text:
    STATE, ex rel. CLICK, Relator, v. THORMYER, Acting Director of Department of Highways, Respondents.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5791.
    Decided February 11, 1958.

      Arthur L. Rowe, Columbus, for relator.
    William Saxbe, Atty. Geni., Hugh A. Sherer, Chief Counsel, Thomas L. Startzman, Asst. Atty. Geni., Columbus, for respondents.
   OPINION

By BRYANT, J.

This is an action for writ of mandamus begun in this court. Relator, Stephen E. Click, alleges that on June 21, 1957 he was illegally laid off from a position he held in the classified civil service in the State Highway Department.

He alleges that George J. Thormyer, one of the respondents, is Acting Director of the Highway Department, and that Carl W. Smith and Leland S. Dougan are members of the State Civil Service Commission. Click asks that a writ pf mandamus be issued requiring respondents to restore him to his position in the Highway Department together with the privileges, prerogatives and emoluments of said position together with the pay which has has lost since the time he lost his position.

Click further alleges that he was first employed in Division No. 9, Roadside Improvements, Maintenance and Repairs, on March 16, 1949 and the following month he was provisionally appointed as a driller’s helper in said Department. He further states that in August, 1952 he was given a provisional appointment as a plumber in the said division of the Highway Department and at the same time successfully passed a noncompetitive. examination for said position as a result of which he alleges his said position was within the classified civil service of the State of Ohio and he was entitled to all of the protection afforded by the civil service law.

Click alleges he held said position as plumber until June 21, 1957, prior to which he was informed by letter that his said position was abolished “as a matter of economy.” Click further alleges that on or about June 22, 1957 Willard Graham began the performance of the duties of a plumber in said Division No. 9, Roadside Improvements, Maintenance and Repairs, and that Graham was hired “to perform the identical duties which prior to June 21, 1957 relator had performed.” It is further alleged that on said date “said Willard Graham accepted said employment and began performing the identical duties of the relator and has performed said duties since said date, * *

Click alleges the appointment of said Graham was not made from any eligible list from the State Civil Service Commission and that at no time has there been an eligible list for the position of plumber. He says he has never been given any reason for removal as required by $143.27 R. C.

On behalf of the three respondents a joint answer has been filed admitting the official capacity of each of the three respondents and further admitting the employment of Click in the said Highway Department in the civil service classification and at the times alleged by him, and further admitting that Click had been notified by letter on or about June 18, 1957, that his job was abolished and his services terminated. The answer further admitted the employment of Willard Graham and that Graham was not appointed from an eligible civil service list. The foregoing, being the substance of the first defense, was followed by a general denial.

As a second defense the answer sets forth a job description of plumber with the statement that on or about June 18, 1957 Click was employed in the classified service in that position and that Click’s actual duties on or about said date and “for a substantial period prior thereto, were substantially identical with, or within the scope of the foregoing job description, and such actual duties were actually performed by relator during such period.”

The second defense continues by alleging the employment of Graham in the classification of mason and alleges that Graham has been performing the duties of a mason since his appointment on July 24, 1957. The answer then alleges a practice in the Department of Highways in case of persons having special skills, when they are not needed for such work, of assigning them to common labor tasks. The answer concludes by alleging there is some overlapping in the duties performed by Graham with those previously performed by Click “but such identity is not substantial and the position of said Graham and that formerly held by relator are not identical either in fact or in law.”

Relator filed a reply reaffirming his claim that Willard Graham was not appointed to any position other than that held by Click and alleged that the creation of the title given to Graham “has been merely as a subterfuge in order to remove the relator from his position * *

The matter was submitted upon the pleadings just above referred to, the depositions of three witnesses, namely, Click, the relator herein, Edward L. Kessler, Wellston, Ohio, a well driller, employed in roadside improvement work of the Highway Department, Division No. 9, working out of Chillicothe, Ohio and Henry L. Meinert of Chillieothe, Ohio, in charge of the roadside park program in said Division No. 9 and the immediate superior of the said Click, and the briefs and arguments of counsel. The three witnesses above referred to were called by relator. No witnesses were called on behalf of the respondents.

We mention that for the reason that some of the allegations testified to by relator in support of his claim that he was illegally deprived of his job were undenied in the testimony or otherwise except as they may have been put in issue by general denials in the answer filed by respondents.

Many of the facts in the case are not in dispute or are specifically admitted by the pleadings.

Respondents in their second defense frankly state that Click on June 18, 1957 was employed in the classified service of the State in the classification of plumber. They allege in considerable detail the duties performed by Click and quote the following from the job description of a plumber on file with the State Civil Service Commission:

“Layout, install and repair all types of sanitary drainage;

“Install all types of water and gas lines, together with fixtures;

“Repair boilers and steam lines;

“Install and repair all types of power and hand pumps; and

“Install and repair septic tank and privy vaults.”

The foregoing tasks, being a rather detailed description of the duties of plumbers in general, were specifically alleged by respondents herein to be the actual duties performed by Click on June 18, 1957 and for a substantial period prior thereto. We quote the language used in this portion of the answer as follows:

“Relator’s actual duties on or about June 18, 1957, and for a substantial period prior thereto, were substantially identical with, or within the scope of the foregoing job description, and such actual duties were actually performed by relator during such period.” (Emphasis added.)

This is followed by a detailed job description of a mason and similar allegations as to the duties performed by one Willard Graham (who, relator alleges, was hired illegally to perform the exact duties Click had been performing and was given the title of mason merely as a subterfuge) .

Respondents apparently seek to depart from the broad admissions made in their answer to wit, that Click’s actual duties were that of a plumber. We note that on page four of their brief they contradict the said admissions in the following statement:

“Obviously the situation in the instant case was that relator was classified as a skilled laborer and was paid the wages of a skilled laborer even though there is no question that he did nothing except unskilled or common labor. As a result, his position was abolished and the skilled laborer’s wages were used to hire an urgently needed mason.”

It is to be doubted whether in this state of the record respondents can make a specifically detailed admission and afterwards abandon and seek to contradict it.

All parties concerned admitted that this controversy had as a basis a letter dated June 17, 1957 signed by George J. Thormyer, Acting-Director, Department of Highways, and addressed to Mr. Stephen E. Click, Coalton, Ohio. The letter in full is as follows:

“June 17, 1957”

“Mr. Stephen E. Click

“Coalton, Ohio

“Dear Sir:

“Please be advised that, as a matter of economy, your position of Plumber in Division 9 Roadside Improvement M&R,, is being abolished, effective July 10, 1957.

“Your last day to report for work is June 21, 1957, as vacation is being paid for June 24, 1957 to July 9, 1957, inclusive.

“Very truly yours,

/s/ George J. Thormyer”

“GEORGE J. THORMYER ACTING DIRECTOR DEPARTMENT OF HIGHWAYS”

“GJT.C

CC.Div.9”

It will be well to bear in mind that this letter raises no question as to the efficiency, capability or morals of relator in performance of his duties.

No charge was filed against him or sought to be filed. Nor does this action by the Acting Director of the Department of Highways seek to reduce him in rank or temporarily lay him off. The meaning intended by the writer of the letter was that Click’s job was abolished “as a matter of economy * * * effective July 10, 1957” and that his last day to “work was June 21, 1957.”

The writ of mandamus is not available if an appeal or other adequate remedy of law is available. See State, ex rel. Sidell et al., v. Cole, 147 Oh St 203, holding that a “member of the fire department may not resort to the extraordinary remedy of a writ of mandamus as a substitute for such right to appeal” where he has been reduced in rank.

As early as 1908, however, it had been decided by the Ohio Supreme Court that mandamus action could be used where the removal was illegal. In State, ex rel. Moyer, v. Baldwin, 77 Oh St 532, the first branch of the syllabus is as follows:

“1. Mandamus is the proper remedy to restore a party to the possession of an office from which he has been illegally removed.”

In that case the relator was a detective in the Youngstown Police Department and claimed he was illegally removed by the Mayor, which claim was upheld by the Supreme Court.

In the case of Curtis, et al v. The State, ex rel. Morgan, 108 Oh St 292, at page 300, the court points out that Civil Service Laws permit appeal only in “removal” cases and not in cases of reduction, layoff or suspension. The second branch of the syllabus in the Curtis case is quoted here:

“2. No appeal lies from the action of the appointing authority, except in cases of removal on the grounds set forth in §486-17a GC.”

The fourth branch of the syllabus in the Curtis case, supra, is as follows:

“4. The fundamental purpose of civil service laws and rules, is to establish a merit system, whereby selections for appointments in certain branches of the public service may be made upon the basis of demonstrated relative fitness, without regard to political considerations, and to safeguard appointees against unjust charges of misconduct and inefficiency, and from being unjustly discriminated against for religious or political reasons or affiliations. Those laws and rules may not be invoked by an appointee, where no discrimination is claimed and no charges have been made involving misconduct, inefficiency, or other delinquency.”

In the case of the City of Toledo v. Osborn, 23 Oh Ap 62, the fourth branch of the syllabus is as follows:

“Employee within classified service who is wrongfully deprived of employment by reason of void and illegal ouster from which there is no appeal under §486-17a GC, may be restored to employment by mandamus.”

