Company, insurance premiums totaling $31,254.99, which it claimed were due and owing by the appellant under a retrospective premium endorsement, forming part of a policy of motor vehicle liability insurance issued to the appellant.

Upon issuance of the policy by appellee on September 19, 1949 appellant paid $22,000 as a premium deposit and by the terms of the retrospective premium endorsement, retrospective adjustments were to be made at the end of successive 6-month periods as long as the policy should remain in effect. The policy was cancelled on February 4, 1951. The complaint alleged that while the policy was in effect the premiums due by reason of the retrospective premium endorsement totalled $53,254.99, which, credited with the payment of $22,000, left an unpaid balance of $31,254.99, which the appellant refused to pay.

The appellant claimed that the retrospective endorsement was not filed with or approved by the superintendent of state insurance of Ohio, as required by the Ohio statute, and was therefore illegal against public policy, and void. In a pre-trial conference, appellee admitted that it had not complied with the Ohio statute, whereupon appellant moved for summary judgment. The District Judge overruled appellant’s motion for summary judgment and entered judgment for appellee in the amount prayed for. The printed appendix does not contain any motion by the appellee for summary judgment in its favor, or admissions by the appellant with respect to certain factual issues raised by its answer, or the agreements reached in the pre-trial conference, but the judgment refers to certain admissions, and appellee’s brief states that as a result of the pretrial conference it was agreed that the sole issue in the case was the legality of the retrospective premium endorsement, and that the case would be disposed of on appellant’s motion for summary judgment. Such an agreement should properly be reduced to writing, made a part of the record, and be included in the printed appendix to counsel’s brief, but since the case has been practiced upon the basis of such an agreement, it will be likewise considered on this review. Rule 61. Rules of Civil Procedure, 28 U.S.C.A.

Sec. 9592-21 (a) and (h), of the Ohio General Code (§3937.03 R. C.), provide as follows:

“(a) Every insurer shall file with the superintendent every manual of classifications, rules and rates, every rating plan and every modification of any of the foregoing which it proposes to use. * * *”
“(h) On and after January 1, 1948 no insurer shall make or issue a contract or policy except in accordance with filings which are in effect for said insurer as provided in this act. * * *”

Sec. 9592-33 GC (§§3937.16, 3937.99 R. C.), provides:

“Any person or organization, who wilfully violates any provision of this act, shall be deemed guilty of a misdemeanor and shall upon conviction thereof, be punished by a fine not to exceed $500.00 for each such violation. The superintendent may suspend the license of any rating organization or insurer which fails to comply with an order of the superintendent within the time limited by such order, or any extension thereof which the superintendent may grant. * * *
“No penalty shall be imposed and no license shall be suspended or revoked except upon a written order of the superintendent, stating his findings made after a hearing held upon not less than ten days’ written notice to such person or organization specifying the alleged violation.”

Sec. 9592-35 GC (§3937.17 R. C.), provides:

“This act shall be liberally interpreted to the end that insurance rates shall not be excessive, inadequate or unfairly discriminatory, and cooperative action among insurers in rate making and in other matters within the scope of this act shall be authorized and regulated. * * *”

Appellant relies upon the specific wording of §9592-21 (h), GC (§3937.03 R. C.), which it contends makes illegal any contract of insurance issued by an insurance company which has not complied with the filing requirements of §9592-21 (a) GC (§3937.03 R. C.), which appellee admits it had not done.

It is agreed between the parties that the business of insurance is affected with a public interest and subject to regulations by the state. But we do not agree with appellant’s contention that it necessarily follows that a failure to comply with the provisions of a regulatory statute relating to insurance renderes null and void a policy of insurance freely entered into by the parties. In order to determine whether a contract made contrary to a penal statute is illegal and void, the statute must be considered as a whole to ascertain whether it was the intention of the Legislature that the statute have such effect. Warren People’s Market Co. v. Corbett & Sons, 114 Oh St 126, 132, 151 N. E: 51.

There is no express provision in the foregoing sections of the Ohio General Code which states that a failure to comply with any of the provisions contained therein renders an insurance contract void. If such was the intent of the legislature it could easily have said so in express words. On the contrary, the statute provides a $500.00 fine for a wilful violation of the act and that the license of any insurer who fails to comply with an order of the superintendent may be suspended. The provisions of §9592-35, GC (§39-37.17 R. C.), calling for a liberal interpretation of the act, and the provisions of §9592-33 GC (§§3937.16, 3937.99 R. C.), dealing with the procedure by which the license of an insurer may be suspended indicate regulation of the insurance business rather than prohibition against engaging in such business In our opinion, a consideration of the several provisions of the code results in the conclusion that it was the purpose of the Legislature to regulate the insurance business by the imposition of a penalty rather than by declaring illegal and void such contracts of insurance as might be issued while the insurer was not in compliance with the provisions of the statute. This conclusion is in accord with the rulings of the Ohio Supreme Gourt in Warren People’s Market Co. v. Corbett & Sons, supra, and Commercial Credit Co. v. Schreyer, 120 Oh St 568, 166 N. E. 808, 63 A.L.R. 674; which we consider controlling on the issue. See also Strong v. Darling, 9 Ohio 201; Union Mutual Life Ins. Co. v. McMillen, 24 Oh St 67; Manhattan Ins. Co. v. Ellis, 32 Oh St 388.

Nor do we consider the contract as void as against public policy. A contract is not void as against public policy unless it is injurious to the public or contravenes some established interest of society. Gugle v. Loeser, 143 Oh St 362, 367, 28 O.O. 318, 55 N. E. (2d) 580. The insurance contract involved in this case, under which appellant has had the benfit of full performance by the appellee, is clearly not of that nature. Warren People’s Market Co. v. Corbett & Sons, supra, 114 Ohio St. at pages 138, 142, 151 N. E. at pages 54, 55; Twin City Pipe Line Co. v. Harding Glass Co., 283 U. S. 353, 51 S. Ct. 476, 75 L. Ed. 1112.

