text:
    BOARD OF EDUCATION OF TERRACE PARK v. BOARD OF EDUCATION OF INDIAN HILL LOCAL SCHOOL DISTRICT.
    Common Pleas Court, Hamilton County.
    No. A-125649.
    Decided April 13, 1951.

      Robert G. McIntosh, Cincinnati, for plaintiff.
    Robert L. Black, Jr., of Cincinnati, for defendant, Board of Education of Indian Hill Local School District.
   ©PINSON

By WEBER, J.

This is an action to perpetually enjoin the transfer to the Indian Hill School District of certain territory within the corporate limits of the Village of Indiari Hill but now a part of the School District of the plaintiff, known as the Terrace Park School District.

The matter comes before the Court on the pleadings, an agreed stipulation of-facts, and the arguments and briefs of counsel. For convenience the agreed stipulation of facts is herein quoted.

Now come Plaintiff Board of Education of Terrace, Park Local School District and Defendant Board of Education of Indian Hill Local School District and stipulate that the following facts are true and that this cause may be submitted for the decision of the Court on this stipulation.

1. The Plaintiff Board of Education of Terrace Park Local School District is the duly constituted Board of Education of said local school district; the Defendant George Guckenberger is the Auditor of Hamilton County; the Defendant Hamilton County Board of Education is the duly constituted Board of Education of said county; and Defendant Board of Education of Indian Hill Local School District is the duly constituted Board of Education of said local school district.

2. On November 7, 1950, Terrace Park Local School District comprised all of the Village of Terrace Park as well as a portion outside of said Village, part of which was within the. Village of Indian Hill. Also on said date, the Indian Hill Local School District comprised the major part of the territory lying within the corporate limits of the Village of Indian Hill, as well as parts lying outside said Village, but did not include those parts of said Village lying within the Terrace Park Local School District, the Madeira Local School District and the Sycamore Local School District.

3. The Villages of Terrace Park and Indian Hill are duly constituted and organized municipal corporations under the Ohio General Code, classified as villages.

4. The map attached hereto, marked “Exhibit A,” and made part hereof, correctly sets forth the boundaries of said two local school districts and said two municipal corporations insofar as those boundaries are pertinent to this case.

5. Prior to November 7, 1950, certain residents of that part of the Village of Indian Hill lying within the Terrace Park Local School District initiated, circulated and filed with the Board of Elections of Hamilton County a petition under §4831-15 GC proposing to transfer such territory from Terrace Park Local School District to Indian Hill Local School District, so as to make the lines of Indian Hill Local School District coincide with the corporate lines of the Village of Indian Hill except in the case of those parts outside said Village. Defendant Board of Education of Indian Hill Local School District did not authorize, circulate or file such petition. A blank copy of such petition is attached hereto, marked “Exhibit B” and made a part hereof.

6. Said petition was granted by said Board of Elections, over the protest of Plaintiff, and the question was submitted to the electors of the territory affected on November 7, 1950. The vote at said election on the question of the transfer of that territory of the Village of Indian Hill lying within the Terrace Park Local School District from such school district to the Indian Hill Local School District was 65 in favor, and 1 opposed, as certified by said Board of Elections on or about November 17, 1950. A photostat of said certificate is attached hereto, marked “Exhibit C” and made a part hereof.

The form of the petition for an election, referred to in the stipulation and attached thereto as Exhibit B, is also herein quoted.

“We, the undersigned, being at least ten percentum (10%) of the qualified electors residing within that portion of Precincts A and B of the Village of Indian Hill, which is part of the Terrace Park Local School District, being a School District of another municipality, hereby petition the Board of Elections of Hamilton County, Ohio, proposing to transfer such territory to the Indian Hill Local School District, so as to make the lines of such District coincide with the corporate lines of the Village of Indian Hill, and request that the issue of whether or not said.territory be so transferred be submitted to the qualified electors of said territory at the next general election, all in accordance with the provisions of §4831-15 GC.”

The plaintiff claims that said transfer would be invalid because the proceedings alleged to authorize the same were taken under §4831-15 GC instead of §4831-13 GC. The plaintiff’s sole contention is that the procedure prescribed by §4831-15 GC applies only to transfers of territory which is a part of an autonomous school district, that is either a part of a city school district or an exempted village school district, whereas the plaintiff, the Terrace Park School District, and the defendant, the Indian Hill School District, are what are- known as local school districts, which are under the supervision of the County School Board and the territory of which can only be transferred according to the procedure prescribed by 4831-13 GC.