Cited in support of this are the cases of State, ex rel. Moyer v. Baldwin, supra, City of Cleveland v. Luttner, 92 Oh St 493, Hornberger v. State, ex rel., 95 Oh St 148, State, ex rel. Brittain v. The Board of Agriculture of Ohio, 95 Oh St 276, Curtis v. State, ex rel. Morgan, supra, and the State, ex rel. Bay v. Witter, 110 Oh St 216. We conclude that mandamus is proper to test the questions involved in this case.

Turning to the depositions, the first witness was Click, the relator, who in his petition alleged he was “summarily dismissed and removed” from a job and that “said removal was wrongful and illegal.” In explanation of his allegations Click, called as a witness on his own behalf, identified the letter of June 17, 1957 from Acting Director Thormyer above set forth and beginning at page six of the depositions, after identifying said letter testified as follows:

“Q. Is this the first time then that you knew that you were no longer going to be with the Department of Highways?”

“A. That is right.”

“ME. ROWE: Well, I would like to offer this Relator’s Exhibit No. 1 in evidence.”

“Q. (By Mr. Rowe) Now — ”

“A. Wait a minute; about two weeks before that this guy down here, this Martin — ”

“Q. Who is Martin?”

“A. Well, he is a — the one that asked me to resign. I don’t know what his classification is but he called me over there and asked me to resign. He said, when I didn’t resign, T will see you in a couple of weeks,’ but he never did see me.”

"Q. Who is Mr. Martin?”

“A. Well, he is a — do you know what he is classified as down there?”

“MR. STARTZMAN: Is this Lloyd Martin?”

“THE WITNESS: Yes.”

“MR. STARTZMAN: I think he is a personnel man for the Division, I guess. I don’t know.”

“The WITNESS: Administrative Assistant or something.”

“Q. (By Mr. Rowe) Where is Mr. Martin’s office?”

“A. Right there in Chillieothe in the Highway.”

“Q. In the Highway Building on the Jackson Pike?”

“A. Yes.”

“Q. That is on State Route 35 just as you leave Chillieothe?”

“A. Yes, sir.”

“Q. Did he call you into his office?”

“Yes, sir.”

“Q. And you refused to resign?”

“A. Yes, sir.”

“Q. Then it was after that that you received this letter?”

“A. That is right.”

“Q. Now, did Mr. Martin, when he asked you to resign, given you any reason for your resignation?”

“A. No. He said there was about forty other fellows wanted my job.”

“Q. But he said nothing about the inefficiency or the manner in which you were doing your work?”

“A. No.”

The said Lloyd Martin was not called as a witness and we are unable to find any place in the record where there was any challenge as to the truth of the statement by relator that he was asked to resign because “about forty other fellows” wanted Click’s job.

It was not disputed that relator had been employed by the Department of Highways in the roadside improvement work for more than eight years and for about five years held a provisional appointment based upon a noncompetitive examination as plumber.

It has been held by the Ohio Supreme Court that in the absence of an eligible civil service list, a civil service employee, provisionally appointed after a noncompetitive examinationtion and upon approval of the Civil Service Commission, becomes an appointee in the classified service. See State, ex rel. Slovensky v. Taylor, 135 Oh St 601, State, ex rel. Lagedrost v. Beightler, 135 Oh St 624, and State, ex rel. Conway v. Taylor, 136 Oh St 174.

The principal question in this case is whether or not the abolishment of the job held by Click as plumber was done in good faith or whether it was a subterfuge by which Click’s job could be taken away from him illegally and given to someone else.

On behalf of Click, the evidence shows that the new appointee, Willard Graham, rides the same truck and works under the direction of the same foreman as Click formerly did. Click claimed that from personal observations he had found Graham was performing the identical duties formerly performed by him.

The foreman, Edward L. Kessler, at page thirty-five of the depositions testified as follows:

“Q. Now, you have testified that Graham’s work- is classified 30 per cent masonry, 50 per cent water well work and 20 per cent tree-setting and seeding; that is about the way you would divide his time?”

“A. Yes.”

“Q. Now then, the 50 per cent water well work that he is now doing, is that the work that click formerly was doing?

“A. Yes.”

“Q. And the 20 per cent tree-setting and seeding, is that work Click was doing?”

“A. Yes.”

Henry L. Meinert, who testified at page 44 of the depositions, estimated that the new man devoted thirty per cent of his time to the duties of a mason and approximately seventy per cent of his time to the duties performed formerly by Click.

It is well settled, of course, that where a job is abolished and the services of one under civil service law protection are terminated, the abolition must be done in good faith and not merely to separate an employee from his job.

So far as economy is concerned we note that under the provisions of §143.99 R. C., prior to its amendment effective September 13, 1957, both plumbers and masons, being classifications Nos. 8110 and 8120 respectively, were in the same pay range and hence entitled to the same pay except for the difference in steps, which may have resulted from relator’s longevity.

In the case of The State, ex rel. Miller, v. Witter, Director of Department of Industrial Relations, 114 Oh St 122, there was an attempt made to oust the relator who held the title of branch office manager of the Department of Industrial Relations, of Dayton, Ohio, in favor of another employee who was given the new title acting deputy in charge. The Ohio Supreme Court restored the relator to his job and at page 125 of the opinion wrote as follows:

“The whole record sustains the claim that what was really done was to readjust the salaries covering the Dayton branch — leaving the office intact, but its incumbent dismissed — and to displace the incumbent for another, who, while assuming to act as deputy, actually performed the same duties as had been previously performed by the relator, and none other.

“We are of the opinion that, under the facts disclosed by the record, there was no abolishment of the office. A peremptory writ of mandamus will therefore issue as prayed for.”

As before stated where such a job abolishment is undertaken it must be in good faith and not a mere subterfuge. Further, the actual duties rather than the mere title will be looked to to determine the bona fides of such job abolishment. In the case of the State, ex rel. Hubbard v. Hilty, 31 Abs 538, branches seven and eight of the syllabus are as follows:

“7. The abolition of a position to meet economic and financial requirements must not be predicated on mere subterfuge.”

“8. The test of subterfuge in abolishment of a position is: if another is employed to perform substantially identical service, either under the same or a different title, the purported abolishment is a subterfuge; if another is not so employed, the position has been legally abolished and it is not a subterfuge.”

As earlier pointed out, the evidence before the court is in the form of a deposition containing the testimony of relator for two other witnesses called by him. No witnesses were called on behalf of Acting Highway Director Thormyer or the two members of the State Civil Service Commission. Click testified that he was asked to resign, that no question was raised as to his good behavior or his efficient service nor was anything said to him with respect to the matter of economy.

As pointed out above there is no economy in firing a plumber and hiring a mason, all things else being equal, for the simple reason that both are paid the same amount as starting pay. There was, of course, some testimony in the record about some persons who had been classified as masons who had resigned.

Most damaging to the position of the respondents was the testimony of Click that a person identified as Lloyd Martin, said to be either administrative assistant to the division enginer or personnel man of Division No. 9, had called Click to his office and summarily demanded his resignation. When Click refused and asked for the reason, he was told, according to Click, that others wanted his job. It is admitted that Click was holding a civil service job. The reason claimed to have been given by Martin appears to be borne out by the events which followed.

Civil service is founded upon Article XV, Sec. 10, Ohio Constitution, adopted in 1912 which provides as follows:

“Appointments and promotions in the civil service of the state, the several counties, and cities, shall be made according to merit and fitness, to be ascertained, as far as practicable, by competitive examinations. Laws shall be passed providing for the enforcement of this provision.”

This has been implemented by the enactment of nearly fifty sections of law on the subject including §143.27 R. C., dealing with the tenure of public employees in the classified service and guaranteeing that such tenure shall be undisturbed during good behavior and efficient service. This section provides in part as follows:

“The tenure of every officer or employee in the classified service of the state and the counties, cities, and city school districts thereof, holding a position under §§143.01 to 143.48, inclusive, R. C., shall be during good behavior and efficient service; but any such officer or employee may be removed for incompetency, inefficiency, dishonesty, drunkenness, immoral conduct, insubordination, discourteous treatment of the public, neglect of duty, violation of such sections or the rules of the commission, or any other failure of good behavior, or any other acts of misfeasance, malfeasance, or nonfeasance in office.” ("Emphasis added.)

See also §143.03 R. C., requiring the appointments and layoffs to be in accordance with the provisions of the Civil Service Law.

We have searched the record carefully and find nowhere any denial or challenge to the accuracy of Click’s report on the interview he had with Martin. If there were any inaccuracies in Click’s description of what happened it would have been a simple matter to put Mr. Martin on the stand.

Click testified further that from personal observation Willard Graham was performing the identical duties Click had performed previously even to occupying the identical seat in a truck in which Click formerly rode when performing his duties. The other two witnesses estimated that seventy per cent of the duties performed by Graham were those which formerly had been performed by Click.