The judgment of the District Court is affirmed.


text:
    ROOT, Plaintiff-Appellant, v. O’BRIEN MILLING COMPANY et, Defendants-Appellees.
    Ohio Appeals, Second District, Darke County.
    No. 715.
    Decided December 10, 1953.
    Jesse K. Brumbaugh, Greenville, and Landis, Ferguson, Bieser & Greer, Dayton, By Mr. Warren A. Ferguson, Of Counsel, for plaintiff-appellant.
    Spidel, Staley & Hole, Greenville, By Mr. Wilbur Spidel, Of Counsel, for defendant-appellee, The O’Brien Milling Company.
    Howard G. Eley, Greenville, and Pickrel, Schaeffer & Ebeling, Dayton, by Mr. H. Thomas Haacke, Jr., Of Counsel, for defendant-appellee, Helen Flory.
   OPINION

By THE COURT:

This is a law appeal.from the judgment of the Common Pleas Court granted in favor of each of the defendants upon motions for instructed verdicts duly made at the close of plaintiff’s case in chief. The action is one for damages arising out of the collision between two automobiles and a truck at the intersection of Pine Street and Harrison Avenue in Greenville, Ohio.

The defendant, Helen Flory, was charged with four specifications of negligence, to-wit:

1. That she operated her automobile at a speed that was greater than was reasonable and proper under the conditions then existing, to-wit: 35 miles per hour.

2. That she failed to keep a lookout so as to be able to avoid the-collision.

3. That she operated her automobile to the left of the center of Pine Street.

4. That she failed to have sufficient headlights on her automobile to disclose a person or substantial object on the highway at a distance of 500 feet.

The defendant, O’Brien Milling Company, is charged with the same acts of negligence as specified above in items 1, 2 and 4. It is further charged with failure to have its truck under control so as to bring the same to a stop and thereby avoid the injury-to the plaintiff.

The record discloses that Pine Street runs in a general east and west direction and carries traffic flowing over the following highways: U. S. No. 127, U. S. No. 36, Ohio No. 49 and Ohio No. 121. Harrison Avenue runs in a north and south direction and had a stop sign applicable to vehicles approaching Pine Street. At the time of the collision the plaintiff was a passenger in the right rear seat of a car being driven by her husband and two other parties were also passengers in this automobile. The Root car was proceeding north on Harrison Avenue, the Helen Flory car was proceeding eastwardly on Pine Steet and the truck of the defendant, The O’Brien Milling Company was proceeding in a westerly direction on Pine Street at the time of the collision. When the evidence is reviewed in its most favorable light towards plaintiff we find it reveals that at the time of the collision'there was a downpouring rain which made visibility very poor; in fact, so bad that one could scarcely see through the windshield when the wiper was in operation; that the plaintiff’s automobile stopped at the intersection and then proceeded across Pine Street; that when the defendant’s front wheels had crossed the center of Pine Street it was struck at or about the middle of its left side by the automobile driven by the defendant, Helen Flory; that only a few seconds later the plaintiff’s automobile was struck by the truck owned by The O’Brien Milling Company, which was coming from the opposite direction on Pine Street and struck the plaintiff’s automobile on its right side, which was crushed in and badly bent.

There was no evidence as to the speed of the defendants’ vehicles, but the evidence does disclose that both were lighted and seen by several witnesses before the collision, and were proceeding on their right side of the street. A witness in the front seat of the plaintiff’s car testified that as it approached the center of Pine Street he looked to the left and saw the Flory automobile approaching and it was about 30 or 40 feet away. He also testified that the visibility was such that a light could be seen at a distance oí approximately 150 feet.

The appellant urges that upon giving consideration to the driving conditions and the damages done to the automobile in which the plaintiff was a passenger, the jury might reasonably infer that both of the defendants were operating their vehicles at a speed that was greater than was reasonable and proper. In order that a case may be submitted to a jury there must be some evidence in a substantial form from which a reasonable mind can draw a logical deduction. Hamden Lodge v. Gas Co., 127 Oh St 469. We do not think the evidence offered on behalf of the plaintiff meets this requirement. It should be noted that negligence is never presumed and the mere fact that an injury has been sustained does not give rise to a presumption or inference of negligence. 29 O. Jur. 622. The presumption always attends that ordinary care was exercised and such presumption must prevail until overcome by proof. 29 O. Jur. 625.

We find no evidence in the record which sustains any of the acts of negligence charged in the petition, and the judgment will be affirmed.

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


author: PER CURIAM:

text:
    KNIGHT, Plaintiff-Appellant, v. KNIGHT et, Defendants-Appellees.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22828.
    Decided September 21, 1953.
    Beach & Warner, Cleveland, for plaintiff-appellant.
    Hauxhurst, Inglis, Sharp & Cull, Cleveland, E. H. Hauenstein, Akron, for defendant-appellee.
   OPINION

PER CURIAM:

This is an appeal on questions of law from the Common Pleas Court of Cuyahoga County, wherein the action was dismissed at costs of plaintiff without prejudice to her right to file such proceedings as she may deem proper in the Common Pleas Court of Summit County.

Both plaintiff and the defendant are residents of this county and have been since the time of the institution of the action September 1. 1945. The parties were formerly husband and wife and residents of Summit County Ohio, where, through proceedings there instituted and concluded they were divorced on December 11, 1940, at which time the trial court approved a separation agreement of the parties which was embodied in the journal entry. The action instituted in this county by the wife has for its purpose the enforcement of the provisions of the separation agreement made part of the divorce decree entered in Summit County. The most important part of the separation agreement incorporated in the decree approved by the court, is as follows:

“2. For the support and maintenance of second party, first party agrees that he will turn over to her sixty per cent of his earnings monthly or at such stated intervals which may be agreed upon; second party agreeing that out of the sum so received she will make the installment payments upon first party’s automobile and similar payments upon such automobiles as may hereafter be bought by first party with second party’s approval and consent.”