A proper determination of the question presented requires the preliminary resort to certain definitions.

Sec. 4677 GC:

“* * * the word ‘municipality’ shall mean a municipal corporation; * * *”

28 O. Jur. 40:

“A municipal corporation may be defined as a body politic and corporate consisting of the inhabitants of a definite area * * * and established under the authority of the State.”

Sec. 3497 GC:

‘‘Municipal corporations, which, at the last federal census, had a population of five thousand or more, shall be cities. All other municipal corporations shall be villages. * *

Sec. 4830 GC:

“The school districts of the state shall be styled, respectively, city school districts, local school districts, exempted village school districts, county school districts, joint high school districts and joint vocational school districts.”

Sec. 4830-7 GC:

An exempt school district is one “which contains within its territorial boundaries: (1) all the territory lying within the corporate limits of a village having a population of three thousand or more * * *; or (2) all of the territory lying within the corporate limits of a village having a population of two thousand or more * * * and a population outside of the corporate limits of said village, * * * sufficient to make the total population of such district three thousand or more, * * *” and which has notified the county' board of education that its school board, by a majority vote of its full membership, has declared that such local school board shall be exempt from the supervision of the county board of education.

Sec. 4830-4 GC:

“The territory within the territorial limits of a county, exclusive of the territory embraced in any city school district, exempted village school district, and excluding the territory detached therefrom for school purposes and including the territory attached thereto for school purposes shall constitute a county school district.”

Sec. 4830-3 GC:

“* * * All school districts created after the effective date of this act, other than city school districts, exempted village school districts, county school districts or joint vocational school districts, shall be known and styled as local school districts.”

As set forth in the agreed stipulation of facts the Indian Hill School District and the Terrace Park School District are local school districts.

Sec. 4831 GC, and subsections thereto, became effective in 1947. These sections provide the various methods for transferring and redistributing the territory within the various classes of school districts. All said transfers, except such as are provided by subsection 15, require action by the county-board of education and in some cases also by the superintendent of public instruction. Subsection 15 is the only section providing for transfers by a vote of the people and the transfer so accomplished is mandatory. The plaintiff claims that the transfer attempted in this case could be accomplished only according to provisions of subsection 13, which reads in part as follows:

“If a county board of education deems it advisable to transfer territory from a local school district within the county school district to an adjoining county school district or to an adjoining city or exempted village school district, such transfer may be made by the county board of education * * *. * * * a petition requesting the transfer of territory from a local school district of the county school. district to an adjoining county school district or to an adjoining city or exempted village school district, * *

The above procedure is not applicable to the situation ,under consideration, which involves the transfer of territory from a local school district to a local school district. A local school district is not included as a transferee in the above section.

In the case under consideration the procedure was taken under subsection 15 which reads in part as follows:

“In addition to and supplementary to the provisions of §4831-14 GC, if a petition, signed by ten per centum of the qualified electors residing within that portibn of a mmricipality which is part of a school district of another municipality, proposing to transfer such territory to the school district of the municipality of residence, so as to make the lines of such district coincide with the corporate lines of the municipality, is filed with the board of elections, there shall be submitted to the qualified electors of the territory affected the question of the transfer of such territory. If a majority of the electors voting on the proposal vote in favor thereof the transfer of territory shall be carried out on June 15 next following the date of such approval by the electors.

Standing alone there is no ambiguity in the above provisions. The word “municipality” is a technical word and, according to the statutory definitions hereinbefore quoted, includes all cities and villages. It makes no distinction between villages, based upon school district nomenclature but includes all villages. The character of the territory to be transferred has no particular reference to and is not qualified by the character of the school district from which or to which the transfer is to be made. The character of the territory itself, as a part of a city or any village, is the subject matter. The purpose is to transfer such corporate territory from the school district of another city or village to the school district of the city or village of residence, so as to make the lines of such school district to coincide with the corporate lines of the city or village of residence. If the word “municipality,” as used in the above sections, is given its proper meaning, the situation before the court fits exactly into , said provisions. Its application requires no addition, deletion, modification of meaning, or transposition of words. The territory in which the election was held is a portion of the village 'of Indian Hill, a municipality, and is a part of the school district of another municipality, the Village of Terrace Park, and the question voted upon was a proposal to transfer said territory to the school district of Indian Hill (the municipality of residence). But the plaintiff claims that §4831-15 GC cannot be read separately for the reason that it states:

“In addition to and supplementary to the provisions of §4831-14 GC.”

