author: By DEEDS, J.

text:
    WEINER, Plaintiffs-Appellants, v. BARON, Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 5455.
    Decided October 31, 1956.

      Barkan, Brown & Reeves, Morton Y. Reeves, Columbus, for plaintiffs-appellants.
    John M. Bowsher, Columbus, for defendant-appellee.
    (DEEDS and FESS, JJ, of the Sixth District; HÜNSICKER, PJ, of the Ninth District, sitting by designation in the Second District.)
   OPINION

By DEEDS, J.

This appeal on questions of law is from a judgment for defendant against plaintiff-appellant by the Court of Common Pleas, Franklin County. The plaintiffs-appellants commenced the action in the Court of Common Pleas seeking a judgment in the sum of $800.00 against the defendant-appellee, a licensed real estate broker on account of a payment which had been made in that amount by plaintiffs to defendant in the purchase of certain real estate.

By agreement of counsel a jury was waived and the cause was tried to the court. Pursuant to a request by the plaintiffs the trial judge made a finding of facts separately from conclusions of law and judgment was thereafter entered in favor of the defendant. Motion for a new trial was overruled by the trial court.

The finding of facts and conclusions of law made by the trial court are as follows:

“MARSHALL, J.
“Plaintiffs have requested the Court to state in writing the conclusions of fact found separately from the conclusions of law in this action.
“The Court finds the following facts from the evidence in this case:
“1. On July 21, 1951, plaintiff, J. J. Weiner, signed a form of offer to purchase, prepared by defendant, offering to purchase property at 104 S. Stanwood Road, Bexley, Ohio, for $16,000, without designating a time for acceptance; $100 earnest money accompanies the offer. This form was never signed by the owners of said property. (See Plf. Ex. 1.)
“2. On August 9, 1954, plaintiff, Mildred Weiner, the wife of plaintiff J. J. Weiner, signed a form of offer to purchase prepared by defendant, offering to purchase said same property at 104 S. Stanwood Road, Bexley, Ohio, for $15,200.00 cash, net to sellers, with this further condition: T also agree to relieve the owners of the above property from paying a fee to the selling broker and will take care of same as my personal obligation, in accordance with rates now charged by the Columbus Real Estate Board.’ This document recited that: ‘This proposal is irrevocably in effect to and including August 20, 1951.’ Although this document recites that $800.00 earnest money was deposited with defendant at the time of execution by said Mildred Weiner, the evidence showed that $700.00 was so deposited at that time, being an amount in addition to the $100.00 deposited on July 21, 1951 by said J. J. Weiner. This form was never signed by the owners of said property. (See Plf. Ex. 2.)
“3. On Monday, August 20, 1955, 8 A. M., the plaintiff, J. J. Weiner, his attorney, Irwin W. Barkam, and defendant went to the Court House to see the Probate Judge of Franklin County, Honorable C. P. McClelland, for the purpose of arranging, if possible, for the purchase of the premises in question, but were notified by Mr. Eberle, his deputy, that the Judge had gone out of the city for a number of days and wouldn’t be available until his return to Columbus, whereupon the defendant left the city for the balance of the week on a business trip.
“4. On Wednesday, August 22, 1955, the plaintiff, J. J. Weiner and his attorney, Irwin W. Barkan, met at the office of the acting Probate Judge, Judge Dana F. Reynolds, with Mr. Ben Levinson, attorney for one of the estates through which title to the premises in question came, namely, Kissie A. Towns, deceased, and one or more other individuals. At such conference it was disclosed that the person who offered the highest amount for said property would be entitled to purchase the same. One individual named Benowitz offered $16000 after which plantiff, J. J. Weiner offered $16,200 and was declared to be the one who could have said property.
“5. Defendant’s Exhibit ‘A’ is an assignment by Jack J. Weiner, a plaintiff herein, dated and witnessed on October 3, 1951, before Irwin W. Barkan, by which said Jack J. Weiner assigned all his interest in the property in question to William Fisher. The title to said premises was thereafter conveyed directly from the estates of the former owners to said William Fisher.
“6. When plaintiffs signed Plaintiffs’ Exhibits 1 and 2, they were informed that the former two owners of the property in question, Mr. and Mrs. Kissie A. Towns, had died, leaving a great number of heirs, that their estates were being administered by the Probate Court of Franklin County, and that the offers to purchase made by plaintiffs would have to be submitted to the Probate Court for approval.
“7. Prior to Wednesday, August 22, 1955, plaintiff, J. J. Weiner, was informed that he must put up a check for $1000.00 with the Court and he did so, which amount was applied on the purchase price of the property in question.
“8. No demand for the return of the $800.00 was made on defendant on August 21, 1951, or prior to the time the Acting Probate Judge, Judge Reynolds, informed plaintiff, J. J. Weiner, that he could buy the property in question for $16,200.00 which occurred August 22, 1951. On defendant’s return to Columbus, on or about August 28, 1951, he learned for the first time that said J. J. Weiner had bought the property in question through the court the week before.
“The Court makes the following conclusions of law, based upon the findings hereinbefore set forth:
“1. The two proposals to purchase (Plfs.’ Exts. 1 and 2) must be considered together. While by the terms of the offer dated August 9, 1951, it was irrevocably in effect to and including August 20, 1951, it was not automatically revoked by its terms after August 20, 1951.
“2. By the terms of the offer made August 9, 1951, plaintiff, Mildred Weiner, agreed to personally pay the customary 5% fee to the selling broker, defendant herein, and to relieve the owners from paying any such fee, provided the proposal, or any modification thereof which the purchaser may approve, was accepted and all conditions fulfilled. The plaintiffs failed to revoke their offers of purchase but instead kept negotiating and increased their offers to purchase to the sum of $16,-200.00 and consummated the purchase on such basis. Therefore, the original offers, as modified by the purchasers, were accepted and all conditions fulfilled. This converted the $800.00 deposited into an earned commission by defendant, and made unnecessary the return thereof to purchasers.
“3. Under the circumstances of this case the plaintiffs had an affirmative obligation to defendant, the broker, to cancel the offer of purchase and demand the return of their deposits. This they failed to do but instead continued to negotiate and consummated the purchase at a figure greater than was set forth in their original offers. Defendant was entitled to a broker’s fee and the Court, therefore, finds in favor of defendant in this case.
(Signed) George B. Marshall JUDGE”
“MARSHALL, J.
“Heretofore, on October 24, 1955, this Court stated in writing eight findings of fact, and also stated in writing three conclusions of law, at request of plaintiffs.
“The Court hereby makes several corrections to three of said former findings of fact, and adds further findings of fact Nos. 9 through 13, as the basis for the three conclusions of law stated on said October 24, 1955, as follows:
“Correction to the former conclusion of fact No. 3. Change the year from ‘1955’ to ‘1951,’ and in the first and second lines thereof delete the words ‘plaintiff, J. J. Weiner, his’ and substitute therefor ‘plaintiffs.’
“Correction to the former conclusion of fact No. 4. In the first line of said fourth conclusion of fact, change the year ‘1955’ to ‘1951,’ and after which insert the words: ‘without the prior knowledge of defendant,’ so that said first line will read as follows: ‘4. On Wednesday, August 22, 1951, without the prior knowledge of defendant, the plaintiff, J. J. Weiner.’
“Correction to the former conclusion of fact No. 6. In line 2, after ‘informed’ add the words ‘by the defendant.’ In line 3 strike out ‘Kissie A.’ and substitute in lieu thereof ‘Harry E.’
“Correction to the former conclusion of fact No. 7. Change the year from ‘1955’ to ‘1951.’
“The following additional or supplemental findings of fact are hereby made to further support the three conclusions of law stated in said October 24, 1955, findings of the court:
“9. That Harry E. Towns and Kizzie A. Towns were husband and wife and had been the owners in common of the real estate located at 104 South Stanwood Avenue, Bexley, Ohio; Kizzie A. Towns died intestate on April 27, 1950, leaving no children or lineal descendants nor any parents but leaving her husband, Harry E. Towns, surviving; Harry E. Towns died on January 24, 1951, the owner of said real estate. (Taken from Exhibits Pltff. No. 5 and Def. No. C, being the applcation for attorneys’ fees and decision thereon.)
“10. That prior to July 21, 1951, the defendant, a licensed real estate broker, advertised the property located at 104 South Stanwood Avenue, Bexley, Ohio, for sale in a Columbus newspaper, the defendant having been given the key to the house at said address and having been permitted to advertise this property for sale by Frank H. Ward, attorney for the administratrix of the estate of Harry E. Towns, deceased.
“11. That the plaintiffs learned through the efforts of defendant that the said property was for sale and defendant took the plaintiffs through said property showing them said premises.
“12. That the form of purchase offer signed on August 9, 1954 by Mildred Weiner contained the following provision: T hereby deposit with you $800 earnest money to be held by you in trust until this proposal, or any modification thereof which I may approve, is accepted, and all conditions fulfilled. If not accepted the deposit shall be returned.’
“13. That the defendant was the procuring cause of the sale of the real estate at 104 South Stanwood Avenue, Bexley, Ohio.
“The motion of plaintiffs for judgment in their favor on findings of fact rendered by this Court on October 24, 1955, filed on November 1, 1955, will be considered as having been filed subsequent to the amendments and supplemental findings of fact contained in this order and the Court finds said motion not well taken and therefore overrules the same.
“Upon oral motion of defendant the Court hereby renders judgment herein in favor of defendant on the Findings of Fact, as originally stated on October 24, 1955, and as amended herein, and also on the additional or supplemental findings of fact as contained in this order, and in conformity to the three conclusions of law as stated in the original findings filed herein on October 24, 1955.
“An entry may be submitted to the court in conformity to this order, with exceptions to plaintiffs as to all adverse rulings. If a motion for a new trial is made by plaintiffs, it may be considered overruled.
(Signed) George B. Marshall, JUDGE.”