The defendant, Russell K. Knight, in his amended answer claimed fraud and duress in the execution of the separation agreement and in the entry of the divorce decree but upon trial of the instant case no evidence was tendered in support of these allegations, the defendant relying solely upon questions of law raised by successive demurrers to plaintiff’s petition in which it was contended:

“1. That the common pleas court out of this county had no jurisdiction to enter judgment upon the divorce decree entered in Summit County; and
“2. That the petition did not state a cause of action or more particularly that the agreement to pay 60% of future wages was too indefinite to be enforcible or that its enforcement was against public policy.”

The issues presented by the demurrers as indicated by the record had previously been raised during tenuous course of this litigation The common pleas court in 1946 (Orr, J) entered judgment against defendant, but this judgment was reversed by this Court and the cause remanded to the trial court with instructions to rule upon the demurrer. Thereafter, the case came on before another Judge of the Common Pleas Court (Blythin, J) who overruled the demurrer on July 21, 1952, at which time he filed a memorandum opinion in support of his decision. Thereafter, plaintiff filed a supplemental petition in June, 1952, to cover the accruals of maintenance to which another demurrer was interposed which was overruled by another Judge (Lybarger, J.) of Common Pleas Court. Thereafter, the case came on for hearing before another member of the Common Pleas Court (Rutherford, J.l sitting in this Couty by assignment, who tentatively overruled the demurrer and proceeded to hear evidence. The record now before us shows proof of the judgment of the Summit Couty court and a stipulation of the parties showing that during the period in question here, the defendants earnings had averaged $300,000 per month.

At the close of the hearing, the trial court in reversing his ruling on the demurrer, dismissed the petition at plaintiff’s costs without prejudice as above indicated.

Error is assigned as follows:

“The order and judgment of the common pleas court dismissing plaintiff-appellant’s petition and supplemental petition for want of jurisdiction to entertain the same, is contrary to law and prejudicially erroneous.”

In the course of an opinion rendered by the trial judge, he stated as follows:

“It appears, however, that a prerequisite of a judgment to be enforced in a foreign court whether of another state or another county of the same state, is that said judgment must be:
(a) final
(b) certain in amount
(c) unconditional
(d) not vacated
(e) one on which execution has not been superseded in the state or county which rendered it.
See Restatement of Law - Conflict of Laws. Nos. 434, 435, 436, 437, 438. Also Dunn v. Hild et al, Superior Court of Penna. 189 Atl. 747 and Croker v. Croker, 168 N. E. 450.
In applying these tests, to the judgment as rendered in Summit County, the court finds that said judgment is final under the holding of the Supreme Court of this State. See McPherson v. McPherson, 153 Oh St 82; 90 N. E. (2d) 675; also, Kettering v. Kettering, infra.
This court believes said judgment is also unconditional. It was not alleged in the petition to which demurrer was overruled that it was a valid and subsisting judgment as of Sept. 1, 1945, although from the evidence and further pleading it does appear that it was a valid and subsisting judgment as of that date.”

However, the trial court found that the judgment providing that the first party agrees that he will turn over to second party sixty per cent of his earnings monthly is not sufficiently certain in amount. We think that this was error prejudicial to the rights of plaintiff herein. In our opinion the provision is sufficiently certain in amount in view of the stipulation of the defendant’s earnings during the period in question. All that is required is a mathematical computation to arrive at the amount due. In. this connection we think that the holding of Blythin, J., in overruling the demurrer was correct and has application to the issues here presented when he said:

“The court must hold that as to accrued installments the authorities are clear to the effect that they may be reduced to judgment in a jurisdiction foreign to the original one where nothing is required beyond proof of a final order for the payment of money plus a mathematical calculation of the amount due.”

See Armstrong v. Armstrong, 117 Oh St 558, 160 N. E. 34; McPherson v. McPherson, supra.

In our opinion it is just as simple to compute sixty per cent of the stipulated earnings as it is to multiply the weekly payments provided for. in the decree by the number of months in which defendant is delinquent. The earnings being stipulated, the amount due on a percentage basis is easily ascertainable. The mathematical calculation is just as certain in result m one case as in the other.

The trial court makes several references and suggestions as to alternative procedures in Summit County. These suggestions are obiter dicta and are not before us. We conclude that both parties to the action having peen residents of this county for a period of years, that the decree in the main being definite and certain, the courts of this county have jurisdiction of the parties and of the subject matter.

Complaint is made in the brief of the appellee concerning the terms of the settlement as disclosed by the agreement. We think the defendant having entered into said agreement and having himself originally presented it to the court for approval may not now complain of its terms in the absence of proof of fraud or changed circumstances. The defendant cannot now challenge the jurisdiction of the common pleas court or of this court, especially where the court found, upon the undisputed facts, that the judgment was final, unconditional, valid and subsisting as of the date of September 1, 1945.

For the reasons stated the judgment of the common pleas court is reversed and the cause is remanded for further proceedings according to law. Exceptions noted. Order see journal.

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


author: By HORNBECK, PJ:

text:
    STATE ex rel HOLLIS, Plaintiff-Appellee, v. SPROAT, Defendant-Appellant.
    Ohio Appeals, Second District, Miami County.
    No. 467.
    Decided October 22, 1952.

      Robert P. Fite, Piqua, for plaintiff-appellee.
    Bernard S. Keyt, Piqua, and Leo H. Faust, Troy, for defendant-appellant.
   OPINION

By HORNBECK, PJ:

This is an appeal from a judment of the Common Pleas Court affirming a judgment of the Municipal Court of Piqua, Ohio, which judgment was entered upon a verdict of a jury finding defendant guilty of bastardy as charged in the complaint against him.

Two errors are assigned. The first is directed to the general charge to the jury and the second to certain remarks of the trial judge during the trial.

