author: By LYBARGER, J.:

text:
    MILLER, etc., Plaintiff, v. CLEVELAND (City) et, Defendants. GUDDY, Plaintiff, v. CELEBREZZE et, Defendants.
    Common Pleas Court, Cuyahoga County.
    Nos. 682312, 698109 & 698110.
    Decided August 12, 1957.

      Calfee, Fogg, McChord & Halter, Metzenbaum & Schwartz, Cleveland, Charles R. Miller, of Counsel, for plaintiff.
    Ralph S. Locher, Director of Law, William T. McKnight, Asst. Director of Law, Cleveland, for defendants.
   OPINION

By LYBARGER, J.:

The issues before the court arose in the three cases noted in the above caption. On motion causes Nos. 698,109 and 698,110 were consolidated, and by agreement the three cases were tried at the same time.

Cause No. 682,312 went to trial on plaintiff’s amended petition,' and specifically on the first, second and fifth causes of action thereof. In the first cause plaintiff seeks to have declared null and void an ordinance adopted by the Council of the City of Cleveland on March 12, 1956, No. 380-56, entitled “An emergency ordinance to appropriate property .... to be used partly for the airport freeway and partly for an incinerator site.” Plaintiff alleges that although the ordinance purports to be an emergency measure it does not set forth and define the emergency as is required by the Charter of the city. In his fifth cause of action plaintiff attacks the ordinance on the ground that, in violation of the Charter, it pertains to more than one subject.

Plaintiffs’ second cause asks to have declared null and void Ordinance No. 751-56, adopted by the Council on March 19, 1956 as an emergency ordinance to employ engineering services required for the construction of an incinerator. Plaintiff relies on the ground that the emergency was not set forth and defined as required by the Charter.

Causes of action Nos. 698,109 and 698,110, which were consolidated, pray the court to declare null and void Ordinance No. 1208-57, an emergency measure to issue bonds for the construction of an incinerator, which measure was adopted by the Council on May 20, 1957. Plaintiffs contend that the emergency was not set forth and defined as required by the Charter.

The facts are not in dispute: they have been stipulated by the parties; and the ordinances in question and the manner of their adoption are as stated in the pleadings and as summarized above.

In cause No. 682,312 the court must decide whether or not ordinance No. 380-56 is null and void because (a) it was not legally adopted as an emergency measure, and (b) it is not confined to one subject. In the consolidated cases the issue is whether or not the respective ordinances were legally adopted as emergency measure in keeping with the Charter.

At the outset it should be made clear that the court is not called on to interpret or apply the provision of Title VI1 of the Revised Code, Municipal Corporations, or specifically Sec. 731.30 thereof. The matter is governed by the Charter of the city of Cleveland. State, ex rel. Bindas, v. Andrish, 165 Oh St 441.

Light is thrown on the question of what is an ordinance by Sec. 39 of Rules of Council:

“Form of Ordinances.

“The enacting clause of all ordinances shall be: ‘Be it enacted by the Council of the City of Cleveland’ . . . .”

Section 33 of the Charter is in part as follows:

“All ordinances or resolutions, except ordinances making appropriations, shall be confined to one subject which shall be clearly expressed in the title . . . .”

At all times here in question there was in effect Section 36 of the city’s charter:

“All ordinances and resolutions shall be in effect from and after forty (40) days from the date of their passage by the council except as otherwise provided in this charter. The council may by a two-thirds vote of the members elected thereto, pass emergency measures to take effect at the time indicated therein. An emergency measure is an ordinance or resolution for the immediate preservation of the public peace, property, health, or safety, or providing for the usual daily operation of a municipal department, in which the emergency is set forth and defined in the preamble thereto . . . .”

The Charter provides for the right of the electors to the initiative and referendum. Section 59 reads:

“No ordinance passed by the council, unless it be an emergency measure, shall go into effect until forty (40) days after its final passage by the council. If at any time, within said forty (40) days a petition signed by electors equal in number to ten per cent (10%) of the total vote cast at the last preceding regular municipal election of the city be filed with the clerk of the council requesting that any such ordinance, or any specified part thereof, be repealed or submitted to a vote of the electors, it shall not become operative until the steps indicated herein have been taken. . .”

Another section is as follows:

“Ordinances passed as emergency measures shall be subject to referendum in like manner as other ordinances, except that they shall go into effect at the time indicated in such ordinances. If, when submitted to a vote of the electors, an emergency measure be not approved by a majority of those voting thereon, it shall be considered repealed as regards any further action thereunder; but such measure so repealed shall be deemed sufficient authority for payment, in accordance with the ordinance, of any expense incurred previous to the referendum vote thereon.”

The first point of law with which the court is concerned is whether the plaintiffs have the right by these actions to challenge the legality of the ordinances in question. The city contends that since plaintiffs did not use the right of initiative or seek a referendum on any of the ordinances, as they could have done under the Charter, they are precluded from relief by way of an action in equity. The City cites as authority, Youngstown v. Aiello, 156 Oh St 32, syllabus 4, of which-reads:

“Where a purported emergency ordinance enacted by the council of a municipality does not comply with the mandatory provisions of §4227-3 GC, and therefore does not go into immediate effect and no proceeding to institute a referendum or other challenge is made until after the expiration of the time limited for such attack, such ordinance takes effect in the same manner as other regular ordinances. (Vansuch, Dir., v. State, ex rel. Fetch, 112 Oh St 688, approved and followed.)

The’ facts of that case clearly distinguish it from the instant ones. There the court was interpreting a statute whose language is different from the charter provisions here applicable. There no challenge of any sort was made until after the period within which the ordinance took effect in the same way as other ordinances. Here suits were filed within the forty days mentioned in Sections 36 and 59 of the Charter. By using the words “or other challenge” the Supreme Court implied that a referendum was not the only means of challenging the validity of an ordinance designated as an emergency measure. The court said nothing which ruled out the bringing of a suit as a proper way to obtain relief against what is alleged to be an invalid ordinance.

In Vansuch v. State, ex rel., 112 Oh St 688, the Supreme Court in an action on a purported emergency ordinance said in part (page 689):

“The record does not disclose any challenge . . . until the bringing of this suit . . . .” (an action in mandamus).

Here again the court recognized the bringing of a suit as a challenge to the ordinance, even though it held that the action was not in that case timely.

The instant suits were commenced within the forty days following adoption of the respective ordinances. They were timely and constituted a challenge of the emergency ordinances. The court therefore has the duty of passing on the validity and effect of the questioned enactments.

Next the court must determine whether there is anything inherently illegal in the ordinances themselves irrespective of the manner of their passage. Originally the plaintiffs contended that there were legal objections to the purposes sought to be served by the ordinances. Causes of action reciting such claims however were dismissed at the time of trial. There remains the question whether Ord. 380-56 is “confined to one subject” as required by Sec. 33 of the Charter.

The ordinance is entitled: “An emergency ordinance to appropriate property located between Ridge Rd. and West 58th Street, south of Denison Avenue to be used partly for the airport freeway and partly for an incinerator site (Louis Viny parcels). “What is the subject of the ordinance? The appropriation of private property; the acquisition of all the land of Louis Viny in the given area for public use. The court holds that the ordinance is confined to one subject, the appropriation of Louis Viny’s property. The uses to which the city proposes to put the parcel of land in question, although more than one, do not alter the singleness of the subject of the ordinance.

It should be observed that a provision such as that in Sec. 33 is not mandatory but directory in character. This was the holding of the Court of Appeals in a well reasoned decision in City of Toledo v. Kohlhofer, 96 Oh Ap 355. Syllabus 6 reads:

“The provision of the Charter of the City of Toledo that an ordinance shall not contain more than one subject which shall be clearly stated in the title thereof is directory in character.”

The court holds therefore that the enactment of Ord. 380-56 did not violate Sec. 33 of the Charter as contended in the fifth cause of action in case No. 682312.

The only remaining ground for plaintiffs’ challenging of the three ordinances is that each fails to define in a preamble the emergency with which it purports to be concerned and all are therefore in violation of Sec. 36 of the Charter.

Sec. 36 of the Charter demands close scrutiny. First it says that ah ordinances shall be in effect forty days from the date of their adoption, with certain exceptions not here applicable. Then it allows council by a two-thirds vote of its members “to pass emergency measures to take effect at the time indicated therein.” Next it defines an emergency measure and says that it is “an ordinance or resolution for the immediate preservation of the public peace, property, health, or safety, or providing for the usual daily operation of a municipal department, in which the emergency is set forth and defined in a preamble thereto.”

The language of Sec. 36 is quite different from that of §731.30 R. C., which is the statute applicable to emergency ordinances in municipal corporations that have not adopted a charter. Therefore cases interpreting the statute must be reviewed with caution when their principles are sought to be applied in passing on the above charter provision. The statute does not specifically define emergency measures; the charter does. The statute makes it mandatory to set forth in one section of the ordinance itself the reasons for the necessity; the charter, after telling what an emergency measure deals with, adds to the description the words: “in which the emergency is set forth and defined in a preamble thereto.”

The term “set forth” means “to present to view; to display; to publish; to give an account.....by describing.....” — Webster’s New International Dictionary. The verb “define” means “to state explicitly . . .to make clear.” Black’s Law Dictionary.

In the case of State, ex rel. v. East Cleveland (1919) 31 O. D. 98, this court had before it the need of interpreting language in the charter of the City of East Cleveland practically the same as that in Sec. 36 of Cleveland’s present charter. There the emergency had to be “set forth and defined in the preamble” of an emergency ordinance. In the ordinance there challenged Council did what was done in the instant case; passed a measure which in the preamble adopted the language of the ordinance. Judge Foran on page 103 of the opinion said:

“The most that can be said of this preamble is that it adopts the language of Sec. 14 of the charter, and does not set forth or define the emergency.”