A bill of exceptions containing the testimony of the witnesses at the trial and exhibits was duly filed and is before this Court for review and a consideration of the evidence in relation to the finding of facts and conclusions of law as made in the trial court and as set out above.

Plaintiffs have presented their assignments of error as follows:

1. The Court of Common Pleas erred in overruling the motion of the plaintiffs-appellants for judgment and special findings of fact rendered on October 24, 1955.

2. The Court of Common Pleas erred in filing an amended statement of fact after both parties had moved for judgment on the original findings of fact.

3. The Court of Common Pleas added additional findings of fact to support the conclusions of law instead of drawing conclusions of law based upon the facts as found in special findings of fact.

4. The Court of Common Pleas found issues of fact not supported by any testimony of the witnesses or exhibits.

5. The Court of Common Pleas erred .in entering a judgment for the defendant against the plaintiff, said judgment being against the weight of evidence and special findings of fact.

6. Other substantial prejudicial errors of the Court of Common Pleas manifest in the judgment, record and proceedings in said cause.”

We find the assignments of error not well taken and same are overruled.

We find and determine further that the finding of facts as made by the trial court is supported by the evidence contained in the record and that applicable and correct conclusions of law were announced by the trial court in conformity with the evidence as found by that court.

The judgment of the Court of Common Pleas is affirmed.

FESS, J, HUNSICKER, PJ, concur.


source: Caselaw Access Project

author: By EAYNES, J.

license: Public Domain

text:
    JOHNSTON, a Minor, Plaintiff, v. JOHNSTON, Defendant.
    Common Pleas Court, Madison County.
    No. 20486.
    Decided May 27, 1957.
    Richmond & Richmond, C. D. Richmond, of Counsel, London, for plaintiff.
    Mayer & Leshy, Goldie K. Mayer, of Counsel, Columbus, for defendant.
   OPINION

By EAYNES, J.

This cause came on for trial on the petition and answer. Plaintiff alleged that defendant was guilty of gross neglect of duty and extreme cruelty without specification. Defendant denied the charges. Both parties and their counsel were present at trial. At the close of plaintiff’s case defendant moved to dismiss the petition for failure of proof.

Plaintiff and three corroborative and two character witnesses testified. Defendant was not called as upon cross-examination. The charge of gross neglect of duty is not supported by satisfactory evidence. Neither are the elements of extreme cruelty, the principal one on which plaintiff relies we reluctantly elaborate. This for the reason is was in effect contended, on plaintiff’s behalf, that not to grant plaintiff relief would have the effect of judicially approving immoral conduct. Further that it would leave plaintiff without a forum or means of relief.

Obviously these contentions assume certain proof, not necessarily well made, and begs the question. Neither counsel, orally or otherwise, cited any authority for their respective contentions, which too frequently happens. It is also true that there is no Ohio authority on the one issue on which it is claimed plaintiff should prevail, which is, that mere proof of acts cunnilingus and fellation, on mere suggestion by the defendant, entitles the complainant to a decree on ground of extreme cruelty.