The first objection relates to the following language set up in the brief as taken from the general charge of the Court.

“We charge you that you are to determine by your verdict, whether or not the defendant. Vearl Sproat, is the reputed father of the complainant’s illegitimate child, which you have seen in this court.”
“We charge you that it is proper for the child in question to be exhibited to you, as such exhibition is merely corroborative of the testimony of the complainant.”

An examination of the charge in the bill of exceptions discloses that the second paragraph above was deleted from the charge and not read to the jury. We, therefore, test the instruction as set in the first paragraph.

Appellant insists that the observation of the Court and the identification of the child in probability created a sympathetic attitude of the jury toward the plaintiff. It is true, technically, that there was no testimony as to the identity of the child to which the court referred and the reference was unfortunate. However, we find nothing in the bare statement in the charge which can be said to have operated to the prejudice of the appellant. The latter part of the instruction, had it been given to the jury, would present a much more serious question as to the prejudicial effect of the language employed.

The second objection to the charge is to the following language:

“You will treat the testimony which has been given to you by Dr. Wilkins as you treat the testimony given by other witnesses. The fact that Dr. Wilkins has rendered an expert opinion in this case does not bind this jury. You may consider it for what it is worth but you are not bound by it.” Dr. Wilkins had testified that a certain specimen of sperm claimed to have been emitted by the defendant indicated that it was sterile. Vigorous objection was made to the admission of the testimony for the reason that it did not appear definitely that it came from the defendant. The trial judge had concluded his general charge when he said:
“Now, we ask counsel in this case what, if anything, has been omitted from this charge and now we ask and invite them to call the court’s attention to any omissions or errors we have made in this charge.”

Counsel for the plaintiff then requested the court to charge as to the expert testimony and the language objected to is found in this additional charge. No request was made for any further charge by either of counsel. The court had charged the jury upon the weight of the evidence, the credibility of witnesses and as to its prerogative concerning its right to weigh the testimony. The charge, of course, must be taken as a whole, so doing, we are satisfied that the jury was not misled but must have understood the instruction as defining its right to weigh and evaluate the testimony of the doctor even as it did the testimony of other witnesses.

The second error assigned relates to a statement of the trial judge found at page 109 of the record wherein counsel for plaintiff had moved to strike the testimony of Dr. Wilkins from the record at which time the judge said:

“I said I don’t know whether it (the sperm) is or not and I don’t want the jury to have a ruse pulled on it, either.”

As we have heretofore observed there was considerable altercation between counsel and objections to the acceptance of the line of testimony which was developed through Dr. Wilkins, a clerk at the hospital to whom the specimen was given, the defendant and his wife, who identified the specimen. At one time after plaintiff had objected to the doctor’s testimony, counsel for the plaintiff said:

“For the purpose, I have no objection to the fact that some specimen was left at the hospital by Vearl Sproat, but was that same specimen received by the doctor. I don’t admit that is the sperm of Vearl Sproat.”

Whereupon counsel for the defendant said:

“The doctor knew that sperm was made by Vearl Sproat and I don’t think a ruse like that would be pulled on this jury.”

The court then said:

“This specimen was delivered to the secretary at the hospital.”

In the light of all the subject matter respecting this testimony we are satisfied that all that the trial judge was saying to the jury was that neither he nor counsel wanted the jury to have a ruse pulled on it. His remark that he did not know whether the specimen was that of the plaintiff was not a prejudicial observation.

An examination of the record in this case together with the general charge is convincing that the trial was well conducted both from the standpoint of counsel and the trial judge. The charge is exceptionally clear and complete. We must test the record in the light of the provisions of 13449-5 GC, among which appears the inhibition against the reversal of a conviction,

“for any cause whatsoever unless it affirmatively appears from the record that the accused was prejudiced thereby or was prejudiced from having a fair trial.”

We cannot so hold and are of opinion that the Common Pleas Court committed no prejudicial error in affirming the judgment of the Municipal Court.

Judgment affirmed.

WISEMAN and MILLER, JJ, concur.


author: By THE COURT.

text:
    FERGUSON et, Plaintiffs-Appellants, v. COLUMBUS (City) et, Defendants-Appellees.
    Ohio Appeals, Second District, Franklin County.
    No. 5156.
    Decided November 30, 1954.

      Owen B. Sherwood, Columbus, W. B. McLeskey and C. W. McLesky, Columbus, for plaintiffs-appellants.
    Chalmers P. Wylie, City Attorney, J, Russell Leach, Senior Assistant City Attorney, Columbus, for defendants-appellees.
   OPINION

By THE COURT.

This is an appeal on questions of law from a judgment of the Common Pleas Court sustaining a motion of the defendant, The City of Columbus, for judgment on the pleadings, and dissolving a temporary restraining order.

The pleadings were a petition and an amended joint answer. The petition sought a temporary restraining order and permanent injunction to prevent the city from seizing-and destroying certain pinball games in possession and use of merchants in the City of Columbus, so long as the pin games described in the petition are played for the purpose of amusement only, and not played in any manner in violation of such of the provisions of the ordinances set out in the petition which plaintiffs concede to be valid. A temporary restraining order was allowed by one branch of the Common Pleas Court, as follows:

“The court orders, adjudges and decrees that a temporary restraining order against the defendants be and the same is hereby allowed, as prayed for in the petition, so long as the pin games described in the petition are played for the purpose of amusement only, and so long as the players thereof do not win or receive, directly or indirectly, any merchandise, cash, checks, tokens, freeplays or anything of value as a prize or reward for playing any of said pin games. In the event that any of said pin games are played as gambling devices, i. e., in the event that any merchandise, cash, tokens, checks, freeplays or anything of value is won or received, directly or indirectly, by the player as a prize or reward for playing any of said pin games described in the petition, or played as gambling devices in any way, the defendants shall be permitted to seize them whenever they are so played and to destroy them in accordance with law.”