In the present case the court holds that the ordinances here challenged did not contain preambles in which the respective emergencies in each were “set forth and defined” as required by the charter in order to characterize the measures as emergency legislation.

The last point of law with which the court must deal bears on the question of what was the effect of the failure of the purported emergency ordinances to include in their preambles language which set forth and defined the emergencies they sought to meet. Did failure to comply with Section 36 of the charter vitiate the legislation completely? Or did it knock out the emergency character of the measures but still permit them to go into effect forty days after enactment as in the case of non-emergency ordinances?

As has been indicated above, this court in the case of State, ex rel. v. East Cleveland, 31 O. D. 98, was passing upon charter provisions parallel to those now before the court. Judge Foran held that the ordinance there challenged did not set forth and define the emergency as required. On pages 104-5 the court said:

“The purpose of an emergency ordinance, under the charter of the city of East Cleveland, was clearly to avoid recourse to a referendum, and for the purpose of having the ordinance take effect upon and after its passage, and for that reason, Sec. 14 provides that the emergency must be set forth and defined in the preamble of the ordinance; but, after all, is this not merely directory? Can it be said to be a mandatory provision?

“It might be tested in this way: When this ordinance was passed, admitting that it failed to set forth and define the necessity for the emergency, yet, would such omission have prevented the citizens of East Cleveland from filing the petition for referendum provided for by Sec. 44 of the charter? We think not. If such petition had been filed in accordance with the provisions of Sec. 44, with the clerk of the city commission, as provided for in Sec. 45 of the charter, and the clerk had refused to receive it, or the commission had refused to act upon it, mandamus would undoubtedly lie, and a referendum could be had, as the court would undoubtedly say that, because of the omission to set forth and define the necessity for the emergency, the ordinance did not take effect, from and after its passage, and was subject to referendum. No referendum, however, was taken, no petition for referendum was filed and more than thirty days having elapsed before the relator filed his petition, it must be held that the ordinance is in effect, in so far as it is constitutional and valid.

“An emergency act cannot be passed by the legislature of the state of Ohio, unless it receives a two-thirds majority of both houses; and under the charter of the city of East Cleveland, four of the five commissioners must agree to an emergency ordinance, before it can be passed as such; yet, in Miami Co. (Comrs.) v. Dayton, 92 Oh St 216, the court say, in part 10 of the syllabi:

“ ‘An act of the general assembly, purporting to be an emergency act but which failed to receive the two-thirds majority in one branch of the general assembly, as required by the constitution for an emergency act, becomes at the end of the ninety-day referendum period a valid act of the general assembly if otherwise constitutional.’

“So that, on this authority, it must be held that, the thirty-day referendum period provided for by the charter of East Cleveland for the taking effect of ordinances, having elapsed, before the relator filed his petition, and no referendum petition having been filed, the ordinance is a valid ordinance, unless it is unconstitutional because of some other reason than that there was not a compliance with section 14 of the charter.”

In Youngstown v. Aiello, supra, the court held that a purported emergency ordinance which failed to comply with the mandatory provisions of the statute, did not go into immediate effect but took effect ••in the same manner as other regular ordinances.” The same conclusion was reached in State, ex rel. Johns v. Bruss, 99 Oh Ap 314.

It must be noted, however, that in all of the last three cases cited the ordinances were not challenged by suit until after the time for a referendum had lapsed. The courts therefore held that “an ordinance cannot be attacked for irregularities or defects in an emergency clause when the petition asking for relief is filed after the period for filing a petition for referendum has elapsed and no petition for referendum is filed.” (Syllabus 2 in State, ex rel. v. East Cleveland, supra.)

In the instant case, as has been indicated, plaintiffs made a timely challenge of the ordinances. What did they challenge? The emergency clause in the preambles. There are three parts to what is commonly called an ordinance: the title, the preamble and. the ordinance itself, which is the part of the measure following the words “Be it ordained by the Council of the City of Cleveland.” The charter provides that the preamble shall contain a definition of the emergency. (Sec. 731.30 R. C., which is not here applicable but was involved in Youngstown v. Aiello, says that in an emergency measure the reasons for the necessity “shall be set forth in one section of the ordinance.”)

Granted the preambles of the ordinances here involved are faulty, still there is nothing contra to the charter or otherwise illegal in the ordinances themselves. The fact that the emergency feature of the ordinances failed does not make the ordinances illegal. Their legality depends not on what was said or not said in the preambles, but what is contained in the body of the measures themselves. Having lost the status of emergency measures they did not go into effect immediately but “from and after forty days from the date of their passage by the council.” (Charter, Sec. 36.) No other conclusion can be reached from any of the reported cases that have dealt with the problem. No case has said that an ordinance was invalid merely because it failed for some reason to have attached to it an emergency clause that satisfied either the statute or a charter provision. The court is convinced that the decision in Youngstown v. Aiello (and the other decisions cited) would have been the same even if the suit had been filed within the time limited for attaching the ordinance. Had the ordinance been illegal because of failure of the emergency feature, the court would have said so, and not have let stand an invalid measure just because it was not questioned within the time limit.

For these reasons the court holds that although the attempt.-to adopt the ordinances as emergency measures failed, still they are valid and they became effective in the same manner as other regular ordinances. Plaintiffs are not entitled to the relief prayed for, and judgment in each case is rendered for the defendant city and all others who have been joined as parties defendant.


source: Caselaw Access Project

author: Per CURIAM:

license: Public Domain

text:
    PARTLOW, Estate of, In re.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24243.
    Decided November 27, 1957.
    Sidney M. Cornrich, Morton D. Barrisch, for appellee.
    Jerome W. Moss, for appellant.
   OPINION

Per CURIAM:

Appellant filed a motion in Probate Court to vacate the appointment of one Sidney C. Partlow as administrator of the estate of Adeline Partlow (or Aileen Knight, as deceased is referred to by appellant) and as such is entitled to be appointed administrator of her estate. Sidney C. Partlow is the brother of decedent.

The issue presented to this court by the parties is whether, in contemplation of law, after the disability to a common law marriage is removed (in this case by appellant’s divorce in 1946) the parties are to be considered as husband and wife. Certainly the evidence shows that appellant and decedent continued to live together and to hold themselves out to the community as husband and wife after the disability was removed.

There being no evidence in the record to show that the decedent was under a disability to enter into a common law marriage and appellant’s disability to marry having been removed by a divorce in 1946, there is ample evidence in the record to establish all the elements of a common law marriage between appellant and decedent, including an agreement to marry in praesenti under the test set down by the Supreme Court in Markley v. Hudson, 143 Oh St 163, 54 N. E. 2d 304, syllabus two of which reads as follows:

“2. While such agreement to marry in praesenti must be proved by clear and convincing evidence, it may be established by proof of thé ■ acts, declarations and conduct of the parties and their recognized status in the community in which they reside.”

At page 16-7, the court said:

“* * * This court still adheres to the doctrine that it is essential to show an agreement between the parties in praesenti to become husband and wife in order to establish a common-law marriage, but this does not mean that such proof must establish an express agreement resulting in contract, or that such result may not be established by circumstances from which an agreement in praesenti may be inferred.” (Emphasis added.)

This court is unanimously of the opinion that the evidence of appellant established a common law marriage and that, therefore, in entering judgment for the appellee at the close of appellant’s evidence, the court erred because such judgment was manifestly against the weight of the evidence and in view of the evidence and the pronouncement of the Supreme Court in Markley v. Hudson, supra, it was error of law prejudicial to the rights of the appellant to enter judgment at the close of plaintiff’s case.

Therefore, in view of the fact that the court did not hear the whole case, the cause is remanded to the Probate Court with instructions to overrule the motion at the close of the plaintiff’s case and for further proceedings according to law.

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


author: By SKEEL, PJ.

text:
    LANG et, Plaintiffs-Appellants, v. OIL CITY REFINERS, INC. et, Defendants-Appellees.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23897.
    Decided March 28, 1957.

      John T. Corrigan, County Pros., for Joseph M. Sweeney, Sheriff. Woodle & Wachtel, for plaintiffs-appellants.
    Krewson, Lewis & Krewson, Robert M. Krewson, of Counsel, for defendant-appellee Oil City Refiners, Inc.
   OPINION

By SKEEL, PJ.

This appeal comes to this court on questions of law from a judgment entered for the defendants upon a motion for judgment on the pleadings. Both the plaintiffs and the parties defendant entered separate oral motions for judgment on the pleadings. The court overruled the plaintiffs’ motions and granted those of the defendants and entered judgment accordingly.

Under these circumstances, the facts are as pleaded and are, therefore, not in great dispute.

The plaintiffs’ petition alleges that by the judgment of the Court of Common Pleas of Cuyahoga County, they were found to have a valid interest in certain real estate which was thereafter by order of said court sold at public auction by the sheriff. The action was one in partition. The sale was conducted on March 6, 1950. The amount realized by the sale was $12,100.

The plaintiffs allege that immediately after the defendant sheriff received the consideration for the property, the defendant, Oil City Refiners, Inc., filed an action claiming to have an interest in the proceeds of the sale and praying that such interest be determined by the court.

The plaintiffs allege that the defendant, Oil City Refiners, Inc., in fact had no legal interest in said fund which fact was so determined on appeal when the Court of Appeals reversed a judgment in favor of the Oil Company entered in the Court of Common Pleas in said action and that, pending the final disposition of its case, the Oil Company wrongfully procured the sheriff to withhold payment of such money to the plaintiffs to which they were entitled by order of the Court of Common Pleas in the partition case, said order being entered on May 11, 1950.