In light of the foregoing only one conclusion is possible, namely, that no economy was intended to be effected, nor in fact was effected, that the job abolishment was not for the purpose of efficiency, economy, lack of funds or lack of work but merely as a means to separate illegally Click from the state payroll and provide an opening for the appointment of another. The said abolishment, therefore, being unauthorized, never in fact was effective and the relator is entitled to a writ of mandamus restoring him to his former position in the Department of Highways, State of Ohio, Division No. 9, Roadside Improvements, Maintenance and Repairs, as a plumber effective from and after the date of his illegal separation therefrom to wit, July 10, 1957, and respondent, George J. Thormyer, Acting Director of the Department of' Highways, is ordered to prepare or cause to be prepared the necessary and proper pay rolls and all other papers incident thereto and the respondents, Carl W. Smith and Leland S. Dougan, as members of the State Civil Service Commission, are further ordered to take steps necessary and proper to make this order effective.

PETREE, PJ, MILLER, J, concur.


source: Caselaw Access Project

author: By SCHWARZWALDER, J.

license: Public Domain

text:
    CUTNAW, Plaintiff, v. COLUMBUS (City), Defendant.
    Municipal Court, Columbus.
    No. 41106.
    Decided February 28, 1958.
    Guy Martin, Columbus, for plaintiff.
    Russell J. Leach, City Attorney, Alba Whiteside, Asst. City Atty., Columbus, for defendant.
   OPINION

By SCHWARZWALDER, J.

This matter comes before the Court on a motion by the defendant, The City of Columbus, for judgment notwithstanding the verdict heretofore rendered by the jury. The plaintiff, Walter R. Cutnaw. filed suit against the City of Columbus to recover damages sustained to his automobile while it was parked in the Long Street parking garage, a city owned garage.

The facts briefly stated are as follows: The plaintiff was the owner of a 1951 Oldsmobile and on May 4, 1956, plaintiff delivered his automobile to the Long Street garage. Upon his return he was informed that the car had been damaged while being parked in the garage by an attendant of the garage. It is stipulated that the attendant was an employee of the defendant and acting within the course of his employment at the time of the damage to the automobile. The plaintiff in his petition sets out three separate allegations of negligence on the part of the defendant. Various estimates of damage to the plaintiff’s automobile were introduced in the evidence.

Plaintiff in his petition prayed for $535.00 in damages. The case was tried to a jury and the jury returned a verdict in favor of the plaintiff in the amount of $554.00. The plaintiff immediately moved for a remittitur to reduce the amount found by the jury to the amount prayed for in the petition. The defendant moved for a mistrial.

On February 25, 1958, an entry was made by the Court in writing on the half-sheet in the file of this case. Said entry ordered a remittitur in the amount of $254.00 and the plaintiff having accepted said remittitur, the Court rendered judgment for the plaintiff upon the verdict in the amount of $300.00 and costs. Subsequent to the filing of the above entry, a motion was filed by the defendant for judgment notwithstanding the verdict.

Counsel for the defendant in his memorandum in support of the motion for judgment, notwithstanding the verdict, bases his argument-on two propositions — (A) that no evidence of negligence was proven by the plaintiff against the defendant, and (B) that assuming such negligence was proven, the operation of an off-street parking garage is a governmental function and that, therefore, the City is immune from liability for a tort committed in the operation of such governmental function.

As to Branch (A) of defendant’s memorandum, the Court is of the opinion that from a reading of the entire record there was sufficient evidence adduced on the part of the plaintiff to require that the case be submitted to the jury on the question of the negligence of the defendant.

The question still remains — Is the operation of a City owned parking garage a governmental or proprietary function?

On two different occasions, legal questions involving the operation of the Columbus Long Street parking garage have been before the Ohio Supreme Court. In State, ex rel. Gordon v. Rhodes, 156 Oh St 81, the Supreme Court held that a municipal corporation may construct, operate and maintain an off-street parking garage. Unfortunately the Supreme Court did not decide the question as to whether or not in so operating a garage the City was exercising a governmental or proprietary function.

In In re Exemption, 167 Oh St 256, the Ohio Supreme Court held that real property acquired and used by a municipality for off-street parking purposes is not exempt from taxation. Again, the Court did not see fit to specifically say that the operation of a parking garage is a governmental or a proprietary function.

Counsel for defendant City argues with considerable vigor that in the Rhodes case, supra, the Supreme Court has at least strongly indicated, ii not decided, that the operation of the Columbus parking garage is a governmental function. To support this contention, he cites the following language in the body of the opinion:

“The modern trend of decision is to expand and liberally construe the term ‘public use’ in considering state and municipal activities sought to be brought within its meaning. The test of public use is not based upon the function of capacity in which the use is furnished. The right of the public to receive and enjoy the benefit of the use determines whether the use is public or private.

“The determination of what constitutes a public purpose is primarily a legislative function, subject to review by the courts when abused, and the determination of the legislative body of that matter should not be reversed except in instances where such determination is palpably and manifestly arbitrary and incorrect.”

With this contention this Court cannot agree. That the Supreme Court was using the phrase “public or governmental purpose as distinguished from private” in relationship to the question of whether or not the City could build such a garage and not in relationship to tort or contract liability of the City, once the garage is built, is obvious from the language at the bottom of page 92, Oh St 156, which reads:

“In determining the existence of a public use or a public purpose the courts of Ohio have throughout our history been guided by definition or general understanding of the terms in harmony with the text quotations appearing above. Such decisions appear from the earliest date in condemnation proceedings, in cases testing the scope and meaning of corporation charters, and in cases involving the right of municipalities to perform certain challenged acts in the conduct of municipal government. The specific question now before this court has not previously arisen in this state.”

Note that Judge Middleton does not once mention tort or contract liability, but discusses public purpose or governmental purpose as it relates to constitutional questions raised by the issuance of bonds to finance the building of the garage.

The Rhodes and the In Re Exemption cases cited above are not dispositive of the question before this court.

One of the “landmark” cases in the field of governmental v proprietary function is Wooster v. Arbenz, 116 Oh St 281. In that case Arbenz, the plaintiff, alleged that he was injured by reason of the automobile driven by him coming in collision with a truck owned and operated by the City of Wooster; the truck at the time being engaged in hauling cinders for the repair of Lincoln Street in that city. The Supreme Court held in the Syllabus as follows:

1. Streets and highways are public and governmental institutions, maintained for the free use of all citizens of the state, and municipalities while engaged in the improvement of streets are engaged in the performance of a governmental function.

2. Sec. 3714 GC. imposes upon municipalities the obligation to keep streets, alleys, and other highways within the municipality open, in repair, and free from nuisance; the legislation imposing this duty in an exercise of the sovereignty are subject to the liability which follows a failure to discharge that duty.

3. The duties and obligations thus imposed are in derogation of the common law and must therefore be strictly construed, and the provisions of that legislation cannot by implication or interpretation be extended to make a municipality liable for the negligence of its servants while engaged in the act of making improvements to streets, unless such negligence relates to a condition of the street itself and the damage is caused by a defective condition thereof.

Further in attempting to lay down rules for determination of whether or not a city is liable in tort for the negligence of its servants or agents, Judge Marshall stated as follows:

“This court is for the present committed to the doctrine that there is no liability on the part of a municipality in actions for tort, if the function exercised by the municipality, at the time of the injury to the plaintiff was a governmental function.”

“The court is equally committed to the doctrine that if the function being exercised is proprietary and in pursuit of private and corporate duties, for the particular benefit of the corporation and its inhabitants, as distinguished from those things in which the whole state has an interest, the city is liable.”

The opinion then gives examples of what is a proprietary and v/hat is a governmental function:—

“First of all, let us ascertain the tests whereby these distinctions are made. In performing those duties which are imposed upon the state as obligations of sovereignty, such as protection from crime, or fires, or contagion, or preserving the peace and health of citizens and .protecting their property, it is settled that the function is governmental, and if the municipality undertakes the performance of those functions, whether voluntarily or by legislative imposition, the municipality becomes an arm of sovereignty and a governmental agency and is entitled to that immunity from liability which is enjoyed by the state itself. If, on the other hand, there is no obligation on the part of the municipality to perform them, but it does in fact do so for the comfort and convenience of its citizens, for which the city is directly compensated by levying assessments upon property, or where it is indirectly benefited by growth and prosperity of the city and its inhabitants, and the city has an election whether to do or omit to do those acts, the function is private and proprietary.

“Another familiar test is whether the act is for the common good of all the people of the state, or whether it relates to special corporate benefit or profit. In the former class may be mentioned the police, fire, and health departments, and in the latter class utilities to supply water, light, and public markets. Authorities may be found in abundance to establish the immunity from liability in the former class of cases, and to establish the liability in the latter class of cases.”

How do the tests in the Arbenz case apply to the instant case? Admittedly, there is no statutory obligation imposed upon a municipality to operate a parking garage, nor does the operation of a parking garage fall into the same type of function as police, fire and health departments, but rather such garage is clearly a function similar to “utilities to supply water, light, and public markets.” Admittedly, under the Rhodes case, supra, the operation of a parking garage is a “public purpose” but it is not a governmental function.

Is the Arbenz case still the law in Ohio? A careful search reveals that the case has never been overruled by the Ohio Supreme Court.