We analyze the pleadings to determine if they present an issue on any material averment of the petition which, if resolved in favor of the plaintiffs would entitle them to any of the relief prayed.

(1) The petition alleges the corporate and official capacities of defendants and that the officer defendants are charged with the enforcement of the ordinances set out, viz.: Nos. 156-53 and 157-53 of the Ordinances of the City of Columbus, Ohio'; that plaintiffs own and operate 540 amusement games known as pin games of the value of one hundred ninety-nine thousand dollars; that they are operated by merchants in the City of Columbus under contract with the plaintiffs, both parties sharing the profit. All of the foregoing is admitted by the answer.

(2) Plaintiffs further aver that under and by virtue of the above-men-tioned ordinances, the defendant officers threatened to seize the games, to confiscate them and to arrest and imprison the merchants with whom said plaintiffs have contracts. The answer admits that the defendant officers are threatening to seize the games by plaintiffs but by their general denial deny that they are threatening to confiscate the games or to arrest and imprison the merchants with whom plaintiffs have contracts.

(3) The method of operation and play and the mechanical construction of the pin games is set out in detail. This is admitted by the answer.

(4) It is further averred that no merchandise, checks, tokens, or any other objects are released by said game; that there is no return or free-plays; that each players receives identically the same number of balls from each machine for each five cents inserted therein; that the player endeavors to make as high a score as possible and that the play is for amusement only; that said games do not tend to encourage gambling and are not gambling devices within the meaning of said ordinances. All of the foregoing under (4) is denied.

(5) The petition further avers that the ordinances are unconstitutional in that they, 1. Authorize seizure and confiscation of games without proof of their use for gambling purposes; 2. They impair the obligation of contract; 3 They take owner’s property without, due process of law; 4. Are so vague, indefinite and uncertain as to constitute a denial of due process of law; 5. Deny the owners equal protection of the law; 6. Constitute an unreasonable exercise of “Police Power”; attempt to delegate judicial and/or legislative power. All of the foregoing under (5) is denied.

(6) The petition further avers that the ordinances described in the petition amended former ordinances which permitted the licensing and registration of the games owned and operated by plaintiffs. This is admitted.

There are certain controlling legal principles which we briefly state as preliminary to consideration and determination of this appeal.

A motion for judgment on the pleadings should be overruled if the pleadings disclose an issuable fact, or a direct issue, joined upon a single material proposition which would require the introduction of testimony. If the averments of the petition are sufficient to stand against a general demurrer, judgment on the pleadings may not be granted. The motion presents only a question of law. Before the motion may be sustained it must be held, as a matter of law, that the plaintiff has stated no cause of action. Meyer v. Daniel, 147 Oh St 27; Vest v. Kramer, 158 Oh St 76; Zepp v. City of Columbus, 50 Abs. 47. The. court should exercise great caution in sustaining a motion for judgment on the pleadings. Ellis v. Electric Products, Inc., 85 Oh Ap 170. The court is required to construe the pleadings liberally in favor of the party against whom the motion is made. If the petition states no cause of action supporting any relief prayed, the judgment must be affirmed. If the petition states a cause of action and the answer denies any material averment of the petition an issue is drawn which must be resolved upon testimony adduced.

The ordinances involved are lengthy and we shall not undertake to set them out in their entirety, making reference only to those sections which, though numerous and lengthy, it is necessary that we consider to determine the questions presented.

We first give attention to the penalty and confiscation provisions of the sections of the ordinances. Plaintiffs aver that the defendants are threatening to seize the games, to confiscate them, to arrest and imprison the merchants with whom the plaintiffs have contracts. The defendant officers admit only a purpose to seize the games but deny the other averments.

It is our conclusion that the ordinances given full force and effect, if the averments of the petition are proven, do not authorize, nor purport to empower, the defendant officers with the right to confiscate the machines, or to arrest and imprison the merchants with whom plaintiffs have contracts.

It is not contended by defendants that the machines are gambling devices per se, nor will the averments of the petition permit the conclusion that they are now or have been used as gambling devices or played for gain. Although both ordinances contain sections, which we hereinafter discuss, carrying controversial language that, in the main, has provoked this suit neither the penalty nor the confiscation sections of the ordinances incorporate or make a basis for punishment of the merchants or destruction of the machines, the provisions of the ordinances concerning which the principal issues are raised. We shall attempt to demonstrate this.

Section 35.60 of Ordinance No. 156-53, authorizes seizure and destruction of any machines, etc., pursuant to the provisions of 29.39, Chapter 29 of the 1952 Code of Columbus, if the machine

“tends to encourage gambling and may be used in a manner violative of the Code of the City of Columbus, Ohio, 1952, Chapter 29, Sections 29.38 29.38-1, 29.40, 29.42, 29.42-1 and 29.42-2, as they now are, or may hereafter be amended.”

The provisions of Section 29.39, Chapter 29, of the 1952 Code of Columbus authorize destruction only upon adjudication “by the Courts” that such machines were used for the purpose of gambling. Nor does this section, as amended, empower defendants to seize or destroy the machines, if plaintiffs maintain the averments of their petition. It is a prerequisite of this section, to authorize the seizure or destruction of the machines, that they “be used for the purpose of gambling, or on, by, or with which money or any other thing or article of value may be won or lost.” That is to say, that the machines must be per se gambling devices or used for gambling before they can be destroyed. This authorization is as broad but no broader than the law authorizing the seizure and destruction of contraband articles. The section further provides that a machine shall not be demolished or destroyed except upon direction of the Mayor or the Director of Public Safety, “upon it being adjudged by the courts that such machines, devices or instruments were used, kept or intended for the purpose of gambling”. Clearly a valid enactment.

The fine and sentence provisions are all found in Ordinance No. 157-53. The first is Section 29.38-1:

“Whoever in the city permits any game whatsoever to be played for gain upon or by means of any machine, device or instrument, of whatever denomination or name, upon the premises of which he. has the care or possession shall be fined”, etc.