The plaintiffs allege the amount due them by such order was $5,318.21; that payment was demanded but refused by the defendant sheriff because of the wrongful action and procurement of the defendant Oil Company.

The plaintiffs further allege that the refusal of the sheriff to pay plaintiffs their share of the funds held by him was without authority of law; that the said sheriff was at no time under legal restraint which in any way prevented him from making such payment and that the plaintiffs are entitled to interest at six per cent from the date they were entitled to receive payment of their share of the proceeds from the sale of the property, that is, interest from the eleventh day of May, 1950, until they received the money on April 15, 1953, such interest amounting to $934.23 for which amount plaintiffs pray for judgment against the defendants.

The answer of the defendant Oil Company admits that it filed the action seeking an interest in said fund in which the Court of Common Pleas had previously held the plaintiffs to have an interest; that on the trial of the Oil Company’s action, claiming a share in the fund held by the sheriff, in which action, when filed, a request for a temporary injunction was pleaded to prevent the sheriff from distributing any of the money claimed by the plaintiff but with regard to which claim for a temporary injunction no action was ever taken or order entered by the court as shown by the record. Upon trial, the Court of Common Pleas entered judgment for the Oil Company creating a lien in its favor on the funds in the sheriff’s hands. On appeal, this judgment was reversed whereupon the Oil Company abandoned its claim by not proceeding further and the sheriff then paid the money to the plaintiff.

The answer of the sheriff admits that the plaintiffs by decree in the partition case filed in the Court of Common Pleas of Cuyahoga County were adjudged an interest in certain property which was ordered sold by decree of the court; that this defendant carried out the decree and on March 6, 1950, sold the property at public auction for $12,100 and that on or before May 8, 1950, he received the full purchase.price. It is also admitted that on May 11, 1950, a decree was entered in the Court of Common Pleas in said partition case directing him, as sheriff, to pay each of the plaintiffs one-fourth of the proceeds of the sale less taxes, court costs and attorney fees.

It is further alleged that before said order was made by the court, to-wit: on May 8, 1950, the defendant, Oil City Refiners, Inc., filed an action in the Court of Common Pleas of Cuyahoga County, wherein these plaintiffs, this defendant and others were made defendants and in which action the refining company claimed an interest in the funds then held by this defendant as sheriff because of a certain loan made by it on December 15, 1943 in the sum of $3,340.74 at six per cent interest, to plaintiffs’ predecessors in title (plaintiffs’ father and mother and the father’s partner, John Roski) to prevent a foreclosure of a mortgage against said property by a mortgagee bank; that the petition of the refining company alleged that unless restrained, this defendant would distribute the funds in his hands to the plaintiffs and others and ask the court to enjoin this defendant from making such payments until the rights of the refining company in said fund were determined.

The defendant alleges that he filed an answer in said action admitting that he held the funds and that he would abide the order of the court as to the distribution thereof. It is further alleged that on the trial of the issues in the case in which the refining company was plaintiff, seeking to establish its interest in the funds réceived from the sale of the property in the partition action, the Court of Common Pleas, by its decision, held the refining company was entitled to approximately $5,000 out of said money, the decision being made on September 4, 1951. It is alleged that an appeal was taken to the Court of Appeals from that decision and by the judgment of the Court of Appeals on April 8, 1953, the decision of the Court of Common Pleas was reversed, the Court of Appeals holding that the refining company had “no right to be subrogated to any funds in the hands of the defendant sheriff.” The refining company then abandoned any further prosecution of its claim and this defendant promptly (to-wit: on April 9, 1953) paid these plaintiffs $5,318.21 which was due them under the decree of the court in the partition action.

This defendant further says that he was willing at all times to pay over to the plaintiffs the money claimed to be theirs in the partition action but that he was unable “and in peril or jeopardy” to do so until the determination by the court of the refining company’s action as to the rights of the several parties to the funds in his hands as sheriff.

On the face of the record, no cause of action is stated against the Oil City Refiners, Inc. They were completely within their rights to litigate their claim against the fund. There is no claim or allegation that its action was a sham or capricious. At no time did this defendant seek an order of the court for a temporary restraining order as provided by §2727.07 R. C., so that so far as it was concerned, the only restraint on the sheriff was the fact that as a defendant in the Oil Company’s lawsuit, he was put upon notice that there was a claim being made in a judicial proceeding in which he was a party to the fund in his hands which had not been litigated in the partition case, the claimant not having been a party to that action. Certainly there can be no such hazard in seeking to have an adjudication of one’s legal rights by bringing an action as provided by law unless the action is, in fact, a sham, vexatious and wholly without legal foundation. No such allegations are found in the pleadings.

The action against the sheriff is likewise without merit. The petition does not siate a cause of action against him for two reasons. First, because there is no allegation or claim of damage and second, there is no allegation of a breach of duty in the refusal of the sheriff to pay over the funds in his possession to the plaintiff as directed by the journal entry of distribution when, upon the admitted facts, there was brought to his attention by an action or judicial proceeding in which he was made a party defendant before the order of distribution was entered, that plaintiffs’ right to the funds was legally disputed, that is, that another claimed to have a paramount right to some part or all of the funds, the claim being made by one who was not a party to the action in partition so that the judgment in that case could in no sense be a bar to such claimants’ right. A sheriff in possession of money is not required, at his own hazard, to determine to whom, in fact, the paramount right to such money belongs when conflicting claims are judicially asserted. In 80 C. J. S. para 96-c, at page 310, it is said:

“A sheriff or constable is not liable for failing' or refusing to pay over money claimed by a third person where the claim is supported by litigation or other legal procedure, but a mere notice of a claim to the money by a third person will not justify a sheriff or constable in withholding it from the plaintiff under whose process it was received.”

It, must also be observed that money in the hands of a sheriff as a result of the sale of property in a partition proceeding does not make the sheriff a debtor of the parties who by the decree are to receive such money on distribution. Sec. 1309.03 R. C., has no application here. These plaintiffs are not creditors of the sheriff. The sheriff is a trustee of the money in his possession. Should he breach his duty as custodian of such money as a public officer, one injured by his misconduct would have an action for damages and not for interest. The value of the use of such money would then be the measure of damages. We hold, therefore, that the allegations of the petition, failing entirely to claim damages, are insufficient to state a cause of action.

For the foregoing reasons, the judgment is affirmed.

Exceptions noted. Order see journal.

HURD and KOVACHY, JJ, concur.


text:
    OHIO STEAK & BARBECUE COMPANY, COLUMBUS, OHIO, Appellant, v. BOWERS, Tax Commissioner, Appellee.
    The Board of Tax Appeals, Department of Taxation, State of Ohio.
    No. 33874.
    Decided August 21, 1957.
    Porter, Stanley, Treffinger & Platt, by J. Ralston Werum and William E. Arthur, for appellant.
    William Saxbe, Atty. Geni., By John M. Tobin, Asst. Atty. Geni., for appellee.
   OPINION

. This appeal presents the single question as to the life expectancy and annual depreciation rate allowable on appellant’s tangible personal property used in its business as returned for taxation.

The taxpayer, in making its returns for the years 1953 and 1954, returned such property as manufacturing equipment with a life expectancy of 10 years and entitled to an annual depreciation rate of 10%. The Commissioner, in his order of February 5, 1957, upon the taxpayer’s application for review and redetermination, held that this property had a life expectancy of 20 years and entitled to an annual depreciation rate of 5%. Appellant complains of the increased assessment resulting therefrom as being illegal and unreasonable.

The cause now comes on for further and final consideration upon the taxpayer’s notice of appeal, the Commissioner’s order and transcript, the record of hearing had before the Board under date of May 22, 1957, and briefs of counsel.

The law of the present case is well established by Wheeling Steel Corp. v. Evatt, 143 Oh St 71, 28 O. O. 21, and Harper Co. v. Peck, 161 Oh St, 300, 53 O. O. 178. It only remains for this Board to apply that law to the facts as herein found. The Tax Commissioner’s directive of May 1, 1952, of which the Supreme Court has approved, which establishes Composite Prima Facie Depreciation Rates for valuing certain personal property used in business, provides that “Meat Packing” (slaughter and packing house), shall have an annual depreciation rate of 5%; “Abattoirs,” 5%; “Packing” (meat), 5%, and “Slaughter House,” 5%; “Restaurants, Cafes and Bars,” 10%. These are the categories which are nearest related to appellant’s business.

The taxpayer is engaged primarily in the processing of frozen meats. We are told that up to 2 or 3 years ago only two parties were engaged in this kind of business. There are now about fifty so engaged. Appellant buys hind quarters of beef, pork, turkeys and chickens from packing houses. It trims, slices, processes, seasons and packages these products and sells them to vendors of food. It grinds some meats and prepares it for hamburgers. It also makes soups and broths. When its products are delivered to restaurants and the like they are ready for instant use. When this business was developed there was no adequate machinery built to fit appellant’s needs. It built some machines and used others, such as slicers and grinders found in groceries and meat markets. These machines were not designed for operation on frozen meats; and as a result of such use and continuous operation, they required frequent repair and diminished life use. The evidence is that the taxpayer’s equipment, power units and compressors, receive hard usage, some machines as much as 24 hours a day. Some implements will process as much as 1,000 pounds a day, which is more than their total use in a week in a retail store. Water and acids are shown to be hard on appellant’s equipment; and compressors designed for two-thirds time operation aré operated at 100%. Salesmen of meat processing machinery corroborate this evidence, that their products are designed for ordinary 10-year life, but that appellant’s use of these tools on frozen meats markedly shortens their life span.