Subsection 14 reads in part as follows:

“If the board of education of a' city school district or of an exempted village school district deems it advisable to transfer territory from such district to an adjoining city or exempted village school district or to a county school district, or if a petition, signed by 75% of the qualified electors residing within that portion of a city or exempted village school district proposed to be transferred voting at the last general election, requests such a transfer, the board of education of the district * * *.

Not later than the first day of September the superintendent of public instruction shall either approve or disapprove a proposed transfer * *

The plaintiff claims that since subsection 15 is made supplementary to subsection 14, it must be interpreted in connection therewith and since the subject matter of subsection 14 is the transfer of territory which is defined by the character of the school district from which it is to be transferred, the character of the territory to be transferred under subsection 15 must also be defined, at least partially, by the character of the school district from which it is to be transferred.

Words and Phrases furnishes this definition:

“A supplementary act is that which supplies a deficiency, adds to or completes, or extends that which is already in existence, without changing or modifying the original, and is only to improve the existing statute by adding something thereto without changing the original text.”

Applying the above definition we are of the opinion that the above argument of the plaintiff is not sound, but, if so, it is still a question whether the legislature, by the words “supplementary to” intended to modify the plain and unambiguous meaning of subsection 15, when read alone, if a considerable ambiguity results. The inquiry is whether an ambiguity results if the argument of the plaintiff is adopted and applied. It claims that the word “municipality,” which is used several times in subsection 15, is limited in meaning to a municipality such as is referred to in subsection 14. that is any city or village whose entire territory is in the same school district (an exempted village school district), excluding all other villages. Subsection 15 if so interpreted, by changing the word “municipality” would read:

“If a petition signed by ten per centum of the qualified electors residing within that portion of a city or an exempted village school district (municipality) which is part of a school district of another city or exempted village school district (municipality), proposing to transfer such territory to the city or exempted village school district (municipality) of residence, so as to make the lines of such district coincide with the corporate lines of the city or exempted village school district (municipality) * * *"

This is a radical change in the technical meaning of the word “municipality.” Is such a change compelled by the mere use of the words “supplementary to”? This court is of the opinion that a negative answer to this question is found in the case of Wachendorf v. Shaver, 149 Oh St 231, 36 O. O. 554, from which we make the following lengthy quotation:

Syllabus 4 — “The fact that particular legislative enactment provides in the enacting clause that such enactment is supplemental to another statute is not controlling as to legislative intent and will be given no consideration by the court when the application of the language in the enacting clause would render the meaning of such particular enactment contrary to the clear intent of the Legislature as expressed therein.”

Page 236 — “In the construction of statutes, it is the legislative intent manifested in the statute that is of importance, and such intent must be determined primarily from the language of the statute, which affords the best means of the exposition of the intent. Indeed, it is the duty of the courts to give a statute the interpretation its language calls for where this can reasonably be done, and the general rule is that no intent may be imputed to the Legislature in the enactment of a law, other than such as is supported by the language of the law itself. The courts may not speculate, apart from the words, as to the probable intent of the Legislature. As a reason for these rules, it has been declared that the Legislature must be assumed or presumed to know the meaning of words, to have used the words of a statute advisedly and to have expressed legislative intent by the use of the words found in the statute; that nothing may be read into a statute which is not within the manifest intention of the Legislature as gathered from the act itself; and that the court may write no limitations therein. As variously expressed, the statute may not be restricted, constricted, qualified, narrowed or abridged. Hence, general words are to have a general operation, where the manifest intention of the Legislature affords no ground for qualifying or restraining them. Under this rule, where the statute is expressed in general language, it is to be applied to all cases coming within its terms. The Legislature will be presumed to have intended to make no limitations to a statute in which it has included by general language many subjects, persons or entities, without limitation. It is a general rule that courts, in the interpretation of a statute, may not take, strike or read anything out of a statute, or delete, subtract or omit anything therefrom,”

Page 243 — “The declaration of the Legislature in the title to the act that it is only supplementary legislation is by no means controlling, if the effect of the enactment is to change existing laws.