Upon the petition the merchant operators could not be convicted under this section of the ordinance because it is averred that the machines are not played for gain.

The next penal section is 29.42 of Ordinance No. 157-53:

“Any person who shall within the city ***** have in his possession for any commercial use, financial gain, or compensation, any coin or token operated gambling device; shall be guilty of a misdemeanor and upon conviction thereof shall be fined, etc. ***** For the purpose of this section, gambling device’ shall mean and include any device having an automatic pay-off or an automatic free-play mechanism or any device easily convertible to automatic pay-off or free-play by slight changes, in, or addition to the mechanical structure, or any coin or token operated device actually used for gambling purposes, any of which in the operation of such device the player stands a chance to gain an award or property of greater value than the consideration paid.”

The amended petition will not permit of the conclusion that the machines there described in detail are included in the foregoing definition of a “gambling device”, and the section does not authorize the arrest of the merchant operators of the machines.

The next penalty section is 29.42-1:

“Whoever keeps or exhibits for gain a coin-in-slot machine or device, where the merchandise, property or checks obtained by play or operating such machine or device is not for each operation thereof substantially equal in value or where the number of units of property or checks is not, for each operation, equal in number and value, shall be fined”, etc.

This section also makes it an essential to conviction that the machine be kept or exhibited for gain and the other conditions of the section must apply. They are not found or inferable from the petition.

Neither Section 29.38-1, Section 29.42, Section 29.42-1 of. Ordinance No. 157-53, nor Section 25.30 of Ordinance No. 156-53 authorizes the arrest of the merchants with whom defendants have contracted, or the confiscation of any of the machines involved, if the averments of the petition are proven.

The next Section, 29.42-2:

“Whoever exhibits, operates or permits the operation of any machine, device or instrument whether or not it purports to vend or distribute the merchandise or to furnish recreation or amusement, which is caused to operate by the insertion of any token, slug or disc, or exhibits or operates, or permits the operation of any machine, device or instrument which is caused to operate by the insertion of any coin, whether such device, machine or instrument purports to vend or distribute merchandise or to furnish recreation or amusement, which as a result of such operation discharges one or more coins, tokens, slugs, or discs or other memorandum, or which registers odds or a score of the result of operation which makes it possible for one user to receive more value than another user inserting a similar coin shall be guilty of a misdemeanor and upon conviction thereof shall be fined,” etc.

(Emphasis ours)

It will be noted that this section does not specifically authorize the seizure, confiscation or destruction of the machines. It is a penal section providing for fine and imprisonment for violation. Of course, if the operators were convicted for its violation the machines could then of confiscated.

It may also be observed that if Section 35.30 of Ordinance No. 156-53, seizure and confiscation, be given full meaning, it is necessary to its violation that it be proven not only that the operation of the machine tends to encourage gambling but also that it offends against the provisions of one or more of the sections to which reference is therein made. But Section 29.42-2 penal only is in the alternative. That is to say the proof is sufficient if it appear either that the operation of the machine tends to encourage gambling or that any of the other specific terms of the section are violated.

If the plaintiffs can maintain the averments of their petition the merchant operators may not be successfully prosecuted under Section 29.42-2 of Ordinance No. 157-53. There is an issue in the pleadings as to the violation of any of the provisions of this section of the ordinance. The petition avers categorically that the operation of plaintiffs’ machines does not come within any of the inhibitions of the section. It must also be noted that the language of Section 29.42-2 hereafter discussed relating to the registration of a score etc. is different from that employed in Section 29.38 the nuisance section which reads: “Or which registers odds or a score”, without further qualification.

There is no issue on the question whether or not the machines register a score. This is asserted and admitted. However the petition does not admit, nor is it averred by the defendants, that the registration of a score makes it possible for one user to receive more value than another user inserting a similar coin.

As it is alleged that the defendants are threatening not only to seize but to confiscate the machines and to arrest the operators of them, the petition alleging that they have no authority to confiscate and stating facts which, if true, support their contention, the court to which this case was presented, in the light of the other averments of the petition as to the destruction of property and multiplicity of suits, should have exercised its discretion to determine whether or not any injunctive relief should have been accorded plaintiffs in the respect of arrest of the operators and the confiscation of the machines.

The materiality of the issue as to the right of defendant officers to seize the machines under the only other applicable Section, 29.38 of Ordinance No. 157-53, presents a more serious question. We have heretofore stated that there is no provision in Ordinance 156-53 which will support a seizure against the averments of the petition.

Section 29.38 provides:

“It is hereby declared prejudicial to the public good, detrimental to the public morals and a nuisance, for any person to exhibit for the purpose of operating or to permit the operation of any machine, device or instrument in the City of Columbus, Ohio, of whatever kind or description, or by whatever name known or commonly referred to which tends to encourage gambling, or which registers odds or a score, or which is adapted, or may readily be converted into such machine, device or instrument that is adapted, for use in a manner violative of Sections 29.38-1, 29.40, 29.42, 29.42-1, and 29.42-2 of this chapter, and every machine so exhibited or permitted to be operated shall be subject to seizure, by any police officer of the city, and no such machine, device or instrument so seized by any police officer of the city, whether under the authority of this section or Section 29.39 or otherwise, shall be returned to the owner or person claiming the same except pursuant to an order of a court of competent jurisdiction.”

(Emphasis ours)

This section permits the seizure of the machines if they register odds or a score without the qualifying language which is carried into the penalty section of Section 29.42-2. It also authorizes the seizure of the machines if their operation “tends to encourage gambling”, another provision that is not carried into the other penalty provisions of the ordinances. The section further authorizes any police officer to make the seizure, that is to say. if a police officer determines that the machines “tend to encourage gambling” he may seize them. This section of the ordinance not only sets out the essential requisites upon which seizure may be made, but incorporates the other sections of the ordinance and provides that if the machines come within any specific characterization of the section or are violative of any other named sections of the ordinances, they may be seized. We have heretofore referred to Section 29.38-1, Section 29.39, Section 29.42-1, and Section 29.42-2.