The parties were married 9 July 1953 in an adjacent state where a “Marriage Mill” was in notorious operation. Plaintiff was then fifteen years of age and defendant twenty-three. They have one child born 12 May 1954. Neither of plaintiff’s divorced parents knew of the marriage until afterward.

Plaintiff is normal physically and not without beauty. She has better than average intelligence, her school grades averaged “B.” Defendant was unable to profit from further education after the sixth grade. He is also handicapped physically as a result of poliomyelitis which left the use of his right arm and leg impaired.

It might also be well to observe that plaintiff’s attitude both on and off the witness stand was care free nor was she inhibited or embarrassed in the slightest by the nature of her testimony. On the other hand defendant’s demeanor was that of a person defeated physically, mentally and spiritually.

Abnormal or unnatural coitus is not one of ten grounds for which a divorce may be granted under §3105.01 R. C. In Nelson on Divorce and Annulment 2d ed. v. 1, 284, Section 6.24 it is said that such demands are sometimes alleged as cruelty as going to establish such charge. It is also stated that such matters are proper for consideration but are difficult to prove to the satisfaction of the Court.

There was no attempt on plaintiff’s behalf to establish more than the fact of cunnilingus and fellation. In order to establish that such acts constitute extreme cruelty, we hold that it must be satisfactorily proved that the acts are against the will of the complaining party, that it is affirmatively shown to be detrimental to such party’s mental or physical health so as to render the marital relationship intolerable or unendurable.

There is not a scintilla of evidence in the record to this effect. It might even be inferred by the repetition, from time to time, of cunnilingus that it was desired by the complainant and that the fellation was not without gratification to her. In any event it was at no time given as a cause of plaintiff’s separation from her husband and one of the reasons for filing the suit.

Plaintiff testified that on 8 January 1957 she left her husband and child and was gone until 13 January 1957:

Q. What, if anything, happened when you returned to your mother’s house on that Sunday?

A. I hadn’t been home but about a half hour until my husband came to the house and knocked on the door and he came in and we talked things over and he promised me that he would get rid of the horses and pay the bills that we owed and I would come back to him and so I went back with him that night.

Q. How long did you stay with him?

A. Until I left in February.

Q. What brought about your leaving in February?

A. Well he didn’t do the things that he promised to do so I left him.

This leaving took place on Friday, 1 February 1957. Plaintiff went to an elderly aunt’s house. The aunt testified on plaintiff’s behalf corroborating the fact that defendant called at her home on Sunday, February 3rd and made certain admissions which were but barely in-ferrable, if at all, as to fact of cunnilingus and fallation. Apparently some discussion later was had between plaintiff and her aunt out of defendant’s presence for this testimony on final redirect examination appears:

Q. When did you first find out that sexual relations between you and your husband were other than what ordinary people, married people, have?

A. Well actually it was on the night that my husband came to my aunt’s house.

Q. When was that?

A. That was in February.

Q. Up until that time you thought that you were — your sexual relations were perfectly normal, is that correct?

A. Yes.

Plaintiff testified that cunnilingus began in November 1953 while she was pregnant, which is difficult to believe. That on the average abnormal coitus occurred once out of each five or six times that coition was had. She testified that it was first suggested by the defendant but she admitted on cross examination that she told defendant she didn’t want to become pregnant again, from which adverse inferences to plaintiff may be drawn.

Plaintiff was evasive on direct examination as to the fellation. At the Court's insistence upon plaintiff answering the direct question she said, “never.” However, on cross examination she first reaffirmed her denial but then evasively admitted she had. At the Court’s insistence upon plaintiff answering the direct question she admitted the fellation.

We have examined fifteen of the cases cited under foot note 30, cum. sup. in Nelson on Divorce and Annulment, Section 6.24, above referred to, and §2805.44 R. C., defining sodomy. In Ohio fellation is construed to be an offense under the sodomy statute. It is probable, and there is authority that cunnilingus is not; State v. Forquer, 74 Oh Ap 293, 29 O. O. 439, 58 N E 2d 696.

In so far as the private moral relationship between husband and wife are concerned (as to either cunnilingus or fellation;, it is certainly one that rests entirely in the minds and consciences of the two of them; Saffer v. Saffer, 42 Wash. 2d 298, 254 P 2d 746, 749.

In a case where the plaintiff wife complained of fellation against her will which continued over a span of nine years the court indicated that such a course of conduct, if not imperilling the wife’s mental or physical health, or both, made her life unbearable; and was, in view of the corroboration found by the Court, justification for terminating the marriage. Maranto v. Maranto, 192 Md. 214, 64 A. 2d 144.

In a suit for divorce an element of extreme cruelty charge was that the husband subjected the wife to fellation over a two year period, against her will causing her extreme mental agony, undermining her health and making the marriage unendurable. The Court found that there was no categorical corroboration, but that in such case, corroboration could be found from surrounding facts and circumstances; Gilbert v. Gilbert, 24 N. J. Super. 473, 94 A. 2d 863. See also Grobart v. Grobart, 107 N. J. Eq. 446, 152 A. 858; aff’d 109 N. J. Eq. 129, 156 A. 420.

For the purposes of this opinion we have assumed corroboration of fact of the abnormality. Direct corroboration was lacking and it is difficult, if not impossible, to hold that it was well made from the surrounding facts and circumstances.

The facts of this case are clearly one for the application of the clean hands doctrine. It is not unfair to observe that the parties lack gentility.

It may well be that these parties find themselves in the same position and condition as the parties in Slyh v Slyh, 72 Abs 537, 544, 135 N. E. 2d 675, where the Court said:

“The situation of the parties is unfortunate and it may be that their differences cannot be reconciled. However, that is not the basis for a divorce decree. . . . There is a third party in every divorce action, the public. Divorce is a creature of the statute and may be granted only upon some proof of some cause of action created by the statute.”

We have considered this matter on our trial notes and a transcript of the plaintiff’s testimony of fifty-three pages which the Court Reporter was directed to furnish the Court. In passing on the motion we have given plaintiff’s case the benefit of all reasonable and favorable inferences, as we are required to do. This was not made any easier by plaintiff’s demonstrated lack of respect for the truth.

The Court has prepared and filed its own entry, dismissing the petition at plaintiff’s costs.


author: By THE COURT.

text:
    HERMELIN, d. b. a. R. & H. FOOD MARKET, Appellee, v. BOARD OF LIQUOR CONTROL et, Appellants.
    Ohio Appeals, Second District, Franklin County.
    No. 4893.
    Decided June 3, 1953.
    Leonard J. Stern, Columbus, for appellee.
    C. William O’Neill, Atty. Geni., Ralph N. Mahaffey, Asst. Atty. Geni., Columbus, for appellants.
   OPINION

By THE COURT.