"This court is not holding that the title of an act may not be resorted to as an aid in the construction of the act if it is ambiguous, but when the act is unambiguous and the intent clear, the title of the act is for such resort of no consequence. The title of an act is never employed to defeat the clear intent of the Legislature.”

In the case of Wachendorf v. Shaver, supra, certain statutes provided for the incorporation of platted territory and adjacent unplatted territory by procedures before the county commissioners. Subsequently statutes were enacted providing that any territory could be incorporated by proceedings before the township trustees and these later statutes were made supplementary to the earlier statutes. 'It was contended that the words “any territory,” being contained in statutes supplementary to statutes covering platted land, could mean only unplatted lands. The court held that the words “any territory” must be given their plain and all inclusive meaning so as to include both platted and unplatted land and that the words "supplementary to” should be ignored.

In. the case at bar, the word “municipality” is used four times in subsection 15; whatever, its meaning, it should be the same throughout. The plaintiff claims that since subsection 15 is supplementary to subsection 14, the word “municipality” means cities and only such villages as are contained in exempted village school districts. The ambiguity created by such a meaning is made manifest when subsection 15, so interpreted, is attempted to be applied. An exempted village school district may contain territory outside its corporate limits but it must contain all the territory within its corporate limits. This being the case, no portion of the corporation contained in an exempted village school district can ever be a part of another school district and, therefore, in the case of such a village there can never be an occasion for transferring a portion of it to the school district of the village (municipality) of residence. Consequently, the interpretation contended for by the plaintiff not only requires that the word “municipality” in subsection 15 be given a restricted meaning but also that it be given different meanings in the same subsection. Applying such interpretation subsection 15 would read

Residing within that portion of a (municipality) city which is a part of the school district of another (municipality) city or another village contained in an exempted village school district, proposing to transfer such territory to the school district of the (municipality) city of residence.

' In view of the fact that if the word “municipality” is given its statutory meaning there is no ambiguity in subsection 15, it cannot be presumed that the legislature by the use of the words “in, addition to and supplementary to” intended to give the word “municipality” an unusual meaning and one which creates such inconsistencies and ambiguities. The words “in addition to and supplementary to” should be ignored.

The court holds that the word “municipality,” as used in subsection 15, includes all municipalities and means a city or any village; that the proceedings taken under authority of said subsection 15, as set forth in the agreed stipulation, are valid; that the portion of the Village of Indian Hill which was a part of the Terrace Park Local School District has been legally transferred by a vote of the people residing therein to the Indian Hill Local School District: that the temporary injunction should be and is hereby dissolved, and that the prayer for an order permanently enjoining such transfer should be and is hereby denied.


source: Caselaw Access Project

author: By ROSS, J.:

license: Public Domain

text:
    MEYER, Plaintiff-Appellant, v. CINCINNATI STREET RAILWAY CO., Defendant-Appellee. MEYER, Plaintiff-Appellant, v. CINCINNATI STREET RAILWAY CO., Defendant-Appellee.
    Ohio Appeals, First District, Hamilton County.
    Nos. 7405-7406.
    Decided May 28, 1951.

      William A. Geoghegan and Geoghegan, Levy & Davy, Cincinnati, for plaintiifs-appellants.
    C. R. Beirne, Cincinnati, for defendant-appellee.
   OPINION

By ROSS, J.:

Appeals upon questions of law, from final judgments in two cases, are presented to this Court. The first appeal, No. 7405, involves an action by a husband for expenses, loss of consortium and other damages due to injuries suffered by his wife, alleged to be the proximate result of the concurrent negligence of two defendants.

The second case, No. 7406, is an appeal in an action by the wife of the plaintiff in Appeal No. 7405, for damages for injuries so incurred by her.

These appeals are here considered together, and as disposition of the issues presented in No. 7406, involving the action by the wife, will also control the action of this court in No. 7405, involving the action by the husband, the second appeal, No. 7406 will be herein considered as to facts and law.

In each action, the Court sustained a demurrer to the petition for misjoinder of parties defendant, and the plaintiffs not desiring to plead further, final judgment dismissing the defendant, the Cincinnati Street Railway Company, from each action was entered.

Referring then to the petition in the action in which the appeal No. 7406 was taken, being the action of the wife for damages for her own personal injuries, it appears according to the allegations of the petition that the plaintiff was injured as the proximate result of the “joint and concurring acts of negligence” of the defendant Street Railway Company, in whose street car plaintiff was a pass'engér and of the defendant Walker, the operator of a truck, which he negligently permitted to collide with such street car.