Section 29.38, especially as to some of its controverted terms raises the question whether the city has exceeded its police power in its enactment. Here it is admitted that the machines register a score and that is the. only admission that the machines in their operation offend against any of the essentials of the penal provision of the ordinances. Plaintiffs deny specifically that their machines tend to encourage gambling. Inasmuch as the section makes a machine the operation of which tends to encourage gambling subject to the ordinance, it is evident that this may be found independent of the other elements set out in the section which characterize the operation of the machines as a nuisance.

The provision for seizure, of Section 29.38 of the ordinance under consideration, is invoked upon the declaration that operations such as are tpcrCTn defined constitute a nuisance which may be abated. The city has wide police power in defining and declaring what shall constitute a nuisance. Insofar as the section authorizes seizure of machines that are gambling devices, per se, or operate in a manner described which is recognized as gambling there is no doubt as to its validity, but

“The mere declaration in an ordinance that it is enacted to protect public safety, health or morals will not render it valid as being within the police power unless there is some reasonable relation between such purpose and the regulations prescribed.” Youngstown v. Kahn Bros. Bdgs. Co., 112 Oh St 654.

In Williams v. Sandles, 93 Oh St 92, it was held:

“It is competent for a lawmaking body to authorize the summary seizure of property incapable of any except illegal use. The police authority of the state may be properly invested with power and authority to seize such instruments and devices as are designed and intended for use in the commission of crime.” 8 O. Jur. 450, 451.
“A municipality cannot arbitrarily by ordinance declare property to be a huisance and destroy it unless it is, in fact, a nuisance.” 8 O. Jur. 452; Deming v. Cleveland, 22 O. C. C. 1; Borger v. State, 1 O. C. C. N. S. 549, affd. without opinion, 70 Oh St 508; Grundstein v. Ashland, 25 O. N. P. N. S. 493.
“And whether a nuisance-exists is a question of fact frequently to be determined from the evidence.” 8 O. Jur. 452; Bliss v. Krous, 16 Oh St 54.

In Grieb v. Dept. of Liquor Control, 153 Oh St 77, it is said that:

“While, the legislature may authorize the summary confiscation of property incapable of lawful use or of nuisances per se, if property which is innocent in its ordinary and proper use has been used for unlawful purposes, it is beyond the power of the legislature to order its summary forfeiture to the state as a penalty or punishment for such use without giving its owner an opportunity for a hearing.”

The principle of the Grieb case is recognized in the provision in the ordinance wherein confiscation and destruction are authorized.

The Legislature can prohibit only those uses of property which are hurtful to the public, and the inhibited use must be hurtful in a legal sense. State, ex rel. Monnett, v. Buckeye Pipeline Co., 61 Oh St 520.

We do not hold that the ordinance is invalid because it characterizes as a nuisance the operation of a machine, therein described, “which tends to encourage gambling”. It is the method of making determination of this essential of a nuisance as a basis of a seizure of the machine which we cannot support.

There is no authority in the statutory law for the seizure of the machines here under consideration upon the averments of the petition, other than as incident to conviction. Sec. 2915.15 R. C. (§13066 GO, §2915.16 R. C. (§13066-1 GO, §2915.17 R. C. (§13066-2 GC). It follows that the right of the defendant officers to seize the machines, if it exists, must be grounded upon the authority of the ordinance.

It is not necessary to decide the issues of the constitutionality of the ordinances except insofar as is required to determine if upon any theory the sustaining of the motion for judgment on the pleadings was proper. Village of Strongville v. McPhee 142 Oh St 534; American Cancer Society, Inc., v. Dayton, 160 Oh St 114. Even with this limitation we are required to pass upon the provision of the section of the ordinance under consideration, that the registration of a score by the machine constitutes its operation as a nuisance and authorizing seizure if its operation tends to encourage gambling.

We are committed to the opinion that to grant to police officers, or the City Auditor, as in Section 35.33, Ordinance No. 156-33 the power of determining that the operation of the machine here involved “tends to encourage gambling” is too broad and is a judicial power which cannot be delegated to enforcing or licensing officials. Likewise, that in the operation of a machine the mere registration of a score may not be declared to be an element of gambling. State, ex rel. Dana v. Gerber, 79 Oh Ap 1; Stanto v. Tax Commission, et, 114 Oh St 658, 673. We recognize that this was a civil action but the principles announced have application nere. The mere possession of articles which are not gambling devices per se or which are not used for gambling and which the possessor has no intention of using for or in connection with gambling purposes may not be seized.

We consider some Ohio cases pertinent to the question of what constitutes gambling or gambling devices. There are two Ohio cases in which one of the parties is named Krauss. The first, State v. Krauss, 114 Oh St 342; the second, Krauss v. City of Cleveland, et, 135 Oh St 43. As we read them they both had under consideration what was known as the “Morris” Slot Machine.

In the first case, Krauss had been arrested in a Justice of the Peace Court of a township in Hamilton County on a charge that he unlawfully kept and exhibited for gain a certain gambling device, commonly known as as a slot machine, in violation of §13066 GC. It appeared that the machine was operated with 5 cent coins and ejected candy mints and coupons. It also had a sign on it, “Operating this machine with anything but a U. S. 5 cent coin or making two or more consecutive purchases herein positively prohibited”. The testimony was that the prosecuting witness had played the machine three consecutive times, that he received mints on each play, and that in addition on the second play he received checks. These checks were not presented for redemption in merchandise. The defendant was convicted. The Common Pleas and Appellate Courts reversed the judgment and the Supreme Court in a per curiam supported the reversal, saying that until it appeared that the machine was consecutively played, “or some other manner of play, as result of which premiums, checks, or coupons are received, which secure to the player something for nothing, as a result of his play, we fail to see how there can be a violation of the statute.”