We are also advised that competition in this business is now keen and that quantity production is very important; that tools usable by this industry are now being produced; in fact, one cannot predict what improved machines may be produced from day to day. By reason of this rapid rate of tool production, existing machines soon become obsolete and economically unusable and must be scrapped.

Appellant’s president, one who helped initiate this business, says that 33% of the taxpayer’s appliances have a life span of less than 5 years, 15% probably 10 years, 2% from 20 to 30 years, and that the remaining 50% of equipment has a life use of 8 to 10 years. None of this evidence has been controverted in any way by appellee.

Appellee strenuously complains in his brief that the taxpayer’s evidence lacks positiveness, is speculative and indefinite; and that its evidence does not cover all of its property used in business. Appellee offered no evidence. He was satisfied with a cursory cross-examination. No other property was pointed out which was not covered by the evidence. Although appellant’s evidence is not all that could be desired, it is sufficient for the purpose for which it was introduced. Appellee appears to be unmindful of the fact that his directive recites: “Such rates are prima facie only and are subject to adjustment in all cases where special or unusual circumstances or conditions of use are shown to exist.”

From this evidence.it is apparent that no particular item contained in the directive fully meets appellants’ business; that is, the processing of frozen meats for instant table use. In fact, five years ago, this industry was in its infancy, and could hardly have been within the contemplation of the compilers of the directive. From the evidence before us this Board must and does conclude that appellant’s returned equipment, until such time as a study be made thereof, is entitled to a 10-year life span and a 10% annual depreciation rate as claimed by it. The increased assessment order complained of by the taxpayer must be and is hereby reversed.


text:
    PATON, Plaintiff-Appellant, v. CORRIGAN et, Defendants-Appellees.
    Ohio Appeals, Cuyahoga County. Eighth District.
    No. 24237.
    Decided November 21, 1957.
    Davies, Eshner, Johnson & Miller, for plaintiff-appellant.
    John T. Corrigan, County Prosecutor, for defendants-appellees.
   OPINION

Per CURIAM:

Since the judgment in the trial court was rendered for the defendant pursuant to written motions for judgment on the pleadings filed by both plaintiff and defendant, John T. Corrigan, no bill of exceptions could be filed. Notwithstanding the nature of the motions, the plaintiff attached an affidavit to his brief filed with the trial court which this court cannot consider. The well pleaded facts in the pleadings themselves, therefore, are only before us, and since the answer of the defendant prosecutor sets forth the fact that the money involved in this case was given by the plaintiff-appellant as a bribe to a public officer with intent and purpose to influence his official conduct, a court of law is not in error in refusing to grant relief to a person seeking the return of money given under such circumstances.

See Bank v. Klein. 92 Oh Ap 309; 77 C. J. S. 48; Clark v. U. S., 102 U. S. 322; Commonwealth v. Brown, 16 Pa. District Rep. 537; Commonwealth v. Waxman, 5 Pa. D. & C. Rep. 157; U. S. v. Galbreath, 2 F. (2d) 360.

Judgment affirmed. Exceptions noted.

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


author: By BACON, J.

text:
    HARRAH, Extrx., Plaintiff-Appellee, v. MEIGS COUNTY MEMORIAL HOSPITAL OF POMERY, OHIO, Defendant-Appellant, CAMDEN-CLARK HOSPITAL OF PARKERSBURG, WEST VIRGINIA et, Defendant-Appellees.
    Common Pleas Court, Meigs County.
    No. 12020.
   OPINION

By BACON, J.

Appeal from the probate court awarding decedent’s residuary estate to Camden-Clark Hospital, Parkersburg, West Virginia.

Testatrix, Susie Foster, died July 7, 1951, her last will and testament executed July 21, 1948, was admitted to probate October 15, 1951, and action commenced by Roma Harrah, Executrix of the estate of Susie Foster, deceased, as plaintiff May 21, 1952, that the probate court construe it. The Court below journalized its order August 29, 1953, deciding that the residuary bequest to the Meigs County Memorial Hospital of Pomeroy, Ohio, failed to vest and that it passed to and vested in said Camden-Clark Hospital.

In determining whether the probate court was correct in its construction it is recognized as a paramount rule that the intention of Testatrix, as gathered from the whole will, must control. Suffice to say, however, that the construction of the residuary clause is not aided by any other part. The first six clauses provided for the payment of debts, a monument, disposition of heirlooms, a trust for the care of Ridenour Cemetery, and the eighth clause named plaintiff as Executrix. The residuary clause, the seventh, is as follows:

“SEVENTH: The rest and residue of my property remaining after the above bequests and directions as above made have been cared for, I Give, Devise and Bequeath the same to The Meigs County Memorial Hospital of Pomeroy, Ohio, should the same be erected and maintained. But if there be no Meigs County Memorial Hospital erected or maintained it is my wish that said money remaining go The Camden-Clark Hospital of Parkersburg, W. Va.”

The plaintiff-appellee in her petition for construction named among others as parties defendant, The Meigs County Memorial Hospital of Pomeroy, Ohio, and The Camden-Clark Hospital of Parkersburg, West Virginia. Defendant-appellant, the Board of Trustees of the Meigs County Veterans Memorial, claim as the beneficiary designated in the will as “The Meigs County Memorial Hospital of Pomeroy, Ohio.”

Pertinent extrinsic facts are: (1) There was no Meigs County Memorial Hospital erected or maintained at the time Testatrix executed her will, and none erected or maintained nor under construction at the time of her death. (2) At the November Election in 1946 a maximum tax levy as authorized under §3059 GC, was passed by the electors of Meigs County, which has accumulated a fund in the Meigs County Treasury known as “The Memorial Fund.” (3) In November, 1947, the county commissioners acting under §3061 GC, appointed a board of trustees, its powers defined by §3061-2 GC, to “provide for the establishment, arrangement, plans and design of the memorial.” (4) This board, however, by decree of the common pleas court of Meigs County February 5, 1949, “does not have the powers, rights and duties given by law to trustees of a county hospital . . . and . . . has no right, power or authority to equip, maintain or operate a hospital . . .” (5) The Camden-Clark Memorial Hospital of Parkersburg, West Virginia, was in operation and functioning as a hospital at the time plaintiff’s decedent made her will, also so functioning at the time of Testatrix’ decease, and is now so functioning. (6) Although apparently denied by prior decree of this court of the right, power or authority to equip, maintain or operate a hospital, the defendant-appellant Board of Trustees of the Meigs County Veterans Memorial contemplate erection of a building suitable for use as a hospital, and at the time Testatrix made her will, as well as at the time of her decease and the present time, bear the nearest affinity to the designation in the will “The Meigs County Memorial Hospital of Pomeroy, Ohio.”

General principles for construction of wills were early established in Ohio. Perhaps the case most cited is that of Townsend’s Executors v. Townsend, 25 Oh St 477, pertinent syllabi being:

1. In the construction of a will, the sole purpose of the court should be to ascertain and carry out the intention of the testator.

2. Such intention must be ascertained from the words contained in the will.

3. * * *

4. All the parts of the will must be construed together, and effect, if possible, given to every word contained in it.

5. If a dispute arises as to the identity of any person or thing named in the will, extrinsic facts may be resorted to, insofar as they can be made ancillary to the right interpretation of the testator’s words, but for no other purpose.

Although “The Meigs County Memorial Hospital” appears the first object of Testatrix’ bounty, it is clear she was aware such hospital was not in existence. Its nonexistence prompted Testatrix to attach the condition “should the same be erected and maintained,” and to provide for another beneficiary “if there be no Meigs County Memorial Hospital.” This use of the word “if” falls within the principle as stated in American Jurisprudence, Vol. 57, Wills, Section 1333, p. 884, that the word “if” when used in a will is usually construed as importing a condition or contingency. Prima facie contingent, according to Corpus Juris Secundum, Vol. 96, Wills, Section 933, p. 395.

Defendant-appellant, Board of -Trustees of the Meigs County Veterans Memorial, can succeed as residuary beneficiary only if the condition be deemed a condition subsequent, and further that the time for performance be some time after the death of the Testatrix. From Testatrix’ language in her will and the rules of construction, as settled by Townsend’s Executors v. Townsend, supra, and other authorities hereinafter cited, must be determined whether Camden-Clark Memorial Hospital stands as the substituted residuary legatee, or whether the erection and maintenance of a Meigs County Memorial Hospital at some uncertain time in the future will qualify defendant-appellant board of trustees as such residuary legatee.

Words & Phrases, Vol. 40, p. 529, states the principle of substitution about as well as it can be put, even though authority of a civil law jurisdiction is cited, where ordinarily substitution is prohibited. Common law states, including Ohio, allow substitution. From Words & Phrases:

“Substitution,” with respect to wills, ... is the putting of one person in the place of another so that he may, in default of ability in the former, or after him, have the benefit of the devise or legacy, particularly the act of testator in naming a second devisee or legatee who is to take the bequest on failure of the original devisee or legatee, or after him. In re Courtin, 81 So. 457, 144 La. 971.

To the same effect Words & Phrases in its supplement cites the case of In re Todd’s Estate, Cal. App. , 99 F. 2d. 690, 691.

Testatrix was quite explicit in providing for substitution of one beneficiary for the other in her residuary clause, save that there is not therein stated, nor elsewhere in the will, any time for the operation of the contingency “But if there be no Meigs County Memorial Hospital.” From the language Testatrix did use, construed in accordance with established legal principles, such time must be ascertained.