The trial court sustained a demurrer to the petition on the ground that there was a misjoinder of parties defendant, basing its conclusion upon the premises that the degree of care appropriate to one defendant, the operator of the truck, was not appropriate to the Street Railway Company, which the trial court held was obliged to extend the highest degree of care to the passenger. The trial court relied upon the case of Seabold v. Dayton, 56 Abs, 417, as authority for its conclusion.

It appears from an examination of the Seabold case that plaintiff was injured while a passenger in a bus of a Street Railwáy Company, that plaintiff’s injuries were alleged to be the proximate result of the concurrent negligence of the Street Railway Company and the City of Dayton, in that the latter permitted a rotten tree to exist on a public street in such City, which fell upon the bus while plaintiff was a passenger therein. The Court of Appeals of the Second District relied upon Bello v. City of Cleveland, 106 Oh St, 94; Village v. Gilbow, et al., 81 Oh St, 272, 273; Agricultural Society v. Brenner, 122 Oh St, 560, 3d Syl. and page 574; Dash v. Fairbanks, Morse Co., 49 Oh Ap, page 62 and 63, and noted that the plaintiff relied upon two cases — Garbe v. Halloran, 150 Oh St, 476, and Cleveland Railway Company, et al., v. Heller, 15 Oh Ap 346.

In the instant proceeding on appeal before this Court the plaintiff-appellant contends that the authorities upon which the Court of Appeals of the Second District relied as well as Seabold v. City of Dayton are in direct conflict with the case of Wery v. Neff, et al., 136 Oh St, 307, the second, third, fourth and fifth paragraphs of the syllabus in this case are:

“2. The violation of an ordinance making it unlawful for the owner of a motor vehicle to permit a person under the age of sixteen years to operate such vehicle upon any thoroughfare of the municipality constitutes negligence as a matter of law.
“3. A parent violating such ordinance by placing his automobile in sole charge of his child, becomes answerable in damages on the basis of his culpability in affording the child the opportunity of inflicting harm, where injury to a third person on a street of the municipality follows as a direct result of the careless operation thereof.
“4. In the event of injury to a third person under such circumstances, liability of the parent and child is not only primary but joint and several, and -both may be joined as parties defendant in an action for damages on account of the injury.
“5. When two or more persons, under circumstances creating primary accountability, directly produce a single, indivisible injury by their concurrent negligence, they are jointly and severally liable, even though there is no common duty, common design or concerted action.”

The appellee, on the other hand, contends that the case of Agricultural Society v. Brenner, 122 Oh St, 560, still states the law, where defendants joined in an action owe different “degrees of care” to the plaintiff and that although Wery v. Neff, supra, may be considered as an authority for the rule that it is not necessary now to show joint or concerted action in order to permit joinder if the negligence of defendants joined in an action is concurrent, still the requirement that the degrees of care must also be identical is the law under Agricultural Society v. Brenner.. In other words, the contention of the appellee Street Railway Company is that the third paragraph of the syllabus in Agricultural Society case has not been completely overruled by the fifth paragraph of Wery v. Neff, supra, and that that paragraph may be still considered as law to the extent that in order to permit joinder of defendants, it still must appear that “the want of care of each is of the same character as the want of care of the other,” although the appellee still clings to the terminology “degrees of care.” Appellee seeks to reinforce this position by pointing out that the degrees of care of the defendants involved in Wery v. Neff were identical, and that the Supreme Court in the fifth paragraph of the syllabus did not specifically refer to the third paragraph of Agricultural Society v. Brenner, or state that the requirement of like character was no longer necessary for joinder.

The first contention of appellee, that Wery v. Neff involved defendants obligated by identical “degrees of care,” will be passed for the moment.

As to the second contention that Agricultural Society v. Brenner is not specifically overruled in the syllabus in Wery v. Neff (which of course is a fact), it appears from an examination of the Agricultural Society case that the third paragraph of the syllabus as well as that portion of the opinion on page 574 of the report consisted of obiter dicta, and, therefore, required scant attention by a Court later considering, such case as an authority. 11 O. Jur., 772, “Courts,” Section 123.

On page 574 of the opinion in the Agricultural Society case, Judge Marshall states:

“Even if there were negligence on the part of the agricultural, society, its want of care must be of a different character from that charged against DeMiehele. DeMichele is liable, if at all, for his negligence in leaving the explosive upon the fair grounds. The agricultural society is liable only if, knowing the existence of the explosive on the grounds, it failed to remove it.”