This is an appeal from the judgment of the Common Pleas Court reversing an order of the Board of Liquor Control, affirming an order of the Director of Liquor Control in rejecting an application for a Class C-2 permit.

The application was rejected by the Director on the ground that at the hearing conducted by the Department “the authorities in control of the Antioch Eaptist Church and Bolton Elementary School objected to the issuance” of the permit. The Department considered said objections well founded, and determined it inadvisable to issue said permit.

When the matter was heard by the Board, no representative of the school appeared, but the minister of the church did appear and objected to the issuance of the permit. He testified that: “The area is saturated with liquor outlets. We have far more liquor outlets than we have grocery stores in that area. * * * Because of the heavy concentration of that situation, there is always a nuisance group from 6:30 or 7:00 in the morning until late at night. * * * The grocery store is more of a nuisance than the regular taverns, because they are open on Sunday. The theory is they can buy by the package and carry it out, but the actual practice is, they will come out and open it in their cars, and throw the bottles on the lawns, and it is more of a nuisance than the regular taverns. * * * Women cannot come through at night. They’re not safe. It is a difficult situation. * * * Our church is geographically located in that community so that our Sunday School children come from that immediate community, as well as those in the elementary school which is across the street from us, and we are concerned about the children and families of our church as well as the other churches, and they must pass through that community; a thousand from Bolton School, and two-thirds of them pass up and down from that particular area four times a day, five days a week, and that is my further objection to the issuance of this permit.”

The minister further testified that he was authorized to object to the issuance of the permit by unanimous vote of his congregation.

The record shows that the church was approximately 250 feet and the school approximately 420 feet from the location of appellee’s place of business, which is a food market. A Class C-2 permit is a “carry-out” permit, and does not authorize consumption on the premises. The application was for a new permit.

Sec. 6064-16 GC in part provides:

“* * * no permit shall be issued by the department under authority of this act if the business specified to be operated in the permit applied for is to be operated within a distance of five hundred feet from the boundaries of a parcel of real estate, having situated thereon a school, church, library or public playground, until written notice of the filing of said application with the department shall have been personally served upon the authorities in control of said school, church, library or public playground and an opportunity shall have been provided said authorities for a full and complete hearing before the director of liquor control upon the subject of the advisability of the issuance of the said permit; except in the case of an application from a permit holder for a permit of the same class for the same location.”

The Department complied with the provisions of this section. By the enactment of this provision the Legislature declared the public policy of the State to be more stringent in granting permits where the business is located within 500 feet of a school, etc., than when this situation does not-obtain. A complete hearing before the Director is afforded to any objector. The subject is the “advisability of the issuance of said permit.” The Director of the Department exercises a broad discretion in determining the “advisability” of issuing or rejecting the application. The section applies to all permits, as no distinction is made with respect to the different classes of permits. It may be conceded that a more cogent reason could be offered for the rejection of a permit which allowed the consumption on the premises, as distinguished from a “carry-out” permit. However, this distinction lies only in the realm of proof, since the statute does not distinguish between the several classes of permits.

The Director found it to be “inadvisable” to issue the permit. The Common Pleas Court held that the order was not supported by “reliable, probative and substantial evidence” as provided in §154-73 GC. We disagree. When the evidence shows that a school and a church are located within 500 feet of the place of business specified, and the school and church authorities object to the issuance of the permit, and the supporting evidence shows that the objection is made in good faith, as here appears, there is presented “reliable, probative and substantial evidence” upon which a sound discretion may be exercised by the Director in determining the advisability of issuing the permit. On the evidence presented we cannot say that the Director abused his discretion in rejecting the application. The order rejecting the application was in accordance with law.

In Meyer v. Dunifon, 88 Oh Ap 246, this Court used language which has application to the particular issues presented here. On page 247, the Court said:

“The Common Pleas Court, under §154-73 GC, was empowered to review the action of the board but not to substitute its judgment for that of the board. Farrand v. State Medical Board, 151 Oh St 222, 85 N. E. (2d), 113. Since the Board of Liquor Control was the trier of the facts, it possessed wide discretionary powers and its ruling may be reversed if it exceeded its authority or abused its discretion. It must be conceded that the objection by the church authorities to the issuing of these permits to be used by a tavern within 500 feet of the church constituted a valid objection under §6064-16 GC.”

On page 250 this Court said:

“The record discloses that the objections made by the church were substantial and therefore supported the ruling of the department. Under such circumstances the board did not abuse its discretion.”

Finding error in the record prejudicial to the rights of the appellant, the judgment of the Common Pleas Court is reversed and the action of the Board of Liquor Control is affirmed.

Judgment reversed.

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


author: By McCLAIN, J.

text:
    LAKEVILLE (Village), Plaintiff, v. CONNEAUT (City) et. Defendants.
    Common Pleas Court, Ashtabula County.
    No. 44362.
    Decided November 30, 1956.

      Ray Bolinger, Village Solicitor, Lakeville, Nazor & Nazor, Howard M. Nazor, of Counsel, Ashtabula, Peck, Shaffer &z Williams, John W. Peck, of Counsel, Cincinnati, for plaintiff.
    Jack Stolson, City Solicitor, Conneaut, Squire, Sanders & Dempsey, Henry J. Crawford, George I. Meisel, of Counsel, Cleveland, for defendant, City of Conneaut.
    (McLAIN, J, of Trumbull County, sitting by designation in Ashtabula County.)
   OPINION

By McCLAIN, J.

The Village of Lakeville and the City of Conneaut are contiguous municipal corporations in Ashtabula County, Ohio.

This action is brought by the Village of Lakeville against the City of Conneaut and the Conneaut Banking and Trust Company, Trustee for holders of bonds of the Conneaut Municipal Water Works, and a declaratory judgment is sought defining the respective rights of the plaintiff and the defendant in the use and ownership of certain water mains, lines, and hydrants in the Village of Lakeville and also asks that the said Village of Lakeville be adjudged to be the owner of said mains, lines, and hydrants.

It further appears that the Village of Lakeville, by a vote of the people, has authorized the construction and operation of a water works system for the Village, and that funds for such purpose have been duly authorized.

It is further alleged that the plaintiff, the Village of Lakeville, intends to use the mains and lines as part of its own water works system, but that the ownership of these mains and lines must be judicially determined prior to the issuance of bonds to finance the construction of the utility.