Ordinarily, a will speaks as of the death of the testator. And the law favors the vesting of estates at the earliest possible moment, in the absence of a clearly expressed intent to postpone the vesting to some future time. Ohio National Bank, Trustee, v. Boone et al, 139 Oh St 361, 22 O. O. 414, 40 N. E. 2d 149; Spang v. Cleveland Trust Company, 73 Abs 164, 134 N. E. 2d 586. See also the case of In re Estate of Evans: Balduf, Executor, v. Evans, 165 Oh St 27, 59 O. O. 43, 133 N. E. 2d 128. Wills should be so construed as to vest the interests therein conveyed at the earliest possible date. Smith v. Rees, 52 Abs 417, 81 N. E. 2d 537; Bauman v. Bauman, 55 Abs 398, 41 O. O. 139, 88 N. E. 2d 196; Schlaeffel v. Kietzman, 56 Abs 51, 89 N. E. 2d 477.

Authorities of sister states appear in accord with the above rules without exception. Confining our citations to two, both from Illinois, Havill v. Havill, 332 Ill. 11, 163 N. E. 428, a will speaks from the death of the testator. At the moment of his death the rights of his heirs and devisees to succeed to his estate are fixed and vested . . .” In Hoblit v. Howser, 338 Ill. 328, 170 N. E. 257, the rule is stated that the law favors vesting of estates and an estate will vest at the death of testator, unless a later time for vesting is clearly expressed by words of the will, or by necessary implication therefrom. The court propounded at length upon contingent remainders.

“A contingent remainder is one limited to take effect either to a dubious and uncertain person or upon a dubious and uncertain event. Smith v. Chester, 272 Ill, 428, 112 N. E. 325, Ann. Cas. 1917A, 925; 2 Blackstone, 168, 169. It is an estate which is not ready to come into possession at any moment when the present estate may end. If the time of enjoyment, merely, is postponed, and it appears to be the intention of the testator that his bounty shall immediately attach, the devise is vested, but, if the time be annexed to the substance of the gift as a condition precedent, it is contingent and not transmissible. The uncertainty which distinguishes a contingent from a vested remainder is not the uncertainty whether the remainderman will live to enjoy the estate, but whether he will ever have the right to such enjoyment. Carter v. Carter, supra; Harvard College v. Blach, 171 Ill. 275, 49 N. E. 543. Whether the condition is precedent or subsequent depends upon whether it is incorporated into the gift to or is descriptive of the remainderman or is added as a separate clause after words which have already given a vested interest. ...”

In the instant case it will be noted that “The Meigs County Memorial Hospital” is not only dubious and uncertain but is not in existence at all. Testatrix attached the condition not to the Camden-Clark Hospital, but to the gift to the Meigs County Memorial Hospital. Unquestionably, the contingency here involved is a condition precedent. Testatrix in her own words intended Camden-Clark Hospital to be her residuary legatee “if there be no Meigs County Memorial Hospital erected or maintained.” When? Testatrix could have fixed the time but she failed to do so. The law must do it for her. Since a will speaks at the death of the testator, the court below was correct and its judgment must be affirmed.

An entry may be prepared so providing.


author: Per CURIAM: By HURD, J.:

text:
    CURTISS, Plaintiff-Appellee, v. CLEVELAND (City) et al, Defendants-Appellants.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23398.
    Decided December 11, 1957.

      McCreary, Hinslea & Ray, for plaintiff-appellee.
    Ralph S. Locher, Director of Law, for defendants-appellants.
    James Metzenbaum, Abraham Kollin, Walter & Haverfleld, Robert Merkle, for defendants-appellees.
   OPINION

Per CURIAM:

This appeal comes to this court for rehearing as directed by the mandate of the Supreme Court of Ohio where the judgment of this court, previously entered, was affirmed in part and set aside in part and the cause remanded for further consideration to the extent necessary to conform to the Supreme Court’s directions. (See 166 Oh St 509, 144 N. E. 2d 177.)

As indicated by our opinion (74 Abs 499, 130 N. E. 2d 342,) and by the findings of fact and conclusions of law which this court returned upon request and filed with the papers in the case, with particular reference to the description of the physical surroundings (paragraphs 10, 25, 26 and 27 of the findings of fact which are here re-adopted), the value of the business property affected by the ordinances here being considered was clearly shown by the record to have been greatly depreciated. The property, zoned for residence purposes, to the north and south of Lake Shore Boulevard, had been completely improved prior to the adoption of the ordinances here involved except for a very few remaining vacant lots, and eighty per cent or more of the frontage on Lake Shore Boulevard (the Lake Shore Boulevard frontage being the only property affected by these ordinances) had been improved for retail business (see findings of fact paragraphs 25 and 26). The effect of the amended zoning ordinances was to make all such business property, as improved by the individual owners, nonconforming uses without right of substitution or change except by permission and at the discretion of the zoning board of appeals.

As shown by the findings of fact, a substantial part of the value of the improved business properties on the Boulevard would be destroyed by the amendatory ordinances in making such property subject to the limitations of a nonconforming use, and that such change was not, in fact, based on or in the interest of the public health, safety, morals or general welfare. Matters of traffic and sanitation claimed by the City as some of the considerations for the change in zoning, did not, in fact, beneficially affect such matters, which are otherwise subject to the control of the City in the exercise of its police power.

Because this territory, including that zoned for residence purposes, was almost completely developed, the zoning change being limited to just the property fronting on Lake Shore Boulevard, which includes only a few vacant lots comprising less than twenty per cent of the Boulevard frontage west of Neff Road, the part affected by this decree, the change bore no relationship to the public health, morals, safety or the general welfare of the people in and about such territory. The provisions of the amendatory ordinances, reclassifying the vacant land, are here sustained.

This court, in its first decree, did not intend to found its judgment on a supposed “contract” theory or right to continue a use once lawfully permitted where substantial sums had been expended upon the improvements within the then zoning limitations. It was the purpose of this court’s decree to protect each established retail business property here affected from loss in value almost to the extent of confiscation because of its reclassification by these zoning ordinances into the category of a nonconforming use, the amendatory ordinances bearing no relation to the public health, morals, safety or the general welfare, particularly where all the property affected comprised an almost completely developed retail business territory surrounded by a completely built residential area. This court, in its judgment, intended to afford the same protection to properties, here becoming nonconforming uses, against destruction in value by reason of these zoning amendments as is now provided for as to properties coming into a like situation by the provisions of §713.15 R. C., effective 8/27/57, which reads as follows:

“The lawful use of any dwelling, building, or structure and of any land or premises, as existing and lawful at the time of enacting a zoning ordinance or amendment thereto, may be continued, although such use does not conform with the provisions of such ordinance or amendment, but if any such nonconforming use is voluntarily discontinued for two years or more, any future use of such land shall be in conformity with §713.01 to §713.15, inclusive, R. C. The legislative authority of a municipal corporation shall provide in any zoning ordinance for the completion, restoration, reconstruction, extension, or substitution of nonconforming uses upon such reasonable terms as are set forth in the zoning ordinance.” (Emphasis added.)

It is further considered that the ordinances which are the subject of this action, with regard to the provisions for nonconforming uses of the properties here affected, are now in direct conflict with the general law as enacted by the legislature in the foregoing section and are, therefore, now inoperative as to these properties. This action being in equity, the authority of this section, enacted by the legislature before entering .this judgment, may here be considered and is controlling.

. We, therefore, now hold that as to the properties specifically designated in our first decree (set forth in finding of fact No. 27), the prayer of the plaintiff and cross-petitioning defendants for injunctive relief is granted. This court holds that as to such properties, the rezoning thereof is confiscatory and, therefore, unconstitutional for the reason that the record shows that such ordinances bear no substantial relation by reason of the state of the improvement of the property involved and the surrounding territory and circumstances as shown by the record at the time the amendatory ordinances were passed to the public health, safety, morals or general welfare of the people.

SKEEL, FJ, KOVACHY, J, concur.

HURD, J, dissents.

DISSENTING OPINION

By HURD, J.:

I respectfully dissent from the judgment of the majority of this court, primarily because I consider it irreconcilable with the opinion and judgment of the Supreme Court rendered in this case July 10, 1957. (See Curtiss v. City of Cleveland, 166 Oh St 509.)

Under date of November 23, 1955, this court held that certain amendatory zoning ordinances of the City of Cleveland as applied to plaintiff-appellee’s land and the lands of certain cross-petitioning defendants-appellees, located on Lake Shore Boulevard in the City, improved for retail business, constituted an unconstitutional taking of property without due process of law. (See Katherine K. Curtiss, Plaintiff-Appellee v. City of Cleveland, et al., Defendants-Appellants-Appellees, 130 N. E. [2d] 342.) The decision of the Supreme Court affirmed in part and reversed in part the judgment of this court. The judgment of this court, holding the amendatory ordinance constitutional and valid as to all vacant land on Lake Shore Boulevard in the territory involved, was affirmed, but the judgment of this court was reversed as it applied to properties improved with retail business and the cause remanded to this court for further proceedings, the last paragraph of the opinion of the Supreme Court reading as follows:

“Since, however, the Court of Appeals as shown herein found as a matter of law that those, who had expended capital in acquiring and substantially improving lands for ‘retail business’ in reliance upon and in conformity with the zoning ordinance in effect prior to these amendatory ordinances, were, because of the circumstances and conditions created at the affected locations by reason of such improvements, entitled to rely upon the continuance of such prior ordinance without amendments materially increasing restrictions upon the use of their property, and entered its judgment accordingly, the judgment is reversed and the cause remanded for further proceedings in accordance with this opinion.” (See page 529.)

It is important to note that upon rehearing no new or additional evidence has been offered in this case for the further consideration of this court in respect to all or any one of the properties of the plaintiff and cross-petitioning defendants which are improved for retail business in the pertinent area on Lake Shore Boulevard here under consideration. Upon rehearing, the plaintiff and cross-petitioning defendants have argued in favor of an order set forth in a proposed journal entry, reading as follows:

“This Court, upon reconsideration of all of the evidence in the case finds that within the law as stated in the Supreme Court opinion, the amendatory ordinances which are the subject of the litigation in this case, when applied to the properties hereinbefore listed, are unreasonable and discriminatory and without relation to the public health, safety, morals or general welfare.