It would appear also from this quotation that even in such obiter and hence in the portion of the syllabus predicated thereon that the court did not consider “degrees of care” but. rather merely the character of care of joined defendants. In any event, in view of the attitude of the Court toward the merits of the ease and the absence of negligence by the Agricultural Society, it was entirely unnecessary to pass upon the subject-matter of the third paragraph of the syllabus.

At this point it seems appropriate, however, to consider what-has been said concerning “degrees of care.”

In 29 O. Jur., p. 408, section 26, “Negligence” it is stated:

“A classification of care into degrees is subject to the same criticism as a classification of negligence into degrees. In general, although exceptions apparently exist, the courts of Ohio have not differentiated as to the degree of care in an action for damages for a tort, the rule being that an individual is obligated to exercise ordinary care. What constitutes ordinary care necessarily varies with the facts and circumstances of each particular case. However, while the amount of care required may be different under various conditions, the degree required is the same, namely, that of ordinary care under all the circumstances. In other words, the amount of care exacted in specific cases may increase or diminish according to the circumstances, but the standard does not change. While the language of the Ohio cases occasionally appears to be inconsistent with this outlook, the underlying philosophy of Ohio negligence law is in accord with it. Por example, it is asserted that the duty of a common carrier of passengers, under most circumstances, is. to exercise the highest degree of care for their safety. This ‘highest degree’ of care, however, may well- be regarded as but ‘ordinary’ care- under the circumstances, the carrier-passenger relationship constituting one of the most significant circumstances.”

See, also: 29 O. Jur., p. 400, Section 20, “Negligence.”

Now, if the same character of care is required, then it may be safely concluded that few, if any, cases would arise where such character of care would be identical. Certainly, the several characters of care involved in Wery v. Neff were no more similar than those involved in Agricultural Society v„ Brenner. The former case involved the violation of wholly dissimilar city ordinances by the defendants; the second case involved an obligation on the part of DeMichele not to leave an explosive on the fair grounds and an obligation on the part of the Agricultural Society not to leave it on the fair grounds after notice of its existence thereon.

The appellee cannot sustain its position by the assertion that in Wery v. Neff both defendants were charged with negligence per se. Even if such were the case, the description of negligence as per se does not refer to a differentiation of character or degree of care, but to the method of proof. In Swoboda v. Brown, 129 Oh St, 512, the 4th paragraph of the syllabus is:

“The distinction between negligence and ‘negligence per se’ is the means and method of ascertainment. The former must be found by the jury from the facts, the conditions and circumstances disclosed by the evidence; the latter is a violation of a specific requirement of law or ordinance, the only fact for determination by the jury being the commission or omission of the specific act inhibited or required.”

Appellee refers to a statement of Judge Zimmerman in Wery v. Neff, at page 312 of the report, Vol. 136 Oh St, that: (Referring to Agricultural Society v. Brenner.)

“Concerning this case it is submitted that the judgment of reversal was quite proper, but that the general proposition of law contained in the third paragraph of the syllabus, to the effect that tort-feasors may be joined only when they have acted in concert in the execution of a common purpose and when their negligence is of the same character,' is too narrowly stated. ‘Joint Torts and Several Liability’ (Prosser), 25 California Law Review, 413, 432; Boyd v. Watts, 27 Oh St, 259, 269; Covington Transfer Co. v. Kelly, 36 Oh St, 86, 90, 38 Am. Rep., 558.”

This last case cited by Judge Zimmerman is of peculiar interest. The case involved an action by a passenger on a street railway car, who was injured when such car of a defendant collided with a wagon of a co-defendant in Cincinnati, Ohio. At page 90 of the opinion in Transfer Co. v. Kelly, 36 Oh St, 86, supra, it is stated in the opinion:

“The exact question presented by this record, as we understand the bill of exceptions, arises upon the fact assumed in the request to charge and in the charge as given to the jury, that the wrongful acts of the defendants below, the railroad company and the transfer company, were not only concurrent in point of time and place, but in such manner that the wrongful act of each was a direct and proximate course of the injury complained of by the plaintiff; and this being so, it matters not whether the act of each, without the concurrence of the other, would have produced the injury, or, that the negligence of neither would have caused it without such concurrence; so that upon general principles and reason both or either ought to make compensation therefor. The general rule undoubtedly is, that where damage is caused by the joint or concurrent wrongful acts of two or more persons, they may be prosecuted therefor jointly or severally.”