It is admitted, in the answer filed by the City of Conneaut, that a controversy exists as to the ownership of the water lines and mains existing in the Village of Lakeville. In its cross-petition, it is alleged that the water mains and lines located in the Village of Lakeville have been there from periods of approximately 15 to 40 years; that the lines are an integral part of the Conneaut Water Works System, and that the City of Conneaut owns these mains and lines and has the right and intends to continue to use, operate, and maintain them as a part of the water works system of the City of Conneaut and, further, that these water mains and lines have been pledged to secure the payment of bonds of the City of Conneaut for the purpose of extending and improving its water works system.

The defendant, the City of Conneaut, also alleges that a controversy has arisen between the municipalities in respect to ownership and a right to use and operate and maintain the water lines and mains in Lakeville Village, and that a judgment declaring the rights, status, and other relations of the parties hereto in regard to said water lines and mains will terminate the controversy between them and remove the uncertainty and confusion now existing with respect to the ownership, right to use, operate, and maintain said water mains and lines, and the defendant, City of Conneaut, in effect, joins in the prayer for a declaratory judgment.

It appears from the evidence that some of the lines were constructed by private individuals; others by the Conneaut Water Company, and still others by the City of Conneaut with the assistance of the United States Government through W. P. A. and other work relief projects.

It should be stated at the outset that the issues in this case cannot be entirely resolved by a resort to precedent. While there is unquestioned desirability of abiding by antecedent principles, and every controversy should be subjected to scrutiny of the facts at hand, and if the solution can be welded to former adjudications, so be it.

At the same time, it must be recognized that the underlying strength in the pattern of the great body of common law is in its particularized fabric. If distinctions, differentiations, or exceptions are in sound reason indicated, under particular circumstances, upon such considerations is the law itself builded and true justice attained.

The first question to be disposed of is whether or not there is a justiciable controversy between the parties hereto giving this Court jurisdiction to render a declaratory judgment.

It is the contention of the defendant that there is no controversy regarding the lines installed by private individuals; that those who installed them are not parties to this action, and that no declaratory judgment should be rendered in respect to these lines.

It is further urged that no controversy likewise exists as to the lines constructed by the Conneaut Water Company and, if there is, this company is not a party to the proceeding and likewise that no controversy is shown regarding the ownership of the water lines constructed by the City of Conneaut with the financial assistance of the United States Government.

It is further the position of the defendant that a justiciable controversy is a prerequisite for jurisdiction of the Court in a declaratory judgment action, and that jurisdiction cannot be conferred by consent of the parties.

While it is true, as a fundamental proposition, that the existence of a justiciable controversy is a pre-requisite for invoking jurisdiction of a Court in a declaratory judgment and cannot be conferred by consent of the parties (1 Anderson, Declaratory Judgments, 65), and that litigants cannot confer jurisdiction on the Court (Miller v. Miller, 154 Oh St 530), it appears that the theory upon which this rule is based is that mere general contentions between parties which have not formulated themselves into a definite and concrete controversy should not warrant a Court in giving declaratory relief.

However, there seems to be authority for the proposition that the general rule requiring a justiciable controversy is relaxed where public interest is involved. Anderson, Declaratory Judgments, Vol. 3 (2d), par. 63. Vonherberg v. City of Seattle, 20 Fed. (2d) 247. State v. Board of Education, 52 Pac (2d) 141, Supreme Court of Idaho.

Although the Court has been unable to find any precedent in Ohio in which the general rule has been relaxed by virtue of great public interest, it seems that the soundness of such a rule is beyond question and should be incorporated in the jurisprudence of this state.

There is also some authority to the effect that, by virtue of the admission by the defendant that a controversy exists and its prayer for affirmative relief seeking a declaratory judgment in its cross-petition, it is, therefore, prevented from denying the existence of a justiciable controversy. See Anderson on Declaratory Judgment (2d Ed.) Vol 1, par. 315. Progressive Party v. Flynn, 400 Ill. 102 (Supreme Court of Illinois 1948); 79 N. E. (2d) 516.

Syllabus 4:

“The filing of a counterclaim by defendants in declaratory judgment action, asking for a declaration of defendants’ rights on some statute involved in plaintiffs’ application, was an admission by defendants that an actual controversy was involved as required by act dealing with declaratory judgments.”

There is a further compelling reason for the adoption of the foregoing proposition of law. There is a clearly evinced legislative intent found in the statutes of this state that the declaratory judgment act be liberally construed.

“Sec. 2721.13 K. C. Construction.
“Secs. 2721.61 to 2721.15, inclusive, R. C., are remedial, and shall be liberally construed and administered.”
“Sec. 2721.14 R. C. Interpretation.
“Secs. 2721.01 to 2721.15, inclusive, R. C., shall be so interpreted and construed as to effectuate their general purpose to make the law of this state uniform with the law of those states which enact similar sections, and to harmonize, as far as possible, with federal laws and regulations on the subject of declaratory judgments and decrees.”

Judicial recognition of this fact is also found in Coshocton Real Estate Co., Appellee, v. Smith et al, Appellants, 147 Oh St 45.

Where the facts indicate an issue to be to some extent potential and anticipatory but at the same time both vivid and imminent, it cannot be said to be non-existent to the extent that a Court is unable to apply the transquilizing effect of a declaratory judgment especially where public health and safety demand a barrier against its recrudescence.

Under the circumstances existing in this case wherein the Village of Lakeville is about to construct a water works, and the City of Conneaut is now furnishing water to part of the Village through the water lines and mains in question, it would appear that it would be vitally necessary and proper that a judicial determination be made of the ownership of these lines as between the two political subdivisions.

In discussing the evidence, it should be pointed out that the contention of the plaintiff, the Village of Lakeville, is chiefly of a negative character.

In the plaintiff’s brief, under the title, “Ownership of Water Mains and Lines within the Corporate Limits of the plaintiff, the Village of Lakeville,” it is stated as follows:

“It is respectfully submitted that there is no ownership in the defendant, the City of Conneaut, in any of the water mains or lines within the corporate limits of the plaintiff, the Village of Lakeville.”

Almost the entire written and oral arguments advanced by the plaintiff are to the effect that the City of Conneaut has no ownership. Nothing can be found therein advocating the ownership of the Village of Lakeville save and except, perhaps, that it is stated the water lines are in the streets of that village.

It is claimed by the Village of Lakeville that the City of Conneaut does not own the water lines constructed by the Conneaut Water Company for the reason that in the warranty deed from the company to the City of Conneaut in 1921, the assets conveyed are described as of the Conneaut Water Company in the City of Conneaut. It appears that this contention is not well founded for a number of reasons.