“WHEREFORE, THIS COURT DOES NOW ADJUDGE AND DECREE that said amendatory ordinances specified in its former decree herein, were and are invalid and unconstitutional to the extent that they affect the specific properties hereinbefore listed and said City of Cleveland, and all its servants, agents, officers and employees are hereby permanently enjoined from any action or conduct tending to interfere with the use and enjoyment of said premises in the same manner and to the same extent as they were, or could have been used and enjoyed prior to the adoption of said amendatory ordinances.”

The defendant, the City of Cleveland, opposes such an order and finding of fact by this court and argues in effect that the properties improved with retail business are nonconforming uses which have suffered no actual or potential loss but that regardless of this, the Supreme Court has decided that actual or potential loss of value resulting from the rezoning of substantially improved lands does not, of itself, render an amendatory zoning ordinance invalid.

The question thus presented for our determination upon this rehearing is whether, in the light of the decision of the Supreme Court, by which we are bound, we can now declare that the amendatory zoning ordinance, when applied to the properties improved with retail business in the affected area, is unreasonable and discriminatory and without relation to the public health, safety, morals and general welfare as a matter of fact.

A consideration of this question requires an examination and analysis of the decision of the Supreme Court which approved and followed State, ex rel. The City Ice & Fuel Co. v. Stegner, Dir., 120 Oh St 418.

In the first place, it should be emphasized that the Supreme Court sustained the validity of the amendatory ordinances in toto, both as to vacant land and improved lands. In respect to vacant land, the Supreme Court, through Judge Herbert speaking for a unanimous court, after citing and quoting from numerous authorities in Ohio and other jurisdictions, declared, at page 528:

“In accord with this court’s decision in the Davis case, supra, and the prevailing view in other jurisdictions, as indicated in the above-cited authorities, we conclude that, upon the record before us, the appellees’ contentions as to vacant land and the land upon which only temporary commercial buildings have been erected in the territory involved are not well taken, and we sustain the Court of Appeals in its finding with respect to those properties.” (Emphasis added.)

This narrows the issue to improved properties, commonly known as nonconforming uses. As to these properties, can we now declare, without new or additional evidence, that the amendatory ordinances are invalid? I think not. Considering this proposition, Judge Herbert said, at page 519:

“The Court of Appeals in its journal entry incorporated by reference its separate findings of fact so that such findings must be considered as if fully restated in the judgment entry. It may, therefore, be fairly summarized that the Court of Appeals found that the amendatory ordinances have materially impaired and are substantially destructive of the values of the specified properties on the pertinent portion of Lake Shore Boulevard that have been substantially improved for use for retail business purposes and as to such properties are unreasonable, arbitrary, capricious and confiscatory and without substantial relation to the public health, safety, morals, and general welfare; and that those who had expended capital in acquiring and substantially improving such lands for retail business purposes in reliance upon and in conformity with the provisions of the zoning ordinance as in effect prior to April 15, 1945, were because of the circumstances and conditions created and existing by reason of such improvements entitled to rely on the continuance of such ordinance without amendments materially increasing restrictions upon the use of their property.

“We find no Ohio authority for this view and consider it to be contrary to the prevailing rule. * * *” and at page 525, we find the following significant statement:

“Appellees’ reliance on the original comprehensive zoning ordinance is not sufficient to prevent a rezoning. Neither is the power of a municipality to enact amendatory zoning ordinances limited by the value or the extent of the improvements affected, particularly when nonconforming uses are protected. Certainly no property owner has a vested right to have the zoning classification which is in effect when he acquires or improves real estate to remain unchanged. Where, as in this case, the rights of the property owners to continue their present use indefinitely are preserved and where provision is made for administrative appeal for relief in individual cases, the ordinance cannot readily be considered arbitrary or confiscatory.” (Emphasis added.)

It is assumed that the majority of this court seeks to base the latest judgment upon the second sentence of syllabus 2 of the Supreme Court in the instant case, which reads as follows, the pertinent part being emphasized:

“2. Actual or potential loss in value resulting from the rezoning of substantially improved lands does not of itself render an amendatory zoning ordinance invalid; and the owners of such lands have no constitutional right to rely upon the provisions of an original comprehensive municipal zoning ordinance so as to permanently impair or prevent the adoption of a subsequent amendatory ordinance. However, if when applied to the owners of such lands such ordinance is found to be unreasonable and discriminatory and without relation to the public health, safety, morals or general welfare, injunctive relief will lie.” (Emphasis added.) .

As I interpret the meaning of paragraph 2, it is in accordance with the holding of the United States Supreme Court in Euclid v. Ambler Realty Co., 272 U. S. 365, as shown by paragraph 9 of the syllabus of that case, which reads as follows:

“Where an injunction is sought against such an ordinance, upon the broad ground that its mere existence and threatened enforcement, by materially and adversely affecting values and curtailing the opportunities of the market, constitute a present and irreparable injury, the court, finding the ordinance in its general scope and dominant features valid, will not scrutinize its provisions, sentence by sentence, to ascertain by a process of piece-meal dissection whether there may be, here and there, provisions of a minor character, or relating to matters of administration, or not shown to contribute to the injury complained of, which, if attacked separately, might not withstand the test of constitutionally.” (Emphasis added.)

It seems reasonable to assume from this that until new or additional evidence is presented to show that the amendatory ordinance when applied to the owners of particular lands improved with nonconforming uses is unreasonable and discriminatory and without relation to public health, safety, morals or general welfare, injunctive relief will not lie, and therefore a mere re-evaluation of the existing evidence is not sufficient to warrant a finding to set the entire ordinance aside as to these particular properties, particularly in view of the fact that the ordinance in its entirety has been upheld by the Supreme Court.

It is my view further that insofar as actual or potential loss is concerned in respect to nonconforming uses, the plaintiff and cross-petitioning appellees have no ground for complaint at this time, as loss of actual or potential value is not an exclusive criterion. The thrust of the amendatory ordinances, if they have any appreciable effect, is rather to enhance the value of these particular properties because it grants to those now established in business as nonconforming uses an exclusive monopoly in a multi-family residential zone so far as their particular type and kind of business is concerned. The only loss which could occur is what might be termed a highly speculative potential— that is, damage or destruction by fire or some other casualty, in which event the properties could not be rebuilt or repaired without application to the municipality for relief. Likewise, if extensions or variances were desired, it would be similarly necessary to make application for such extensions or variances of existing nonconforming uses.

So long as the complaining parties are enjoying the full benefit of the nonconforming uses, they have no present cause or ground for complaint. Consequently, as to their properties, the amendatory ordinances are not confiscatory, unreasonable or discriminatory in the absence of new or additional evidence to that effect. If and when an occasion should arise requiring restoration or repair of property destroyed by fire or other casualty, the ordinance makes full provision for application to the city to vary or modify the application of the ordinance in harmony with the general purpose and intent of the 1949 ordinance as amended. Thereby, the general welfare of the interested parties and the community may be safeguarded and substantial justice done. However, the ordinance in question makes specific provision for an application for an extension of a nonconforming use or for a variance. As Judge Herbert states at page 528:

“This rule as to the general applicability of the amendatory ordinances is entirely reasonable when it is taken into consideration that section 981-63 of the 1949 ordinance (codified as section 5.1166) reads in part as follows:

“ ‘Paragraph (c) 1. Where there is practical difficulty or unnecessary hardship in the way of carrying out the strict letter of the provisions of this chapter, the Board of Zoning Appeals shall have the power, in a specific case, to vary or modify the application of any such provisions in harmony with the general purpose and intent of this chapter so that public health, safety, morals and general welfare may be safeguarded and substantial justice done.

“ ‘2. Limitation of Variance Powers. Such variance shall be limited to specific cases where:

“ ‘2b. Refusal of the variance appealed for will deprive the owner of substantial property rights * * *.’ ”

So far as the record in this case is concerned, there is no application on the part of the complaining parties for a variance and consequently no refusal of a variance. Nor does the record show any application for an extension of a nonconforming use on the ground that there is practical difficulty or unnecessary hardship in the way of carrying out the strict letter of the provisions of section 981-63 of the 1949 ordinance (codified as section 5.1166) such as to invoke the power of the Board of Zoning Appeals in a specific case to modify the application of any provisions of the chapter in harmony with the general intent and purpose of the ordinance.

It is entirely conceivable that in a specific case where unnecessary hardship is shown that the Zoning Board of Appeals, upon application made, would grant such an application for an extension of a nonconforming use or for a variance, in which event the interested parties, enjoying nonconforming uses, would have no cause for complaint. If, on the other hand, such an application should be refused, appeal could then be made to the courts. However, until such a contingency occurs, the plaintiff and cross-petitioning appellees have no grievance for which a remedy must be afforded by judicial decree.

The value of the land is in its use and unless and until the complaining parties are aggrieved by some deprivation of use, no action will lie. Furthermore, this court, in the absence of new or additional evidence, should not issue an order, general in its terms, affecting all of the nonconforming uses alike.