In an article published in 1948 in the Ohio State Law Journal, Vol. 9, page 377, the then Secretary of the College, Professor Robert Hunter, and Mr. Ralph E. Boyer made an exhaustive review of the problem of tort liability of local governments in Ohio. At page 377, the article states:

“The inequities of the immunity doctrine have been plainly portrayed and adequately condemned by many authorities, but the traditional concept of sovereign freedom from suit is not entirely friendless. There is considerable disagreement as to the extent to which the immunity should be swept away and as to the liability that should replace it.”

The article goes on to point out the traditional distinction between governmental and proprietary function and to examine numerous Ohio cases. However, in the conclusion, see p. 406, et seq., the following statements are made:

“The foregoing survey of the Ohio law of tort liability of local governments should make one thing, if nothing else, clear; there is no definite pattern which may be traced through the cases and statutes.

* * * * *

“If the choice, then, for practical purposes becomes one of leaving the injured person uncompensated in whole or in part or of placing the loss on the public body, the answer would seem to be easy.

* * * * +

“It is difficult to believe that there are no better reasons which account for the fact that we still tolerate a policy of leaving deserving claimants uncompensated if their injuries are caused by public servants.”

A very interesting case, and one with which this court is in complete agreement, is the case of Gorsuch v. Springfield (City), 43 Abs 83, decided in March of 1945 by the Second District Court of Appeals. Certain of the headnotes in that case read as follows:

2. Ohio is definitely committed to the doctrine that except for the provisions of §3714 GC.. there is no liability on the part of a municipality in action for tort if the function exercised by the municipality at the time of an injury was a governmental function, but the doctrine is equally well established that if the function being exercised is proprietary and in pursuit of private and corporate duties, for the particular benefit of the corporation and its inhabitants, as distinguished from those things in which the whole state has an interest, the city is liable in tort.

3. The maintenance and operation of a municipal golf course and club house at the election of the city in a municipal park by a golf commission of which the park superintendent was an ex-officio member, whereby the city was benefitted by revenue in the nature of privilege fees, etc., with which to make permanent improvements in the park without a levy of taxes for such purpose, is a private and proprietary function as a matter of law under clear and uncontradicted evidence.

The case of Broughton v. City of Cleveland cited in defendant’s memo is a typical example of the disagreement which exists in the minds of the members of the Supreme Court. The question in the Broughton case was whether or not the collection of garbage is a governmental or proprietary function of government.

In the opinion, Judge Zimmerman reviews the entire problem of tort liability of municipal government and in the following language raises the question as to the correctness of the Ohio Supreme Court’s position:

“The generally recognized rule that a municipality is not liable for torts committed by its employees in the exercise of a function of the municipality which is governmental in character has been subject to sharp criticism. It is argued that such rule having its origin in the ancient and obsolete maxim that “the king can do no wrong” has no place in this modern day with its enlightened sociological concepts and governmental changes, and that the rule of nonliability is unfair and unjust in that the burden of damages • resulting from the tortious or wrongful acts of the government should be removed from the person who sustains them and cast upon the whole community comprising the government, which could bear the loss with little hardship or inconvenience, and ought to do so. It must be conceded that this approach is not without logic and force.”

However, in a 5 to 2 decision, the Court held that garbage collection by a city was a governmental function. Judge Taft in the dissenting opinion points out that the Ohio Supreme Court has repeatedly held that the operation, maintenance and repair of sewers after their construction is a proprietary function and, therefore, the cities are liable for the negligence of their employees in connection with such work. Judge Taft fails, as does this Court, to see a distinction between garbage collection and the maintenance of a sewer system insofar as governmental or proprietary function is concerned. This Court is conscious of the fact that the correction of the ridiculous situation which exists in Ohio on the question of tort liability of municipalities rests primarily with the Legislature. However, it is the humble opinion of this Court that the time is long over due when the Supreme Court should do more than concede that the argument that “the rule of nonliability is unfair and unjust” and “is not without logic and force” and act affirmatively to decide, in a proper case, that “the whole community comprising the government” ought to bear the loss suffered by an innocent person damaged by the negligence of an employee of a municipal government.

This Court has read all of the cases cited by Judge Zimmerman at p. 30 in the Broughton case, supra, and is convinced that none of them are controlling in the instant case.

Here we have what is ordinarily a private business being operated by government. It is conceded that a fee is charged for parking; that tremendous receipts are taken in yearly, and that the garage is run as a business. Surely in view of the seriousness of the traffic problem in our modern society, the operation of a parking garage has a “public purpose,” but it is not a governmental function.

Upon the authority of the Arbenz and the Gorsuch cases, the motion is overruled.


author: By SKEEL, PJ.

text:
    EUCLID (City), Plaintiff-Appellee, v. GENERAL MOTORS CORPORATION, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    Nos. 24027, 24028.
    Decided February 27, 1957.

      Paul Torbet, Director of Law, Arthur L. Leppert, Asst. Director of Law, for plaintiff-appellee.
    Jones, Day, Cockley & Reavis, Luther Day, J. L. Schaffer, Frank C. Heath, Thomas P. Mulligan, Ellis McKay, of Counsel, Henry M. Hogan, for defendant-appellant.
   OPINION

By SKEEL, PJ.

This appeal comes to this court on questions of law from a finding, judgment and sentence entered by the Municipal Court of Euclid, finding-defendant guilty of violating an ordinance of the City of Euclid prohibiting “unnecessary noises.”

The defendant was arrested on three separate charges of the violation of the ordinance in question. It was found guilty on two of the charges and not guilty for want of sufficient evidence as to the third charge. The ordinance, insofar as it is applicable to these cases, provides as follows:

“Sec. 1. Unnecessary Noises. It shall be unawful for any person to make, continue, or cause to be made within the City of Euclid any unreasonably loud, disturbing and unnecessary noise, or noises of such character, intensity and duration as to be detrimental to the life and health of any individual. The following acts, among others, are declared to be loud, disturbing and unnecessary noises in violation of this section but said enumeration should not be deemed to be exclusive, namely:

“8. The creation of a loud and excessive noise in connection with loading or unloading any vehicle, or the opening and destruction of bales, boxes, crates and containers.

“11. The operation of a mechanical device in the open which annoys or disturbs the quiet, comfort or repose of any person or persons in their residence; provided that any such noise that can be distinctly heard at a distance of more than 150 feet from its source shall be deemed excessive.

The affidavit in Case No. 24027 charges the defendant did make or cause to be made on its property “a loud and successive noise in connection with loading or unloading of railroad cars and did create or cause to be created noises which annoyed and disturbed the quiet, comfort or repose of a person in her residence,” between the hours of 12:30 to 2:00 A. M. of May 23, 1956. (Emphasis added.) The affidavit in Case No. 24028 charges the defendant “did make or cause to be made an unreasonably loud or disturbing noise and a noise of such character and intensity and duration as to be detrimental to the life and health of persons residing in the vicinity of said premises * * *” after 9:00 P. M. on May 21st, 1956.

The defendant is a large corporation operating many plants in this and other communities throughout the country and producing many products for industrial, commercial and retail uses. Its plant here concerned is located in a sixty-one acre tract facing on Euclid Avenue on its southerly line, the Nickle Plate Railroad is on its north line and is immediately west of the residence properties on the west side of East 204th Street between Euclid Avenue and Roseland Avenue. This property, and the plant located thereon, is in a territory zoned “U6 Industrial” by the Zoning Ordinance of the City of Euclid. The plant is used to assemble Chevrolet and Pontiac station wagon bodies. There are three spur railroad tracks from the Nickle Plate switch tracks located to the north on defendant’s property, two of the spurs leading into the plant which are used for loading and unloading purposes and one located just east of the plant which is used for switching purposes by Nickle Plate crews. The prosecuting witnesses who testified for the city live on East 204th Street, which is zoned for two-family residences, such residence property being separated from defendant’s plant by a fence which is along defendant’s easterly property line about 165 feet east of its plant.

The defendant claims the following errors:

1. The affidavits do not charge an offense under the ordinance.

2. The court was in error in exclusion of evidence.

3. The court was in error in finding defendant guilty upon the evidence submitted.

The first claim of error is well taken as to the affidavit filed in Case No. 24027. The affidavit as above set out charges the defendant with making or causing to be made on its premises a loud and “successive” noise in connection with the loading and unloading of railroad cars and that it did create or cause to be created noises which annoyed and disturbed the quiet, comfort or repose of a person in her residence (during certain hours of the day set forth in the affidavit). The ordinance defines the crime intended to be prohibited as “unreasonable and unnecessary” noises. No mention is made of either of these requirements in the affidavit. The word “successive” is found in the affidavit in connection with the word “loud” in loading or unloading railroad ears. No attempt to amend the affidavit was made during trial so that the meaning that must be ascribed to this charge is that the noise complained of was loud and intermittently continuous. Even if it were to be considered as meaning “excessive” still the requirements of “unnecessary” and “unreasonable” are entirely absent from the allegations of the affidavit, and for that reason, the affidavit is insufficient under the provisions of the ordinance. It must be obvious that in a district zoned for “industrial use” noises reasonably necessary, made in the regular conduct of a legitimate business within the classification of the zoning ordinance of the district, would not be a violation of the provisions of the ordinance here considered.