The original franchise given the Conneaut Water Company in 1910 contains an option in favor of the City of Conneaut to purchase all of the company as a unit. Subsequent ordinances authorizing the purchase of the plant have an indicated purpose of buying all the real and personal property owned by the Conneaut Water Company.

The minutes of the meeting of the Board of Directors and shareholders of the Conneaut Water Company indicate a clear intention to convey to the City of Conneaut all assets except certain exclusions which do not include these water mains. This conclusion is further strengthened by the same minutes in which the officers were instructed to take such legal action as might be necessary to wind up the affairs of the company following the completion of the sale of its plant and property to the City of Conneaut.

To say that the company did not intend to convey all its assets to the City of Conneaut would be attributing irrational and absurd corporate action to the Conneaut Water Company which is entirely unwarranted by the evidence.

The Court, therefore, is of the opinion that the language used in the deed was merely for the purpose of identifying the seller and cannot reasonably be construed as a limitation on the assets disposed of by the company.

Subsequent to the purchase, the city has exercised continuous possession, control, and maintenance over these particular lines.

Even naked possession, which is the lowest and most imperfect degree of title, is good against anyone not having a better title. It is an indicia ownership, and there is a rebuttable presumption that one in possession of the property is rightly in possession. Mielke et al, Appellants v. Leeberson, Appellee, 150 Oh St 533.

Possession, particularly for a long period of time, raises a prima facie presumption of ownership. 32 O. Jur. 637; 42 A. J. 218; Oklahoma Railway Co. v. The City of Guthrie, 52 Pac. (2d) 18.

While a perfect title might entail the possessor having all the incidents of ownership, a perfectly legal title may result from less under particular circumstances, and the unchallenged possession and control of personal property is sufficient in the absence of any evidence to the contrary, especially when the record is devoid of any use, control over, or possession, or any other evidence of ownership in another, and when the evidence so clearly shows no tortious acquisition by the City of Con-neaut depriving any lawful owner of the title.

In view of the foregoing, the Court is of the opinion that the City of Conneaut is the owner of the water lines constructed in Lakeville Township, now Lakeville Village, by the Conneaut Water Company.

The second problem to be met is the ownership of lines constructed by the City of Conneaut with the financial assistance of the United States Government. In this category, there are two major water mains, and a relocation and replacement by the city within the Village of Lakeville.

The Lake Road main was a C. W. A. Project with the City of Con-neaut, as a sponsoring agency, paying material costs in the sum of $9,557.00, and the C. W. A. the sum of $2,303.16.

The main on U. S. Route 20 west, is partly in the City of Conneaut, by virtue of annexation, and a part still in the Village. This was a W. P. A. Project with the city acting as the sponsoring agency.

The main on U. S. Route 20 east, was also a W. P. A. Project in which the city obligated itself to pay 80% of the cost of all materials and under which the city furnished the majority of the pipe installed, and the W. P. A. the balance.

These facts are recited for the purpose of establishing the fact that the City of Conneaut made very substantial contributions to these projects.

It was the declared intent and purpose of the Congress of the United States, in passing various emergency relief acts, to reduce and relieve unemployment. See Joint Resolution of June 29, 1937 c. 401; 50 U. S. Statutes, 352; 15 U. S. C. A. Sections 721-728; Title 45, C. P. R., Public Welfare, Chapter III, Section 391.21.

Since it was the primary purpose of these relief acts to furnish work to the unemployed, the construction of improvements, such as water lines, was secondary and but a means of carrying out the primary purpose.

For the reason that this exercise of police power by the Federal Government was not for the purpose of providing any direct benefit to Lakeville Township, but rather for the purpose of relieving unemployment in the area, the ownership of these water lines must be declared, after the completed installation, the property of the sponsoring agency, that is, the City of Conneaut, Ohio. See United States v. City of Columbus, 54 F. Supp. 37.

The third question, as to the ownership of privately constructed lines, presents a more difficult problem. The Court is of the opinion that if it could rationally be done, the ownership of these lines should be determined in this controversy.

However, any suggestion that persons could be bound by a judgment in a proceeding to which they were not parties, would encounter constitutional objection. Legal interest is a criterion of joinder as a necessary party.

The Supreme Court of the United States has defined an indispensable party as one who not only has an interest in the controversy, but an interest of such a nature that a final decree cannot be made without affecting that interest. Shields v. Barrow, 17 Howard 130, 136 (1854).

Sec. 2721.12 R. C., provides as follows:

“When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration. No declaration shall prejudice the rights of persons not parties to the proceeding. * * *”

While it is an elementary principle of law that possession is prima facie evidence of title, the fact that these lines were constructed by private individuals is a fact which, in itself, is sufficient to rebut the prima facie presumption.

, This case would be eminently suitable for the application of a rule which would give the Court the right, without the application of either party, to order the names of any persons who ought to have been joined, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the cause, be added as either plaintiff or defendant.

This is the modern way for enforcing the sound principle that the Court should make the performance of the judgment perfectly safe for all concerned and prevent the chance of further litigation. Such a provision exists in some jurisdictions, and its desirability is well pointed out in the case of Victoria v. Commonwealth, 39 C. L. R. 399. In the High Court of Australia.

Since this procedure, under the declaratory judgment act, is entirely statutory, in the absence of such a provision in the Ohio statutes, the Court is powerless to add additional parties in this case and is, therefore, unable to determine the ownership of the lines in question which were installed by private individuals.

In the interest of clarity, it should be added that in instances where lines were privately constructed, and later relocated by the Conneaut City Water Works, a finding is hereby made that the title, in such instances, is in the City of Conneaut.

The remaining question to be determined is the franchise rights of the City of Conneaut to control, maintain, and operate the present water lines within the Village of Lakeville. That a justiciable controversy exists in this case, in respect to this question, has been challenged.

An examination of the authorities shows a wide variety of precedent. See Corpus Juris Secundum, Vol. 37, page 164; also Corpus Juris Secun-dum, Vol. 31, Sections 138-147.

A labored analysis of these decisions would be of little purpose. Suffice it to say that a recondite consideration of the issue dispels the perfunctory conclusion that there exists essential diversity of thought. These cases merely reveal the elasticity and accommodating virtue of the law and lead to the manifest conclusion that they are based on a recognition of an old axiom, “The supreme law is the welfare of the people.” As a result, under varied factual situations, the sovereignty of the state and its subdivisions has been infringed upon to some extent in applying estoppel.