In 8 McQuillin on Municipal Corporations, 82, Section 25.44, it is said:

“The general rule is that hardship, limitation of use or diminution or increase of value of private property does not in itself render a zoning measure unconstitutional or invalid. Indeed, a zoning ordinance is not necessarily invalid although it is harsh and seriously depreciates the value of property involved. Nor is the test of the validity of a zoning measure its financial advantage or disadvantage to the owner arising from the measure or its enforcement.

i& $

“Mere diminution of market value or interference with the property owner’s personal plans and desires relative to his property in insufficient to invalidate a zoning ordinance or to entitle him to a variance. Similarly, the fact that property is more valuable for an excluded use does not in itself void a zoning restriction. Consistently with these principles, a zoning ordinance may classify property for residential purposes although it can more profitably or beneficially be used for commercial purposes, * * * or for industrial purposes. * * *” (Citing many authoritative federal and state cases.)

Furthermore, it is well-settled that if the validity of the legislative classification for zoning purposes presents a fairly debatable question, the legislative judgment must be allowed to control. It was so held in Euclid v. Ambler Realty Co., supra, see syllabus 4.

In the case of In re Application of Fox Meadow Estates, Inc., for an order of Mandamus, 233 App. Div. 250, 252 N. Y. S. 178, affirmed 261 N. Y. 506, 185 N. E. 714, the court, in holding that a zoning ordinance which restricted to single family dwellings the remainder of a village outside the territory adjacent to then existing business and apartment house districts was not unreasonable and discriminatory, 233 App. Div. at page 251, 252 N. Y. S. at page 179, said:

“* * * The respondent claimed and sought to establish on the trial that the ordinance was arbitrary, unreasonable, discriminatory, and confiscatory, because this particular property was included in the residence district. At most it made a debatable question, and barely that, as to the acts of the village authorities in enacting the zoning plan. It is evident that its sole object was profit, and no one joins in its complaint.

“The law is too well settled to make necessary any discussion. The power of a municipality to determine for itself what plans are necessary to promote the public health, morals, safety, and the welfare, convenience, and general prosperity of its people is a legislative question, which may not be interfered with by the courts, except in rare instances. Wulfsohn v. Burden. 241 N. Y. 288, 150 N. E. 120, 43 A. L. R. 651: Village of Euclid v. Ambler Realty Co., 272 U. S. 365; Zahn v. Board of Public Works, 274 U. S. 325, 47 S. Ct., 594, 71 L. Ed. 1074.”

See also, Cleveland Trust Co. v. Village of Brooklyn, 92 Oh Ap 351, 110 N. E. (2d) 440, 49 O. O. 422. Appeal dismissed by the Supreme Court, 158 Oh St 258, 108 N. E. (2d) 679, 49 O. O. 90.

In the light of the decision of the Supreme Court heretofore rendered in this case and under all the facts considered in connection with the circumstances and the locality, can this court now determine, without the introduction of new or additional evidence on this rehearing, that the classification of the pertinent Lake Shore Boulevard area for multi-family purposes is an arbitrary use of the police power, unrelated to the public health, welfare, morals and safety of the community? I think not. To so decide now on precisely the same record upon which the case was originally heard is in effect merely a. re-evaluation of the evidence, which results in a nullification of the decision of the Supreme Court rendered herein. Furthermore, to do so now would be to substitute our judgment for that of the legislative body.

Aside from the considerations heretofore set forth, there is another reason why such a judicial order should not be issued. Since the rendition of the decision of the Supreme Court in this case on July 10, 1957, the legislature has enacted into law §713.15 R. C., entitled “Retroactive Zoning Ordinances Prohibited.” This section, which became effective August 27, 1957, provides, in part, as follows:

“The legislative authority of a municipal corporation shall provide in any zoning ordinance for the completion, restoration, extension or substitution of nonconforming uses upon such reasonable terms as are set forth in the zoning ordinance.” (Emphasis added.)

Since the present ordinance provides a method of procedure to obtain relief in individual cases and since the Revised Code, by its terms, protects those enjoying nonconforming uses from loss due to destruction by fire or otherwise, and also provides for an extension of nonconforming uses on reasonable terms, and since there is no new or additional evidence upon which to predicate the majority opinion, it must be concluded, in the light of the decision of the Supreme Court in this case, and in the light of the legislative enactment, that there is no evidence before this court which would justify the conclusion that the amendatory zoning ordinances, as applied to the properties improved with retail business, are invalid or unconstitutional as a matter of fact.

For the reasons stated, it is my opinion that the petition of the plaintiff and the petition of the cross-petitioning appellees should be denied.


author: By KIRK, J.

text:
    BROWN, d. b. a. THRIFTWAY SUPERMARKET, Plaintiff, v. AMALGAMATED MEAT CUTTERS AND BUTCHERS WORKMEN OF NORTH AMERICA LOCAL NO. 7 (AFL-CIO) et, Defendants.
    Common Pleas Court, Clermont County.
    No. 26649.
    Decided August 27, 1956.

      (KIRK, J., of Clinton County, sitting by designation in Clermont County.)
   OPINION

By KIRK, J.

(sitting by assignment).

Plaintiff, Harry Brown, doing business as Thriftway Supermarket, in this action against the defendants Amalgamated Meat Cutters and Butchers Workmen of North America, Local No. 7 (AFL-CIO), an unincorporated labor association, Retail Clerks District Council No. 9, an unincorporated labor association, Retail Clerks International Association, Local Union No. 1109 and certain individual defendants, both individually and as officers of the defendant unions, seeks an injunction against defendants’ picketing of plaintiff’s place of business, a retail grocery store in Loveland, Ohio.

The defendants meat cutters’ union and its officers have made no defense and as to them the allegations of the petition are confessed to be true.

The defendants clerks’ unions and their officers have filed an answer denying the material allegations of plaintiff’s petition.

The cause came on for hearing on a motion for a temporary restraining order against the picketing which was granted July 21, 1956.

. By stipulation, the evidence received at the hearing on the motion for a temporary restraining order has been tendered on transcript for the disposition of the cause on the merits. Briefs have been filed by both sides.

From the evidence, the court finds the following facts:

On June 29, 1956, twelve of the thirteen clerks employed by plaintiff who would be eligible for membership in the clerks’ union, signed applications for membership in that union. The application cards authorized the union “to represent me for the purpose of collective bargaining and handling of grievances, either directly or through such local union as it may duly designate.”

On the same day and some six or seven hours later, a representative of the union, the defendant, Questa, entered the store of plaintiff and sought to engage him in conversation as a representative of his clerk employees. Plaintiff refused to discuss the matter and Questa immediately left the premises followed by all twelve of the employees who had signed the application cards and by some of the other employees. A picket line was immediately formed outside the store with banners bearing the name of defendant clerks’ union and announcing a strike. Within a few minutes one of the employees who had signed an application for membership in the clerks’ union returned to work. The next day five more of the twelve clerks returned to work. On July 10, six more of the clerks returned to work. The remaining two clerks continued to picket plaintiff’s place of business, carrying the banners referred to until the temporary restraining order was issued. The picketing has been under the supervision of the union which has maintained a supervisor on the picket line.

Some time prior to the walkout some of the employees had requested higher wages and plaintiff had promised to increase them as soon as he was able to do so. After the walkout, plaintiff discontinued Sunday operations about which there had been, apparently, some complaint on the part of some of the employees and did increase wages of some but not all of the employees who returned to work.

On July 6th, representatives of plaintiff met with representatives of the three unions. In reply to an inquiry as to what would be required to end the strike, the union representatives told plaintiff’s representatives that it would be necessary to sign the unions’ standard contracts by the terms of which plaintiff would recognize the unions as the sole bargaining representatives of all of plaintiff’s employees and which would require that all of plaintiff’s employees join and maintain membership in the unions as a condition of their employment.

Later on the same day there was presented to plaintiff’s manager, a petition signed by numerous employees, among them the six employees who had signed applications for membership in the clerks’ union but who had by this time returned to work, in the following language:

“July 6, 1956

“Mr. Brown, we do not like the tactics the Union has been using at our store in picketing and causing all of this trouble. No matter what any of us may have signed in the past, we want, you to know that we do not approve of these tactics.

“We do not want to join or belong to this Union and do not want it to speak for us or represent us in anyway. We have no grievances or disputes with you or anyone over wages, hours or working conditions and want the Union to leave us alone.

“We have signed this of our own free will without any threats or promises of any kind from the company.”

On July 10th a similar petition was signed and presented to plaintiff by other employees including the four of those who had signed applications for membership in the clerks’ union but who had returned to work on this day.

Thus all of the retail clerks except the two who remained on the picket line had by July 10th rescinded the authority which they had given to the union to represent them and had plainly and strongly expressed their unwillingness to belong to the union or to have it represent them.

In connection with membership in the union, it is interesting to note that none of plaintiff’s employees has ever been accepted into membership in the union. The acceptance portions of the application cards remain blank, even in the case of the two employees who had not returned to work and who were picketing on July 21st. In fact, the defendant Questa, an organizer for the union, testified that it was the union’s practice not to accept initiation fees or dues until the union has a signed contract with the employer. However, the court does not consider this fact as controlling since the union here has the authority to represent the two employees who have not returned to work. But the court’s decision is not based on the fact that none of plaintiff’s employees is actually a member of the union.

The court concludes that there is no dispute or disagreement between the plaintiff and his non-striking employees at this time. As to the two employees who have not returned to work and who testified at the hearing, the court is driven to the conclusion that their only “grievance” is the fact that plaintiff has refused to sign a union agreement with the defendant clerks’ union by which all of their fellow clerks would be required against their wills to be members of the union in order to keep their jobs. These two were active in procuring applications for membership in the union and one of them had been previously affiliated with the union. In other words, the court finds as a fact that the sole object of the picketing on the part of the defendant union is to organize plaintiff’s store contrary to the expressed wishes of about 85 per cent of his employees who would be eligible for membership in the union.

Quaere: Should picketing by these two employees or others under the auspices of the union under these circumstances be enjoined?