The second case was a taxpayer’s suit seeking to declare an ordinance of the City of Cleveland invalid because it authorized licensing of gambling devices per se. The trial court granted the injunction. The Court of Appeals reversed. The case was certified to the Supreme Court and in a per curiam the court reversed the judgment of the Court of Appeals. This case, in our judgment, clearly overruled the pronouncement in the former Krauss case but it was not mentioned in the latter opinion. While the former Krauss case was the law this court followed it. Later, we followed the pronouncement of the second Krauss case.

It is vital to determine just what the second Krauss case held respecting amusement as a thing of value. It clearly appeared that the machines under consideration returned tokens as a matter of chance upon certain plays. The court, speaking at page 46, says:

“However, for a game to constitute gambling, it must be one which is played for gain of money or a thing of value as the prize or reward.”
“Amusement is a thing of value. Were it not so, it would not be commercialized. The less amusement one receives, the less value he receives, and the more amusement, the more value he receives.”

The amusement which the court held to be violative of the applicable statutes is clearly set out at the bottom of page 46 and the top of page 47 of the opinion:

“The minimum amount of amusement offered in each play is that which is offered without any return of tokens. Whatever amusement is offered through the return of tokens is added amusement which a player has an uncertain chance of receiving. This added amount of amusement, the procurement of which is dependent upon chance, is a thing of value.”

(Emphasis ours)

The petition here avers that the machine ejects no tokens or other memorandum and that it can be played for amusement only. There is no added amount of amusement which is the thing of value constituting the prize or reward essential to gambling.

The case of People v. Gravenhorst, 32 N. Y. Supp. (2d) 760, cited by appellee, quotes in part from the second Krauss opinion. This case in which the opinion is well written and extensive, resulting in the pronouncement of twenty-four headnotes, treats of a coin operated pin ball game. However, it is evident that the machine there under consideration was different in many material particulars from the machine described in the petition here. The court stated the question presented, “as to whether or not, from the facts adduced at the trial this court may properly infer that this machine is suited or fit for such illegal use as was contemplated by the statutes”. It appeared that in small print on certain plays the panel on the machine became illuminated and the word “WINNER” appeared. That there were two ways in which the machine could be played and upon the second type the player would be declared a winner if he made prior correct selection of points that the machine would register. It further appeared that there was a slot in the machine that indicated the number of nickels the storekeeper paid to the winner and it was developed that such payments were regularly made to winners. The court held that although slugs or tokens were not actually ejected, the machine by its other notations performed all the functions of such slugs or tokens. It also is stated that by means of insertion of plugs into the back of the machine it could be changed in its operation and made to show less winners and therefore return fewer nickels to the player. The court held that the only conclusion to be reached where the small numerals, the register and the 10 plugs are considered together, is that they form an intricate method or system by which the machine is adapted for use as a gambling device. Of course, there are many other observations in the opinion, some of which tend to support the position of appellees, but the question decided is that which we have indicated and the facts well support the judgment there entered.

The latest case and one worthy of careful consideration because the opinion was written by Judge Bell, formerly a member of our Supreme Court, is, In re Westerhaus Co., Inc., v. City of Cincinnati, appended to appellants brief, and also reported in 68 Abs 293. There were three questions presented in this case, the first, whether the machines in question, pinball machines there considered, constituted gambling devices. Second, the constitutionality of an ordinance of the City of Cincinnati authorizing the seizure and destruction of pinball machines. Third, the right of the City Treasurer to refuse a license based upon violataion of the provisions of the ordinance, covering the operation of pinball machines without judicial determination as to such violation. The principal question was whether or not free-play of the machines constituted them as gambling devices per se. It was contended that the devices involved were gambling devices per se. A machine was in evidence and it was played and the operation thereof carefully considered. The court held that the play was not a game of chance but controlled by the skill of the player. This conclusion, of course, cannot be accepted without proof in this case. As we read the petition it does not aver that the machines here are operated by the skill of the player. It also appeared in the cited case that when the game was completed, if the player scores a sufficient number of points he may play one or more games without the insertion of additional coins. That operation is not in this case. Notwithstanding the free-play aspect of the machines, the court held that they were not gambling devices and granted the injunction. Judge Bell also cites, discusses and differentiates the case of Zellas v. Matowitz, 22 O. O. 261, and held that it had been overruled by Bradford v. Calhoun, 72 Oh Ap 333.

The judgment in Zellas v. Matowitz was based upon the premise of the immediate adaptability of the machine under consideration for gambling purposes. The principle is not involved in this case by the pleadings, although it might develop upon proof and become material as to the right of plaintiffs to any injunctive relief.

We have held in Columbus Legal Amusement Association v. Columbus. 50 Abs 354, that,

“The seizure and destruction of amusement devices, operated by coins or slugs, which may be readily converted into gambling devices, summarily and without process of judicial proceedings does not deprive any one affected thereby of the benefits of due process of law under either the Federal or State Constitution.”

We based our conclusion in part upon the 13th syllabus of People v. One Pin Ball Machine (Ill.), 44 N. E. (2d) 950:

“The right exists, summarily, and without process of judicial proceedings, to seize and destroy contraband articles and to seize articles not inherently illegal when illegally employed.”

It has been an onerous task to digest the ordinances involved but upon the pleadings nothing else would have answered the determinative errors assigned. We respectfully suggest that the ordinances could well be redrafted, simplified and shortened without affecting their central purpose and to the advantage of the City and any one affected.

Issues are made by the pleadings as to the right of defendant officers to seize the machines described in the petition, to confiscate them, or to arrest the merchant operators and as to their threats so to do which required the taking of testimony before the issues could be resolved for or against either party. The court erred in sustaining the motion for judgment on the pleadings and in dissolving the temporary injunction.

Judgment reversed and cause remanded.

WISEMAN PJ, MILLER and HORNBECK JJ, concur.