Some of the cases seem to draw a distinction in this regard between governmental and proprietary functions. Even in such cases, the differences seem to be more factual than basic. At least there is ample authority wherein proprietary functions are affected by estoppel. See Corpus Juris Secundum, Vol. 31, page 416, and the cases cited therein.

The Supreme Court of Ohio has, at least in one instance, recognized the doctrine that equitable estoppel may be asserted against a municipal corporation. City of Mt. Vernon v. State, 71 Oh St 428 (1905). It would also seem that the rule would be more compelled when both parties are political subdivisions.

It would perhaps be well to consider the plaintiff’s position that no franchise rights exist and the reasons advanced.

A municipality in Ohio is granted express and self-executing authority by the constitution to sell and deliver to others outside the municipality the surplus product of any utility. Article XVIII, Section 6.

A franchise was granted in 1909 to the Conneaut Water Company, the pertinent part of which reads as follows:

“SECTION I: THAT, THE CONNEAUT WATER COMPANY, its successors or assigns, is hereby granted the right for and during the term of twenty years from the date of this agreement to maintain and operate water works in that part of the Township of Conneaut or any village or city which may hereafter be created by organization, consolidation or otherwise, to supply such township and the inhabitants thereof in said vicinity with water for public and private purposes, and to use within the present or future limits of such township the streets, roads, alleys and other public ways for the purpose of laying, taking up and repairing mains, pipes, hydrants and other appurtenances.”

Although the express franchise expired in 1929, the City of Con-neaut, successor to the Conneaut Water Works, has continued to furnish water to what was formerly the township, and now the Village of Lake-ville, through water lines in the village and undertaken new construction and relocations uninterruptedly for a period of 35 years.

That the township and village has given tacit recognition to the continuance of this franchise is shown by the fact that the village has paid to the city water hydrant rentals and executed new rate schedules, and the latest contract entered into in 1937 between the City of Con-neaut and the township is, at the present time, still in effect.

At no time has the township or village taken any action indicating a disavowal of its intention to recognize an indefinite continuance of the franchise rights of the City of Conneaut. Part of the residents of the Village of Lakeville are dependent upon the service furnished by the City of Conneaut, and any peremptory severance of this service and the resulting loss of water supply would indeed be catastrophic to those residents of Lakeville depending upon this service.

A number of cases have been cited by the plaintiff in support of its contention that a continuing franchise does not exist. It has been decided that these cases, dealing with problems of ouster under various circumstances, are unauthoriiative in respect to the facts existing in this case.

The plaintiff also offers Ellis Ohio Municipal Code, page 39, Sec. 1.55, in which the following language is used on page 40:

“Following the reasoning in the Indian Hill Acres Case, the Court of Appeals for Hamilton County has, in several unreported decisions, ruled that a municipality may discontinue water service to consumers in areas outside of the municipality with or without cause, if there is no contract for service.”

Upon an examination of State, ex rel., Indian Hill Acres v. Kellogg, City Manager, 149 Oh St 461, this conclusion of the author cannot be justified. This case involved the obligation of a municipal utility to extend its lines outside of the municipality rather than to continue service to an area already served.

There is ample authority supporting the proposition that where a public utility continues to furnish service after the expiration of its express franchise, and its services are accepted, that there is an assumed quasi public service requiring it to continue to supply adequate service within its reasonable capacity to do so, and that there continues an implied contract between the parties.

12 McQuillin, Municipal Corporations, 178; Iowa City v. Iowa City Light and Power Company, 90 Fed. (2d) 679; Denver v. Denver Union Water Company, 246 U. S. 178; Hill v. Elizabeth City, 298 Fed. 67; Pittsburgh v. Cochrane, 159 Pac. (2d) 534.

The underlying necessity of requiring municipal corporations, when operating water lines beyond its corporate limits where necessary for service, accommodation, and convenience of the public, has received legislative recognition in some states. See Purdon’s Statutes (Penna.) Vol. 53, Sec. 12198-3531 (as amended 1951), in which such extra-territorial service has been subject to regulation and contral by the Public Service Commission.

Applying the consequences of the foregoing observations to the situation here existing, wherein the public weal speaks so loudly in favor of the invocation of equitable estoppel, the Court finds that the City of Conneaut has acquired a franchise of indefinite duration to use, operate, and control the water lines owned by it in the Village of Lakeville; that the City of Conneaut is obliged to continue to serve the residents of the Village of Lakeville for an indefinite period having due regard for its capacity to do so, and that the franchise herein defined is not terminable at will by either the City of Conneaut or the Village of Lake-ville but only upon reasonable notice by either municipality and at such time and under such circumstances as may be consistent with the duty both owe to the residents of the affected area.

Counsel may prepare a journal entry in accordance with the foregoing.


author: By FESS, J.

text:
    STATE, ex rel. ALLIED WHEEL PRODUCTS, INC., Relator, v. INDUSTRIAL COMMISSION OF OHIO, Respondents.
    Ohio Appeals, Second District, Franklin County.
    No. 5139.
    Decided February 16, 1956.

      Cobourn, Yager, Notnagel, Smith & Beck, Fred A. Smith, Robert A. Strickling, Vernon E. Rohrbacher, of Counsel, Toledo, for relator.
    C. William O’Neill, Atty Geni., James L. Young, John R. Barrett. Asst. Attys. Geni., Columbus, for respondents.
    (FESS, J, of the Sixth District, sitting by designation in the Second District.)
   OPINION

By FESS, J.

This is an original action in mandamus seeking to compel the respondents to vacate an order granting an employe’s application for an additional award of compensation in an amount equal to 50% of his maximum weekly rate, against relator for violation of a specific requirement.

On January 9, 1954, the Supreme Court denied relator’s petition asking for identical relief, without passing upon the merits. State, ex rel. v. Industrial Commission, 161 Oh St 555.

Relator’s right to relief is to be determined upon the pleadings, stipulation of the parties and the record of the proceedings before the Commission.

Claimant was injured September 12, 1950, and received compensation for disability. On September 30, 1951, she filed her application for an additional award, alleging that her hand was pulled into the belt and cogwheels of an unguarded lathe, as a result of which she sustained her injury. She further alleged that her employer violated the following specific requirements causing her injury:

“By permitting guard to be removed from lathe and to be unprotected in violation of Section 7, Chapter 2, page 15 of the Bulletin of the Industrial Commission * * * in that horizontal belt and pulleys 6 feet or less above floor was unguarded, and in violation of Section 10 of said Chapter and Bulletin relating to gears and sprockets.”