Picketing is a powerful weapon. Many members of the public at large refuse to patronize a place of business which is being picketed. In the instant case, although the picketing has been entirely peaceable, plaintiff’s manager testified that business had fallen almost 30 per cent. In addition because of the policy of delivery drivers to refuse to cross picket lines, the plaintiff has been put to additional trouble and expense in obtaining delivery of merchandise to his store.

Recognizing the rights of employees to peacefully picket for lawful purposes, it is the policy of the law not to interfere with such picketing. But the converse of this proposition is equally true. Where the picketing is for an unlawful purpose or for a purpose which is against public policy, it will be enjoined. Anderson Sons Co. v. Union, 156 Oh St 541.

The court feels that it is obviously against public policy to permit to be forced upon the great majority of an employer’s employees membership in and representation by a union against the expressed desires of such employees and that picketing against an employer by or under the auspices of a union for that purpose is wrongful and should be enjoined.

Therefore, under the principle of Crosby v. Rath, 136 Oh St 352, and under the authority of Anderson v. Union, 38 LRRN 2324, Fairlawn Meats, Inc. v. Union, 99 Oh Ap 517, Johnson Bros. v. Union, 51 O. O. 122 and Bean v. Union, 51 O. O.152, the temporary injunction heretofore granted in this cause will be made permanent.

The plaintiff will recover his costs.

Counsel for plaintiff will prepare an appropriate entry and submit the same to counsel for the answering defendants and then to the court.


author: By THE COURT.

text:
    BROWN, d. b. a. THRIFTWAY SUPER MARKET, Plaintiff-Appellee, v. AMALGAMATED MEAT CUTTERS AND BUTCHER WORKMEN OF NORTH AMERICA, LOCAL NO. 7 et, Defendants-Appellants.
    Ohio Appeals, First District, Clermont County.
    No. 241.
    Decided April 29, 1957.
    J. Mack Swigert, Hulse Hays, Jr., Forrest Ely, for plaintiff-appellee.
    Smith & Latimer, Walter F. Smith, Hugh C. Nichols, for defendants-appellants.
   OPINION

By THE COURT.

A decree similar to the one entered in the Court of Common Pleas of Clermont County, Ohio, will be entered in this Court.

HILDEBRANT, PJ, MATTHEWS & LONG, JJ, concur.


author: By DOYLE, J.

text:
    SANGER et, Appellees, v. GROSS, Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24115.
    Decided May 7, 1957.
    Harry Sanger, Sheldon E. Ross, Carl A. Mintz, in Propriae Personae.
    Sarah Gross, In Propria Persona.
    (Judges of the Ninth District sitting by designation in the Eighth District.)
   OPINION

By DOYLE, J.

This is an appeal from a judgment of the Municipal Court of Cleveland, Ohio, entered in favor of the appellees and against the appellant. It is designated an appeal “on questions of law and law and fact.”

For the reason that the case is not appealable on questions of law and fact, we entertain the appeal on questions of law, and dismiss the appeal on law and fact.

A bill of exceptions has been approved and filed within the statutory time, and the errors assigned are fully set out in the appellant’s brief.

It appears that on April 11, 1956, Harry Sanger, Sheldon E. Ross and Carl A. Mintz, attorneys at law in the city of Cleveland, filed a petition in the Municipal Court, in which they sought a judgment against Sarah Gross in the amount of $3,000. They asserted that they had rendered legal services for Miss Gross on occasions, including the successful handling of a case, in which she was a litigant, in both the Common Pleas court and Court of Appeals of Cuyahoga County. It was further asserted that they were entitled to one thousand dollars by virtue of a contract for the trying of the case in the Court of Common Pleas, and two thousand dollars for the trying of the case on appeal — that amount representing the reasonable value of their services.

A manuscript, said to be an answer and cross-petition, was prepared and filed, by the defendant, Gross, in propria persona. It reflects in every respect the ineptness of a layman in an attempt to practice law. But whatever it may be called, it at no place admitted or acknowledged an obligation to pay the amount demanded or any other amount. It inferentially denied a contract of hire, and denied any indebtedness to the plaintiffs.

The following language is taken from the purported answer: “that said * • 5 plaintiffs did not render legal services and advice, which was for our best interest and benefit; that said plaintiffs acted without our expressed authority, and, as such, are entitled to no compensation for their legal services.” (The word “our” therein referred to Miss Gross and her sister.)

While the instrument designated an answer and cross-petition was signed by the defendant, Gross, it was not verified under the terms of the statute. A motion to strike from the files lies where an answer lacks a proper verification, but objection to the verification of an answer is deemed to be waived if a party proceeds without challenging the defect. See: 31 O. Jur., Pleading, pg. 832, Sec. 244, and cases cited in support of the text.

We find nothing in the record before us indicating an objection to the sufficiency of the pleading, and, as a consequence, when the case came on for hearing, the allegations relating to the plaintiffs’ claimed right to judgment were put in issue.

Pursuant to the setting of the case for trial, under the rules and regulations of the Municipal Court, the various parties appeared before the judge assigned to try the cause. The appellant, Gross, was not represented by counsel, and sought, for the second time, a .continuance..

The record shows the following:

“The Court. All right. We have to bring this case to a head. Judge Busher (an associate judge of the Municipal Court), the other day, refused a.continuance; refused a demand for a jury; and so this, case is set to be heard in my room. Here is what I am going to do: You want a continuance and a chance to get yourself a lawyer, is that correct?

“Miss Gross. Whatever you say, Judge. I leave it to you.

“The Court. It is your money, not mine. Do you feel you are in a position to go ahead and defend yourself in this case without a lawyer?

“Miss Gross. I would like to have a lawyer if you give me permission.

“The Court. That is what I am leading up to. On the other hand, these men are entitled to bring this thing to a head.

“Miss Gross. I was entitled to it, too. They kept up my lawsuit three years.

“The Court. Now, here is what I am going to do: I am going to enter a judgment, a default judgment, for the plaintiffs in the amount of $3,000, the amount prayed for, and you will have ten days to get yourself a lawyer to file a motion to vacate and to file a motion for a new trial. Now, if you don’t do that, the judgment will stand. Is that understood?

“Miss Gross. Yes.”

Following this hearing, a part of which is set out above, the court entered the following judgment:

“Parties in Court. Defendant’s counsel withdraws on account of nonpayment of fees. Defendant choosing not to proceed without counsel, and in view of J. (Judge) Busher’s overruling of defendant’s motion for continuance, this court enters judgment for plaintiffs for $3,000 and costs. Defendant’s cross-petition dismissed for want of prosecution.”

A motion for new trial was duly filed by Miss Gross, in which she claimed various errors in the proceedings.

The entry of judgment deciding this motion appears as follows:

“Both parties in court. Defendant’s motion for a new trial is hereby overruled. Remittitur of $500 ordered. Defendant excepts.”

It appears from the foregoing statement of the Judge, and the subsequently-entered journal entry, that the court was of the opinion that it was empowered to enter a default judgment, even though the defendant was neither in default for answer nor for appearance in court at the time set for the trial.

Without further comment, it is obvious that these circumstances defeated any right of the plaintiffs to a default judgment.

It may be that the court could have properly compelled an immediate trial because of the prior conduct of the defendant, which included the granting to her of five separate extensions of time to plead, as well as a previous continuance of the trial of the case; but no authority rested with the court under the laws of this state to enter a default judgment. ■

The defendant was entitled at least to a trial in which the plaintiffs should submit their proof, and she, if she saw fit, could defend.

For the foregoing reasons, the judgment will be reversed, and the cause remanded to the Municipal Court for further proceedings.

. Reversed and remanded.

HÚNSICKER, PJ, STEVENS, J, concur.


author: By GRIFFITH, J.

text:
    CONNOR, a Minor, Plaintiff-Appellant, v. ATLANTIC FREIGHT LINES, INC. et, Defendants-Appellees.
    Ohio Appeals, Seventh District, Jefferson County.
    No. 1097.
    Decided December 28, 1956.
    Francis, Irvine, Hayes & Cooper, Steubenville, for Atlantic Freight Lines, Inc., defendant-appellee.
    Kinsey & Allebaugh, Steubenville, for H. L. Gentry Construction Company, defendant-appellee.
    Ben H. Berman, East Liverpool, Berkman, Weinman & Anglin, Steubenville, for plaintiff-appellant.
   OPINION

By GRIFFITH, J.

There are two defendants in this case. As to the claim of plaintiff against the H. L. Gentry Construction Company the jury found in favor of plaintiff and against the H. L. Gentry Construction Company in the sum of $2,000.00. Any errors other than the sufficiency of the verdict have all been resolved in favor of plaintiff and he could not be prejudiced thereby. McAllister v. Soule, 24 Abs 118.

Was the verdict inadequate? That is all there is to the appeal as it relates to the H. L. Gentry Construction Company. From a reading of the record we cannot say that a $2,000.00 verdict is grossly inadequate or insufficient. It was well within the province of the jury to determine what injuries the plaintiff suffered, and we cannot say that the amount found shocks the conscience of the court, and as to the defendant H. L. Gentry Construction Company the judgment should be and hereby is affirmed.

Coming now to the appeal as it relates to the defendant-appellee, Atlantic Freight Lines, Inc., we believe the jury concluded that the H. L. Gentry Construction Company was the one that started in motion the chain of events leading to plaintiff’s injury, and that the Atlantic Freight Lines, Inc., was clearly and totally free from any negligence, and as a result properly found in favor of the Atlantic Freight Lines, Inc.

Substantial justice has been done in this case, and nothing occurred during the trial prejudicial to the plaintiff as against the Atlantic Freight Lines, Inc.

Judgment affirmed.

PHILLIPS, PJ, NICHOLS, J, concur.