The evidence in support of this charge is wholly insufficient. There is not a word to even suggest that the defendant or any of its employees was in any way connected with the switching operations on the railroad tracks servicing defendant’s plant. The presumption must be, without proof to the contrary, that these operations were under the exclusive dominion and control of the railroad company and independent (in the operation of the switch engine and coupling of cars) from any control of the .defendant. This being a criminal action, unless the acts of the railroad company could be linked with the defendant as an aider and abettor or co-conspirator, the unlawful acts, if any, of any of the railroad company employees could not be charged against the defendant. The law of agency has no application here.

The city’s first witness whose only complaint had to do with a noise on the “third track” in the coupling of boxcars which sounded like an “atomic bomb going off” would have no application to the charge made against the defendant. What the basis of this witness’s experience in regard to an atomic bomb might be from which to make the comparison is not in the record. In all events, she was awakened at twelve thirty A. M. by this “terrific bump” and was awake until two A. M., but heard no other noises throughout the period she remained awake. This is in direct contradiction as to what was heard by other witnesses with regard to noises that might be attributable to the defendant rather than the railroad company. Considering all of the record, in addition to the fact that the affidavit is not sufficient, the conclusion is unescapable that the city’s case is not supported by sufficient evidence.

The charge contained in the affidavit of Case No. 24028 is, as above indicated, “that on or about the 21st day of May, 1956, after 9:00 P. M. caused to be made an unreasonably loud or disturbing noise * * * and a noise of such character, intensity and duration as to be detrimental to the life and health of persons residing in the vicinity * *

Here again there is no allegation that whatever noise was made by the defendant was, under the circumstances, unreasonable and unnecessary. These are essential elements of the crime as defined in the ordinance. It could not have been the purpose of the city council of Euclid to zone the property of the defendant for industrial use and then, after large sums of money have been spent to employ the property as zoned, to prevent its use for the purposes intended by an ordinance prohibiting certain noises that does not take into account, under the circumstances, noises necessarily resulting from a proper and reasonable use of the property To do so would result in taking property without due process in violation of constitutional guaranties.

The evidence as presented in this case, aside from being contradictory to the point of destroying the credibility of the several witnesses who testified, falls far short of being sufficient to establish all of the necessary elements' of the crime charged. There is no evidence whatever to connect what noise there was with the necessary elements of the crime charged that such noise was “unnecessary” or “unreasonable” or “detrimental to the life and health of any person.”

For the foregoing reasons, the judgments in each case are reversed and final judgment, discharging the defendant, is entered.

HURD, and KOVACHY, JJ, concur.


author: By PETREE, PJ.

text:
    TRUEX, Plaintiff-Appellant, v. NEW YORK CENTRAL RAILROAD, a Corporation, Defendant-Appellee.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5642.
    Decided January 28, 1958.
    Chamblin, Morgan & Hunsinger, David E. Morgan, of Counsel, Columbus, for plaintiff-appellant.
    Wilson & Rector, Richard T. Rector, of Counsel, Columbus, for defendant-appellee.
   OPINION

By PETREE, PJ.

This is a law appeal, and the assignment of error is as follows:

“The Court erred in directing a verdict in favor of Defendant at the close of Plaintiff’s case.”

Plaintiff, appellant herein, brought suit in the Common Pleas Court of Franklin County for personal injuries and damages to his motor vehicle arising out of a grade-crossing accident where the lines of the defendant, appellee herein, cross Hamilton Road in the eastern part of Franklin County. At the conclusion of appellant’s evidence, the trial court granted the motion of the railroad company for a directed verdict in its favor, upon the ground that the contributory negligence of Truex had been established as a matter of law.

It is not disputed that the intersection at the time of the accident on March 31, 1953, did not contain automatic flasher lights nor bells. There were the usual stationary signs indicating that there was a railroad crossing at this location. Appellant had been over the road before and knew of the existence of the crossing.

The evidence of the appellant is to the effect that it was daylight at the time of the accident; that he had been traveling forty to forty-five miles per hour prior to coming to the railroad tracks; that as he approached the crossing, he was reducing speed to, roughly, fifteen to twenty miles per hour; that he heard no whistle nor bell from the approaching train; that his view was obstructed by a number of box cars which were standing on the south track beginning at approximately one hundred feet west of the intersection and extending several hundred feet west of that point; that his view was obstructed in such a manner that he could not see the approaching train until he was on the tracks; and that the train was moving pretty fast, the speed estimated by appellant at one time at sixty miles per hour.

The evidence showed that the two rails of the south track were a little under five feet apart and that there was a distance of seven feet between the north rail of the south track and the south rail of the track on which the train was proceeding.

Since the accident occurred outside of a municipal corporation, the evidence does not raise the presumption that the plaintiff was exceeding any speed limit on Hamilton Road at the time of the accident.

In view of the appellant’s evidence that he did not hear any signals nor bells and that he did not see the train until he was at or on the tracks due to the obstruction of a string of box cars on the south track, the appellant cannot be said to be guilty of negligence as a matter of law in attempting to get on across the tracks when the train came into his view approximately one hundred feet away. This is clearly a case for the jury under the ruling of the Supreme Court of Ohio in The Cleveland, Cincinnati, Chicago & St. Louis Ry. Co. v. Kuhl, Admx., 123 Oh St 552, where the court used the following language in the syllabus:

“In an action for personal injuries arising out of a collision between an automobile and a backing engine at an intersection of a railroad and a highway, where the record tends to show that the view of such railroad crossing at certain points approaching the crossing is obstructed, and the record presents no evidence tending to show that a traveler in such automobile upon the highway did not look and listen for the train, the question of contributory negligence becomes one of fact for the jury.”

We find that the court erred in directing a verdict whereas under the state of the record, the matter should have been submitted to the jury. The cause will, therefore, be remanded to the Common Pleas Court for a new trial.

Judgment reversed.

BRYANT and MILLER, JJ, concur.


author: By THE COURT.

text:
    HUTCHINSON, Petitioner, v. ALVIS, Warden et, Respondents.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5886.
    Decided February 4, 1958.
    Edward Hutchinson, No. 90804, Columbus, for himself.
    William Saxbe, Atty Geni., William Vance, Asst. Atty. Geni., Columbus, for respondents.
   OPINION

By THE COURT.

Submitted on motion of the respondent seeking an order requiring the petitioner to make his petition definite and certain by stating with particularity wherein “he is being held in illegal custody,” or in the alternative, that the petition be dismissed at petitioner’s cost. An examination of the petition reveals that it alleges:

(lj The petitioner is imprisoned or restrained of his liberty.

(2) That he is in the custody of R. W. Alvis, Warden of the Ohio Penitentiary.

(3) The place where he is held is set forth.

(4) That the detention is illegal.

(5) The petition is signed and verified.

We are of the opinion that the above stated allegations constitute a good cause of action under the provisions of §2725.04 R. C. See also, 20 O. Jur. 486, Section 61.

The motion will be overruled.

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


author: By THE COURT:

text:
    NEUBAUER, Plaintiff-Appellee, v. CLEVELAND (City) et, Defendants-Appellants.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23769.
    Decided May 16, 1957.
    Charles R. Miller, for plaintiff-appellee.
    Ralph Locher, Director of Law, William T. McKnight, Asst. Director of Law, Cleveland, for defendants-appellants.
   OPINION

By THE COURT:

Decree for plaintiff.

Under the plain and undisputed facts, this court holds:

(1) That Howard Scott, Commissioner of Air Pollution, in accordance with his mandatory duty under Section 133.22 of the Codified Ordinances of the City of Cleveland, shall prepare and promulgate divisional rules and regulations for the purpose of effectuating the control of air pollution in the City of Cleveland;

(2) That the burning of combustible wastes on the lakefront constitutes a nuisance per se and is carried on in violation of §3767.02 R. C., and Sections 3.5323, 3.5327, 3.5329, 3.5331 of the Codified Ordinances of the City of Cleveland;

(3) That combustible wastes are deposited on the lakefront in violation of Sections 3.5519, 3.5521, and 3.5539 of the Codified Ordinances of the City of Cleveland.

Recognizing that the immediate enforcement of this order would be dangerous to the public health without some means existing for the continued disposal of this waste material, a further hearing is set for Monday, May 27, 1957, at 10:00 A. M., at which time counsel will be expected to assist the court in determining the time and manner of effectuating a complete abatement of the nuisance, i. e.:

1. Measures to reduce quantity of combustible waste to a minimum without prejudice to public health.

2. Conditions under which the fires that in the interim are absolutely necessary shall be conducted-to -bring about the least possible inconvenience to the general public.

3. Control and. regulation of combustible wastes deposited in order that such material be kept to a minimum.

4. Terminal date for complete abatement. Exceptions. Order see journal.

SKEEL, PJ, HURD and KOVACHY, JJ, concur.


text:
    NEUBAUER, Plaintiff-Appellee, v. CLEVELAND (City) et, Defendants-Appellants.
    No. 23769.
    Decided October 17, 1957.
   OPINION

By THE COURT:

In this case, here appealed on questions of law and fact, this court has heretofore held that

(1) Howard Scott, Commissioner of Air Pollution, has not complied with the mandatory duty to prepare and promulgate divisional rules and regulations in compliance with Section 1.3322 of the Codified Ordinances of the City of Cleveland.