And, again, on page 93 of the opinion, it is stated:

“But, however, this may be, we are unanimous in the opinion that for a personal injury to a passenger, who is himself without fault, occasioned by the joint and. concurring negligence of the carrier and another person, there is no sound-principle of law which precludes the injured party from seeking redress from both or either of the wrong-doers.”

The rule in Wery v. Neff is reaffirmed in Garbe v. Halloran, 150 Oh St, 476.

Considerations of reason and justice do not tend to support the position of the appellee Street Railway Company. If Walker, the operator of the truck which collided with the street car in the instant ease were complaining about being-associated with a co-defendant, who, by reason of the circumstances in this case, was required to use more care toward its passenger than he, Walker, was required to use in the operation of his truck, a Court, if the law were not fixed as it is, might be inclined to consider some possible prejudice as to him in being so associated with such co-defendant. But how the Street Railway Company in the present action can so claim any possible prejudice is entirely beyond conception.

It is the conclusion of this Court that the judgment of the trial court in each of the cases must be reversed and the cases remanded to such court, with instructions to overrule the demurrers in each case.

Judgment may be so entered.

HILDEBRANT, PJ, MATTHEWS & ROSS, JJ, concur in syllabus. opinion & judgment.


author: By HESS, J.:

text:
    THORPE, Plaintiff, v. KOERNER, Defendant
    Common Pleas Court, Hamilton County.
    No. A-121321.
    Decided December 18, 1950.
    Thomas & Hirsch, Cincinnati, for plaintiff.
    Benjamin S. Schwartz, Leonard Kirschner, Cincinnati, for defendant.
   MEMORANDUM OPINION

By HESS, J.:

This cause came on to heard on the demurrer of the defendant to the petition of the plaintiff and was submitted to the Court on the briefs of the parties.

The petition of the plaintiff is as follows:

“Now comes the plaintiff and for her cause of action says that on or about the 19th day of December, 1941, at a regular term of the Court of Common Pleas of Clermont County, State of Ohio, in an action therein numbered 20527 wherein the defendant herein was defendant and this plaintiff was the plaintiff, this plaintiff recovered a judgment against the said defendant for the care, comfort, maintenance and support of their two minor children in the sum of Sixty Dollars (S60.00) per month.
"Plaintiff says that said court, at the time of the rendition of the aforesaid judgment, had acquired jurisdiction over the person of the defendant by summons personally served on him; that said judgment is a valid and subsisting order against the defendant.
“Plaintiff further says that during the period from May 1, 1945 to June 15, 1947, a period of approximately twenty-five and one-half (25%) months, the defendant made no payment whatsoever.
“Plaintiff says therefore that there is due from this defendant the sum of One Thousand Five Hundred and Thirty Dollars ($1,530.00), and that she has made demands upon the defendant for the payment of the amount due but that he, the defendant, has failed, neglected and refused to pay the same.
“Wherefore, plaintiff prays judgment against this defendant in the sum of One Thousand Five Hundred and Thirty Dollars, ($1,530.00), with interest at Six per cent (6%) per annum from June 15, 1947, and for all other relief to which she is equitably entitled.”

The defendant bases his demurrer upon two grounds, viz: one, that the Court of Common Pleas of Hamilton County, Ohio, does not have jurisdiction to hear the cause; and two, that plaintiff does not set forth a cause of action.

There is no copy of the decree of divorce attached to the petition, but the petition recites the “plaintiff recovered a judgment against the said defendant for the care, comfort, maintenance and support of their two minor children in the sum of Sixty Dollars ($60.00) per month.” There is no indication in the petition herein that there was a motion to modify the decree within the term of its rendition.

It must be considered, insofar as the demurrer is concerned, there was a final order in the divorce matter which could be attacked after term only by petition.

■ The petition in the instant case was filed April 25, 1950, and claims judgment for One Thousand Five Hundred and Thirty Dollars ($1,530.00), being the sum claimed under judgment in the Clermopt County Court for twenty-five and one-half (25%) months from May 1, 1945 to June 15, 1947. There is no allegation in the petition that the Clermont County, Ohio, court reserved continuing jurisdiction.