(2) The burning of combustible wastes on the lakefront dump constitutes a nuisance and is carried on in violation of State law and the ordinances of the City of Cleveland.

(3) That combustible wastes are deposited on the lakefront dump in violation of city ordinances.

The court withhheld journalizing its ruling pending additional information, realizing that the disposal of waste material bears a relationship to public health and that a methodical and constructive program was necessary to implement its order to forestall any possible breakdown in such activities. The parties were instructed “to assist the court in determining the time and manner of effectuating a complete abatement of the nuisance.”

The City of Cleveland relies entirely upon the construction of an additional incinerator as a practical means of eliminating all burning on its lakefront dump. It reports that although the new incinerator has been authorized by the City Council, the money voted by the citizens of Cleveland and the land for its location appropriated, lawsuits have been filed by taxpayers which are delaying progress in its construction. Upon the building of this incinerator, it is proposed that all combustible waste material will be diverted to and burned in such structure.

The Plaintiff, on the other hand, filed a supplemental brief and furnished the court with material that is comprehensive and authoritative on the subject. It convinces us that it is feasible and practical to dispose of combustible waste on the lakefront dump by other means than by burning, namely, by sanitary landfill. Prom the information contained in this material it appears that the burning of combustible waste on an open dump is as outmoded and oldfashioned as the use of a horse and buggy today would be for transportation; that over 100 cities of Ohio use sanitary landfill methods for the disposal of all waste material; that over 1100 well-known cities throughout the United States have adopted the same method; that the sanitary landfill method is adaptable to all forms of topography and soil texture; that there is no serious problem in employing it on land adjacent to water; that it is specifically available as a method of disposal on the lakefront dump of Cleveland; that the City of Cleveland presently owns suitable equipment to carry on such operations; that qualified personnel from other cities of Ohio and officers of the Board of Health of the State of Ohio have offered their services to the City to help inaugurate such procedure for combustible waste disposal; and that there is no major obstacle to hinder the installation of the sanitary landfill method for disposing of cumbustible waste on the lakefront dump.

The material filed by the Plaintiff comes to us in three categories:

I. Pamphlets and Booklets

II. Letters

III. Affidavits

I. Pamphlets and Booklets

1. An annotated bibliography, 1954-1955, on Refuse Collection and Disposal, by U. S. Department of Health, Education and Welfare, Public Health Service.

2. Clean Up Your Community by Ohio Department of Health, 1953

3. Sanitary Landfill by U. S. Department of Health, Education and Welfare

4. A Three-Part Review of Design, Operational and Economic Criteria of the Sanitary Landfill Method of Refuse Disposal, by U. S. Department of Health, Education and Welfare, Public Health Service

5. Garbage and Refuse, Report No. 17 of The Ohio Municipal League

6. Minimum Regulations for Dumps in the City of Los Angeles

7. Marine Operations of City of New York Department of Sanitation

8. Annual Report, 1955, by City of New York, Department of Sanitation

9. Sanitary Refuse Pills in “Wet” Areas by C. A. Rogus, Director of Engineering, Dept, of Sanitation, New York City

10. Questions and Answers About Sanitary Landfills

11. Disease Killers at Work!

12. Sanitary Landfill, an important Community Benefit

II. Letters

1. Steadman M. Overman, Sanitarian, State of Ohio, Department of Health

2. W. A. Schneider, Director, Department of Public Works, Bureau of Sanitation, Los Angeles, California

3. S. G. Gentile, Deputy Commissioner Administrator, City of Detroit, Department of Public Works

4. Eldon P. Koetter, Sanitary Landfill Representative, Caterpillar Tractor Co.

III. Affidavits

1. Louis E. Bunts, Sanitary Engineer of the Akron Health Department.

2. Paul R. Critzer, Specialist in the planning, organization and equipping of sanitary landfills for municipal and private companies.

3. H. D. Mattison, Jr., Expert in planning landfill operations.

4. Saul Gilmore, who observed and took the license numbers of trucks bringing material to the lakefront dump on Friday afternoon, April 26, 1957.

5. George A. Quigley, a partner in a waste disposal company that operates a dump disposal facility on a contract basis.

The City of Cleveland filed no answer brief nor rebuttal material whatever, either by way of affidavits or otherwise. In argument it stated the difficulties confronting it in the construction of its incinerator and contended that there was no alternative but to continue its burning operation on the lakefront until the incinerator was built.

We are of the opinion that the City’s insistence upon continuing to burn combustible waste material on the lakefront dump is indefensible and that its claim that an emergency exists is without substance. The proof is clear and convincing that other methods of disposing of combustible waste material are available and that they can be made to work on the lakefront dump. The fact that burning has gone on for 50 years has no significance in view of the overwhelming evidence that such method of disposing of combustibles is archaic, outmoded and unnecessary. Moreover, the City conducts these open fires contrary to the very ordinances of the City of Cleveland which it is duty bound to uphold and enforce. It is as well contrary to the laws of the State of Ohio. (Sec. 3767.02 R. C.; Sections 3.5323, 3.5327, 3.5331 and 3.5539 of the Codified Ordinances of the City of Cleveland.) Its position, therefore is untenable —the City of Cleveland is not above the law. We therefore come to the inescapable conclusion that the claim of the defendant City that a state of emergency exists with respect to the disposal of combustible wastes and that as a consequence it is imperative that it continue to burn such material on the lakefront dump until the new incinerator is built is unfounded in view of the clear and convincing evidence that modern, progressive and workable methods are available for such disposal which obviate the necessity of inflicting the discomforts concomitant with the open burning of rubbish upon the people of this community. There is no reason why the thousands of motorists passing this location between East 12th Street and East 49th Street should endure the acrid fumes, noisome smoke and offensive fly-ash belched forth by these open fires.

The affidavit of Saul Gilmore discloses that many privately-owned trucks bring commercial combustible wastes to this dump. This practice offends Section 3.5519 of the Revised Ordinances, which reads:

“Commercial conbustible wastes, other than garbage, shall be hauled to a public incinerator at the expense of the person, firm or corporation producing the same. They shall not be dumped on any public or private dump.”

The City, therefore, cannot continue to receive such material at its lakefront dump.

A journal entry may be drawn in accordance with this opinion. The nuisance shall be abated and the dumping of commercial combustible waste material shall cease by January 1, 1958. Exceptions.

SKEEL, PJ, HURD and KOVACHY, JJ, concur.


author: By BRYANT, J.

text:
    DRAPER, Plaintiff-Appellee, v. DRAPER, Defendant-Appellant.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5691.
    Decided February 18, 1958.
    Olin L. Parrett, Columbus, for plaintiff-appellee.
    William J. Ahern, of Schwenker, Teaford, Brothers & Solsberry, Columbus, for defendant-appellant.
   OPINION

By BRYANT, J.

This is an appeal on questions of law from the judgment entered March 12, 1957 by the Franklin County Common Pleas Court, Division of Domestic Relations. It is claimed that the court below committed prejudicial error in dismissing a petition to vacate a judgment granting a divorce.

In the opinion, Melbourne H. Draper, the husband, plaintiff-appellee, will be referred to as plaintiff and Lillian A. Draper, his wife, defendant-appellant herein, will be referred to as defendant.

It appears that the parties were married June 22, 1947 in St. Paul, Minnesota and that two children were born of the marriage — Debra Susan on March 12, 1949 and Wanda Marlene on June 30, 1950, both of whom have since been and are now in the custody of their mother.

It appears that Draper enlisted in the Air Force and after serving at several stations, on April 14, 1951 was assigned to the 301st Food Service Squadron, Lockbourne Air Force Base near Columbus, Ohio and from and after August 1, 1951, Draper, who held the title of Staff Sergeant in the Air Force, resided at 3777 Alum Creek Drive, which address is not a part of the Air Force Base and is located within Franklin County, Ohio.

On August 21, 1054, Sgt. Draper filed his petition for divorce charging that Lillian A. Draper was guilty of wilful absence for more than one year, it being the claim of plaintiff that his wife had left him on November 7, 1949 and had not associated with him since that date.

According to the transcript, the court below heard the case on December 29, 1954, rendered judgment, no answer having been filed, and granted the prayer of Sgt. Draper’s petition for divorce from Lillian A. Draper but awarded custody of the two minor children to Mrs. Draper. On June 25, 1955, Mrs. Draper filed a petition to vacate the judgment granting her husband a divorce and tendered an answer which denied she was guilty .of wilful absence. As the dismissal of the said petition to vacate the divorce decree is the sole error claimed, it will be necessary to consider the allegations of this petition.

The prayer of the petition was that the divorce decree be vacated and set aside and the defendant permitted to file an answer. It was claimed that the husband obtained the divorce “through fraud practiced upon her (Mrs. Draper) and through irregularities on the part of the plaintiff (Sgt. Draper) in obtaining said judgment.”

In support of her claim of fraud and irregularities, Mrs. Draper in her petition alleged in part as follows: '

“1. That said plaintiff was at the time of the filing of his petition a member of the Armed Forces, specifically, The Army Air Force, 301st Food Handling Squadron, Lockbourne Air Base, Franklin County, Ohio. Further, that the plaintiff enlisted in the Armed Forces at Chanute Field in the State of Illinois; that at the time of said enlistment the plaintiff and the defendant were living as man and wife in a permanent domicile located at 5107 Youngs Road, R. F. D. No. 2, Jackson, Michigan.
“2. That the plaintiff filed his petition August 21, 1954 giving the address of the defendant as 490 Collins Street, St. Paul, Minnesota; that on the same day plaintiff filed an affidavit that the defendant’s last known address was 940 Collins Street, St. Paul, Minnesota; that on August 25, 1954 the plaintiff caused publication pursuant to his attempt to secure service by publication, to be made using an address of 1541 B. Timber Lake Rd., St. Paul, Minnesota; that said publication appeared August 25, 1954, September 1, 8, 15; 22 and 29, 1954, using said address. That the plaintiff on November 12, 1954 did file a second affidavit stating that the defendant’s last known address was 1541 B. Timber Lake Rd., St. Paul, Minnesota. That plaintiff had knowledge of this address prior to the publication on August 25, 1954. Further that this Court rendered its Decree on December 29, 1954. That there was no publication made at any time after the filing of the plaintiff’s affidavit under date of November 12, 1954.
“Defendant therefore says that this plaintiff did not have at the time of filing of his petition bona fide residence and domicile in the State of Ohio and Franklin County for the length of time as required by statute, §3105.03 R. C. Further, that the plaintiff did know the defendant’s address at the time of the filing of his petition or could have with reasonable diligence ascertained same and that the defendant has not been properly served by publication as required by Statute, §3105.06 R. C.”

With reference to the claim that Sgt. Draper was a resident of Jackson, Michigan at the time of his enlistment in the Armed Forces from which it would appear to be the claim of Mrs. Draper that he, therefore, could not several years later be a resident of Ohio and of Franklin County, the trial court on March 12, 1957 made a finding “that the plaintiff, at the time of the filing of his petition was a bona fide resident of the State of Ohio and (had) a domicile in the State of Ohio for more than one year preceding the filing of said petition and had been a bona fide resident of the County of Franklin for more than ninety (90) days immediately preceding the filing of his petition.”

It appears to be well settled that the domicile of a person entering the Armed Forces is not changed by the mere fact that he changes his place of abode but on the contrary is presumed to remain as it was at the time of entering upon such service. It appears equally clear that upon the presentation of proper evidence a member of the Armed Forces may show he has in fact changed his domicile. This subject has been considered exhaustively in a series of annotations including 106 A. L. R. 6, 148 A. L. R. 1413, 156 A. L. R. 1465 and 159 A. L. R. 496. In 148 A. L. R. 1413 there is a discussion of the general rules governing the gaining or losing of a residence by a soldier or sailor because of his transfer from one place to' another under military orders. The following statement appears at page 1413 of the above annotation:

“The terms ‘domicil’ and ‘residence,’ although sometimes used synonymously, are frequently held not to be convertible and to have distinguishing characteristics. ‘Domicil’ ordinarily has a broader meaning than ‘residence.’ It includes residence. Actual residence, however, is not essential to retain domicil after it is once acquired. Residence is, furthermore, preserved by an act; domicil, by an act coupled with an intent. Domicil is not determined by residence alone. * * *” See 17 Am. Jur. 593, 594, Domicil, §9.
“It is universally held that in order to acquire a domicil by choice these elements must concur; (1) residence (bodily presence.) in the new locality, and (2) an intention there to remain. Act and intent must therefore concur and the absence of either of these thwarts the change. In addition, there must be an intention to abandon the old domicil.

The same annotation at page 1414 says as follows:

“The residence or domicil of a person in the military or naval service is simply a question of intent. The actual residence of a soldier or sailor, since it is not the result of his own volition, does not, of itself, operate to change the residence or domicil which he had when he entered the service. Therefore in absence of a contrary intent, it will be assumed that that continues to be his present residence or domicil.”

Again at page 1415 of said annotation it is stated:

“But the actual residence of a soldier or sailor may become his residence or domicil if there are other circumstances sufficient to spell out an intent on his part to abandon his original residence or domicil and adopt a new one.”

The right of a person in the Armed Forces to select a domiciliary residence different from that which he had when he entered the Armed Forces is recognized in Glassman v. Glassman, 75 Oh Ap 47.

It is, therefore, our conclusion that the trial court correctly found that Sgt. Draper met the requirements of residence or domicile within the State of Ohio and within Franklin County, Ohio to permit him to bring the action for divorce.

The second objection raised by Mrs. Draper has to do with alleged defects in service by publication. It appears that in the affidavit filed by Sgt. Draper he clearly stated that Mrs. Draper could not be served within the State of Ohio and that her last known address was in St. Paul', Minnesota. In the caption of the petition Mrs. Draper’s address in St. Paul is 490 Collins Street, which street address was set forth in the affidavit for service by publication. However, in the legal advertisement published six times in the Daily Reporter, Mrs. Draper’s address is given as 1541 B. Timber Lake Road, St. Paul, Minnesota. However, the clerk of courts mailed the summons and copy of the petition on August 21, 1954 to Mrs. Draper at 490 Collins Street in St. Paul, Minnesota from which place it was returned unopened by the postal department. On November 12, 1954 a new affidavit was filed by plaintiff setting forth the address as 1541 B. Timber Lake Road, St. Paul, Minnesota and the clerk made a new mailing of the summons and copy of the divorce petition to Mrs. Draper at 1541 B. Timber Lake Road, St. Paul, Minnesota. On behalf of Mrs. Draper it is claimed that because there was not a new publication in the newspaper after the filing of the second affidavit there was a fatal defect in service which rendered the court’s jurisdiction defective.

With this we do not agree. It is admitted by all concerned that Mrs. Draper in fact had resided at one time at 490 Collins Street in St. Paul, Minnesota. It also appears that after the petition and first affidavit were filed, plaintiff’s attorney by the exercise of commendable diligence found she had moved and proceeded to take steps which eventually resulted in actual (in addition to constructive) notice reaching Mrs. Draper. It is admitted by all concerned that the petition and summons mailed November 12, 1954 did actually reach Mrs. Draper. The fact that counsel she employed may have been negligent in not taking any action during the six weeks which followed cannot be charged to the plaintiff. The fact remains that Mrs. Draper did not file her petition to vacate the divorce decree for more than seven months after she had, by her own admission, received actual notice of the pendency of this action.

The trial court in ruling on Mrs. Draper’s petition to vacate the decree found that she was “duly served with summons and a copy of the petition.”

In our judgment the ruling of the trial court was correct. For the reasons above set forth, in the opinion of this court, the assignment of errors is not well taken and will be overruled and the judgment of the court below will be affirmed.

PETREE, PJ, MILLER, J, concur.


author: Per CURIAM:

text:
    OHIO-RIVER-FRANKFORT COOPERAGE CORPORATION, et al., Plaintiffs-Appellees, v. BRAINARD et, Defendants-Appellants.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24288.
    Decided February 20, 1958.
    Arthur J. Stern, J. R. Kistner, for plaintiffs-appellees.
    Philip J. Hermann, Payne & Hermann, for defendants-appellants.
   OPINION

Per CURIAM:

This appeal comes to this court on questions of law from a judgment entered by the trial court at the conclusion of the taking of testimony upon consecutive motions for judgment, the defendants’ motion seeking judgment against the plaintiffs on their petition and the plaintiffs’ motion seeking judgment against the defendants on their cross-petition. The judgment entered was for the plaintiffs on their petition against the defendants, assessing damages in favor of the plaintiffs in the sum of $2,476.24, and entering judgment for the plaintiffs against the defendants on defendant’s cross-petition.

The record discloses that this action came about as a result of a collision between plaintiff’s (Ohio-River-Frankfort Cooperage Corporation) truck and defendant’s (Howard Brainard) automobile, the accident occurring at 3:45 A. M., September 3, 1952 on Ohio Route No. 42, in the Village of Strongsville which is in Medina County. The plaintiff, The Employers’ Fire Insurance Co., it is alleged was obligated to the plaintiff (Ohio-River-Frankfort Cooperage Corporation) by reason of a policy of collision insurance which required it to pay the Cooperage Company $1184.24 by reason of said collision and was subrogated to the insured’s rights to that extent. The Cooperage Company’s petition prayed for damages because of the alleged negligence of the defendant, Brainard, proximately causing damage to and loss of the use of its truck and trailer equipment. This was in addition to the amount claimed by the Insurance Company, as plaintiff, under its contract of subrogation. The defendant, upon leave, made the Farm Bureau Mutual Automobile Insurance Company, a new party defendant. Under a subrogation receipt, this new defendant claimed damages against the Cooperage Company by reason of loss sustained by it under a policy of collision insurance issued to the defendant, Brainard. Its loss, in the sum of $1129.21, was based on the alleged negligence of the plaintiff Cooperage Company in causing damage to defendant Brainard’s automobile. The defendant Brainard also claimed damages for the balance of the damage to his automobile and for personal injuries as shown by such defendant’s third amended cross-petition. The record shows that the defendant Brainard was arrested for careless driving as a result of this accident, was taken before the Mayor of Strongsville where he entered a plea of guilty to careless driving.