The defendant relies upon the cases of Meister v. Day, 20 Oh Ap, 225, and Collins v. Collins, 69 Oh Ap, 329. In each of those cases the original court reserved continuing jurisdiction. Actually, the Collins case was decided upon the question of notice of the pendency of the proceedings.

The defendant, in the instant case; is admittedly a resident of Hamilton County, the plaintiff now also being a resident of Hamilton County. In the event that the defendant’s demurrer, should be sustained there would be no method whereby the plaintiff might obtain redress, since it is now impossible to obtain service upon the defendant within the jurisdiction of the trial court.

In the Collins case, Van Almsick v. Van Almsick, 69 Oh Ap 425, 24 O. O. 169, is cited in support of the proposition that an order for support of minor children, payable in install- - ments, is to be considered in the same category as an order for alimony payable in installments.

In the Van Almsick case the plaintiff had filed a motion, in the original divorce cause, and under the same number, for a judgment against the defendant for the amount of the arrearage under a previous order for alimony payments. (It should be noted that both the plaintiff and the defendant were residents of Franklin County, and still subject to the jurisdiction of the divorce court.)

The trial court rendered judgment in favor of the plaintiff, and an appeal was prosecuted, the defendant relying upon the case of Meister v. Day in support of his contention that the remedy of the plaintiff was to first seek a modification of the order for alimony by reducing it to an order for payment of a lump sum.

The judgment of the trial court was affirmed by the Court of Appeals, the court holding in part “the plaintiff, of course, did not desire modification. She merely wanted the court to fix the amount then due under the former orders of the court, as the sum which would be carried into a judgment. Nor did the defendant desire a modification of the former orders. In this situation we are constrained to hold that it is too nice a discrimination to require that the alimony order first be changed in terms before the effect of the finding of the court can be carried into judgment. The plaintiff should not be denied the benefit of the continuing order for the payment of the weekly installments of alimony or support money which should and will continue to accrue until there has been some order to the contrary.”

The same court also discusses the federal rule, citing the case of Barber v. Barber, 62 U. S., 582; Lynde v. Lynde, 162 New York, 405; and Sistare v. Sistare, 218 U. S., 1, and, in my opinion, holds in favor of the proposition that the previous order of the court need not be first modified before a judgment for back payments of alimony or support can be obtained.

Justice White said in Sistare v. Sistare, supra, page 22, “the methods of enforcing payment of the future alimony awarded, provided by the statute, all contemplate the collection and paying over as a matter of right of the installments as they accrue as long as the judgment remains unmodified, or at least until application has been made or permission to make one in pursuance to the statute has been accorded.”

Authority for the proposition that an award for alimony-payable in installments constitutes a final judgment within the full faith and.credit clause of the constitution, so far as installments already accrued are concerned, is found in Armstrong v. Armstrong, 117 Oh St, 558.

In that case the plaintiff had obtained a divorce and a sum payable in installments was awarded as alimony and for the support and maintenance of the children of the parties by a Kentucky court. The defendant subsequently became a resident of the state of Ohio, and the plaintiff brought suit in the Court of Common Pleas of Hamilton County for a judgment in the sum of $3,065.00, the amount of unpaid back installments.

The Court cites the federal rule laid down in the cases of Sistare v. Sistare, supra., Lynde v. Lynde, supra., and Barber v. Barber, supra. The Court held that “in the absence of modification the judgment is enforceable as awarded. , Is the wife to be precluded from the enforcement of her judgment in another state, where the husband has become a resident, because perchance he would have been permitted to file an application for modification thereof had he felt disposed to submit himself to the jurisdiction of that Court?”

Further authority for the proposition that a judgment awarding alimony payable in installments is a full and final judgment under the full faith and credit clause of the Constitution is found in the case of Kettenring v. Kettenring, 29 Oh Ap 63.

In that case the plaintiff had obtained a divorce and an award for support of minor children and alimony. The award provided for a fixed sum of $2100.00 per year in monthly installments, and a definite arrangement for increase of this amount in .the event the defendant’s financial condition should warrant it. Plaintiff brought suit for back installments, and the defendant contended that the action should have been for a modification of the original decree.

The Court held that insofar as the payment of a fixed sum was provided in the original decree an action for judgment of unpaid installments would be sustained.

From the authorities above set forth the Court must come to the conclusion that the demurrer should be overruled.

An entry may be presented accordingly and giving the defendant fifteen days in which to plead.