At the conclusion of the taking of testimony and after the parties had rested their cases, the plaintiffs entered a motion for judgment against the defendants on their third amended cross-petition. The principal basis for this motion, as shown by the record, was that defendant Brainard’s plea of guilty to careless driving was an admission of negligence. After extended argument by all the parties, the court overruled this motion. Thereupon the defendant (Brainard) moved for judgment on plaintiffs’ petition, which motion was founded (as shown by the argument) on what the defendant claimed was admitted negligence of the plaintiff Cooperage Company’s driver in failing to avoid the accident which it was said he could and should have done in the exercise of ordinary care by his own admissions. Counsel for the plaintiffs then presented his motion as follows: “The plaintiffs join in the defendants’ motion, except that plaintiffs ask for judgment for a directed verdict in their favor on defendants’ cross-petition, or in the alternative, that a juror be withdrawn and judgment entered for plaintiff on defendants’ cross-petition and for judgment for the plaintiff on their petition.” The record then shows the following proceedings:

“THE COURT: Well, now, then it seems that since both sides have made motions for a directed verdict, or, in the alternative—
“MR. HERMANN:' Well,—
“THE COURT: — to enter judgment.
“MR. HERMANN: — on the one.
“THE COURT: This is a motion by the defendant for judgment on plaintiffs’ petition.
“MR. HERMANN: Only there is no motion on the defendant’s cross-petition at all.
“THE COURT: Well, now, then, under that situation the question presented by the petition and the answer thereto is a question to be decided by the Court and not by the jury.
“MR. HERMANN: I believe it is discretionary with the Court. However, we have the other problem.
“THE COURT: Pardon?
“MR. HERMANN: I believe it is discretionary; however, I won’t say it is. However, you have the other problem, that is, that still the Court has not been submitted the question on the cross-petition.
“Now, it would be a very difficult matter to submit to a jury any question—
“THE COURT: Well, at the present time the Court is presented with motions for .a directed verdict of both sides on the petition and the answer thereto and reply.
“Well, this will require just a few minutes’ study, and so if you will stand by I will go into it, gentlemen.
“MR. HERMANN: Judge, could I make a suggestion in that regard—
“THE COURT: Yes.
“MR. HERMANN: — that would resolve it? Of course, that is for the Court’s discretion or maybe the Court’s right, whichever it is the Court can exercise.
“THE COURT: Yes.
“MR. HERMANN: As I see it, the Court doesn’t have to rule on that matter. You can submit this to the jury and decide what to do after-wards.
“THE COURT: Well, I want to check some law on it. (Thereupon a recess was taken.)
“THE COURT: The Court has considered the respective motions of the parties to this lawsuit and the motion by the defendant — defendants for judgment on the plaintiffs’ petition is overruled.
“The motion by the plaintiffs for judgment on the plaintiffs’ petition and the answer thereto is granted.
“The second part of the motion of the plaintiffs for judgment on the plaintiffs’ third amended cross-petition — on the defendants’ third amended cross-petition and answer and reply thereto is granted.
<<>k * *
“MR. HERMANN: Wait, your Honor. I don’t follow that. There is no motion on that. The only motion made here is a motion on the part of the defendant for judgment on the plaintiffs’ petition for this defendant.
“THE COURT: That is right. And that motion is overruled.
“MR. HERMANN: All right. Then the plaintiff made a motion on the same — on the plaintiff’s petition, for judgment on the plaintiffs' petition, now, but there is no motion, whatsoever, before the Court or has been before the Court on the cross-petition.
“Now, how could the Court grant a motion upon that?
“THE COURT: At the conclusion of all the evidence in the case defendants move to enter judgment on the plaintiffs’ petition. Before defendants’ motion is ruled upon plaintiffs also move for judgment on the plaintiffs’ petition and to direct a verdict for plaintiffs or, in the alternative, to arrest the case from the jury and enter judgment for plaintiffs on defendants’ Brainard’s cross-petition. Case arrested from jury. Motion of defendant is overruled. Motion of the plaintiffs is granted. Finding and judgment for the plaintiffs against defendant Brainard in the sum of $2,476.24, to be divided as follows:
“To Ohio-River-Frankfort Cooperage Corporation $1,292, and to the Employers’ Fire Insurance Company $1,184.24. Finding and judgment in favor of Ohio-River-Frankfort Cooperage Company on the cross-petition of Howard Brainard and the Farm Bureau Mutual Automobile Insurance Company.
“MR. HERMANN: Your Honor, just a minute on this. In the first place, there is no motion on the second part at all. Now,—
“THE COURT: Now, if you will, when you get a chance, read the motion as presented by Mr. Kistner, you will find that the latter part of his motion is for judgment on the defendants’ third amended cross-petition.
“MR. HERMANN: Well, but that doesn’t take it away from the jury. I didn’t join in that. That is not taken away from the jury. Now, I will grant you that the first part, the question on the petition, where they join in, the Court has the right, I do not contest that.
“However, your Honor, I never joined in the other motion.”

The principal contention of the defendant, as shown by the quoted part of the record, and the argument that followed, is that the court having overruled the plaintiffs’ motion for judgment on defendants’ cross-petition, which was the first motion presented after both parties rested their respective cases, the motion entered by the defendants, in which the plaintiff then attempted to join, did not include a reconsideration of the plaintiffs’ motion for judgment for plaintiffs on defendants’ cross-petition. There can be no doubt, however, that the plaintiffs, in joining with defendants on their motion for a directed verdict, attempted to bring into its motion a reconsideration of its right to judgment on the cross-petition. There could have been no purpose in the plaintiffs joining with the defendants on their motion for a directed verdict against the plaintiffs (after plaintiffs’ motion, seeking judgment against the defendants as a matter of law, had been overruled) other than to withdraw the case from the jury and to submit questions of fact as well as of law in both the plaintiffs’ case and that of the defendants to the court under the supposed authority of the case of First National Bank v. Hayes & Sons, 64 Oh St 100, 59 N. E. 893 (overruled in the case of Carter-Jones Lumber Company v. Eblen, 167 Oh St 189, hereinafter cited), where the Supreme Court held in the first paragraph of the syllabus:

“1. Where, at the conclusion of the evidence in a case, each party requests the court to instruct the jury to render a verdict in his favor, the parties thereby clothe the court with the functions of a jury, and where the party whose request is denied, does not thereupon request to go to the jury upon the facts, the verdict so rendered should not be set aside by a reviewing court, unless clearly against the weight of the evidence.”

The court, having once denied plaintiffs a judgment in their favor, both on its petition and on the cross-petition of the defendants, as a matter of law, must have, as is shown by the record, attempted to require the court to decide questions of fact as well as questions of law on the assumed proposition that the parties by their respective and consecutive motions, waived a jury and submitted the entire case to the court. It is to be noted, however, that the defendants did not expressly waive the right to submit their case to the jury. In fact, they directly objected to the court’s action in proceeding without a jury after the last motions were' presented.

Since the trial of this case in the trial court, the case of The Carter-Jones Lumber Company v. Eblen, 167 Oh St 189, overruled the authority of the Hayes case, supra, and those that have since followed it. The syllabus of this case provides:

“1. Where, at the conclusion of the evidence in a case, each party moves the court to direct the jury to render a verdict in his favor, the parties do not thereby clothe the court with the functions of a jury, but they merely request, by consecutive motions, rulings on separate questions of law, and the sole duty of the trial court at that time to render its decisions on the motions, unless there is an express waiver of the jury by both parties, as provided in §2315.20 R. C. (Paragraph one of the syllabus of First National Bank v. Hayes & Sons, 64 Oh St 100, paragraph one of the syllabus of Strangward v. American Brass Bedstead Co., 82 Oh St 121, Perkins v. Board of County Commissioners, 88 Oh St 495, paragraphs three and four of the syllabus of Industrial Commission v. Carden, 129 Oh St 344, and paragraph one of the syllabus of Levick v. Bonnell, 137 Oh St 453, overruled.)
“2. Where the trial court, upon a consideration of consecutive motions for directed verdict, finds as a matter of law that reasonable minds could come to but one conclusion on the evidence, and that conclusion is in favor of one of the parties, it is the duty of that court to sustain the motion of such party and to overrule the motion of the other party, and the reviewable question is whether it erred as a matter of law in such rulings.
“3. Where the trial court, upon a consideration of consecutive motions for directed verdict, finds that it can as a matter of law sustain neither motion, then it is its'duty to overrule both, and the question or questions of fact which it necessarily finds existent remain for determination by the jury, without the necessity of a request by counsel for submission thereto.”

It being clear from the record that the court in reaching its conclusions both on the petition and on the cross-petition did not find that the plaintiffs were entitled to judgment against the defendants on their petition and on defendant’s cross-petition as a matter of law. Under the authority of the case just cited (Lumber Company v. Eblen) which overruled the Hayes case, supra, relied on by the court, without an express waiver of a trial by jury, the defendants were entitled to have questions of fact presented by the pleadings submitted to the jury and to refuse to do so constituted prejudicial error.

The judgment is, therefore, reversed and the cause remanded for further proceedings according to law.

Exceptions noted.

SKEEL, PJ, HURD and KOVACHY, JJ, concur.