On December 22, 1952, the Commission indicated that it would not allow the claim because the cited specific requirements were not effective until January 1, 1951, after the injury was sustained. But leave was granted claimant to cite any other requirement which she might claim was violated. Pursuant to such leave, on December 23, 1952, in a letter to the Commission, claimant asserted for the first time a violation of Section 7, Bulletin 203 of the Code of Specific Requirements, effective as of January 1, 1924. Relator objected to the action of the Commission in allowing the amendment to the claim on the ground that the amended claim was not filed within two years after the injury, as required by §1462-72(a) GC (§4123.84 R. C.). Rule I, with respect to the filing of claims for an additional award, provides in substance that an application for an additional award must be filed within two years of the injury on forms prescribed by the Commission “setting forth the facts which are the basis of the alleged violation, and the section or sections of the law or code of specific requirements applicable.” In her application, the claimant set forth the facts constituting the basis of the alleged violation, but cited no applicable code. The requirements made in Section 10 of Bulletin 203, effective January 1, 1951, are substantially identical with those made in Section 7 of Bulletin 203, effective January 1, 1924.

In our opinion the amendment did not so substantially change the claim as to amount to a new claim filed more than two years after the injury. In allowing the amendment and in proceeding to hear the claim as amended, the Commission did not abuse its discretion.

The amendment allowed in the instant case is to be distinguished from that involved in State, ex rel. DeBoe v. Industrial Commission. 161 Oh St 67. In the DeBoe case, the Commission found that the specific requirement designated in the application had not been violated, and then the claimant for the first time claimed a violation of another and different safety requirement.

Relator further asserts that respondent’s rule with respect to notice and hearing upon the amended application was not complied with: also that the record does not show any violation of any specific requirement. In this proceeding, it is incumbent upon the relator to show that the action of the respondents amounts to an abuse of discretion. State, ex rel. Stuber v. Industrial Commission, 127 Oh St 325; State, ex rel. Berry v. Industrial Commission, 129 Oh St 228. Upon consideration of the entire record, there is evidence upon which the Commission’s finding may properly rest, and in this circumstance, the determination of the Commission is final and we can not find an abuse of discretion. State, ex rel. Howard Eng., etc., v. Industrial Commission, 148 Oh St 165; State v. Ohio Stove Co.. 154 Oh St 27.

Finally, relator contends that the award of the maximum amount,— 50%, is excessive and constitutes a gross abuse of discretion. Under Article II, Section 35. Oliio Constitution, the Commission may make an additional award “such amount as shall be found to be just, not greater than fifty nor less than fifteen percentum of the maximum award established by law,” etc.

The phrase “maximum award” means the maximum amount per week which the Commission may award the injured workman. State, ex rel. Engie v. Industrial Commission, 142 Oh St 425, 437. In fixing the amount, the Commission exercises broad discretion in determining what is just. We can not say that the Commission abused its discretion in awarding the claimant the maximum amount.

Having failed to show a clear right to relief, the writ is denied and the petition is dismissed at relator’s costs.

MILLER, PJ, HORNBECK, J, concur.


author: By BARTLETT, J.

text:
    ABRAMS, Plaintiff, v. CLARK, Defendant.
    Common Pleas Court, Franklin County.
    No. 191072.
    Decided February 6, 1957.
    Joseph J. VanHeyde, Joseph F. Carr, for plaintiff,
    Hamilton & Kramer, for defendant.

      For further history see Omnibus; Index in bound volume.
   OPINION

By BARTLETT, J.

MOTION OF PLAINTIFF FOR LEAVE TO FILE AN AMENDED PETITION OVERRULED IN PART AND SUSTAINED IN PART.

Motion by plaintiff for leave to file an amended petition by amendments as follows:

I. By adding the words, “due to his intoxicated state at the time,” on to specification of negligence No. 2 of the petition, which avers:

“(2) in failing to have the automobile he was driving under control.”

Leave to so amend is denied. Specification No. 2 in its present form is sufficient. Harris v. Webb, 22 N. P. (n. s.) 359, 360; Ballenger v. Sheward et al., No. 169,803, and Berry v. Jackson, No. 183,511, Dockets of this court. The words sought to be added are evidential as such and should not be pleaded. Plaintiff does not seek to add a new specification of negligence based upon the words sought to be added.

II. Ey changing the averment of special medical damages from $50.00 to $466.00. Leave to so amend granted. Such change not essential, but not prejudicial. The present recital in the petition sufficiently apprises defendant that medical bills are to be claimed and thus prevents surprise at the trial which is the sole purpose of the rule that such special damages of medical bills, etc., must be pleaded. The courts hold that the jury may give damages for medical services still to be rendered. Toledo Elect. St. Ry. Co. v. Tucker, 13 O. C. C. 411; Cincinnati Traction Co. v. Smith, 14 Oh Ap 380, 392; 13 O. Jur. Damages, pp, 260-268; 25 C. J. S. Sec. 139, damages, p. 777.

III. Leave to amend prayer of petition from $5050.00 to $10,466.00. granted.

“A mere change in the amount sought to be recovered to correct a mistake in the original petition does not constitute departure.” Holland Furnace Co. v. Stevenson, 9 Abs 48 (Court of Appeals of Mahoning County); Alliance Ins. Co. v. Porris, 2 Abs 589; 34 Am. Jur. Limitation of Actions, Sec. 265, p. 218; 54 C. J. S. Limitations of Actions, Sec. 282, p. 340; 17 West’s Ohio Digest, Limitation of Actions, Sec. 127 (2), p 233.

IV. Leave to amend endorsement on the summons, by increasing the amount claimed, to accord with the amendment of prayer of petition, is denied.

“Courts have inherent power to amend process as to formal defects and clerical errors, but cannot, without statutory authority, amend process in substantial particulars.” 32 O. Jur., Process, Sec. 112, p. 513, citing 21 Ruling Case Law, Process; To same effect, 42 Am. Jur.. Process, Sec. 20, p. 21.
“A writ may be amended by * * * increasing the amount of damages asked for.” 72 C. J. S., Process, p. 1179, citing only Laxton v. Hay, 211 Mass. 463.
“1. Where a court exceeds its jurisdiction by rendering judgment for an amount greater than that endorsed on the summons, the error can not be cured by a remittitur.” (Emphasis ours.) American Audit Co. v. Miller, 11 O. C. C. (N. S.) 368;
“1. A judgment for a sum greater than the amount due upon the cause of action as stated in the record is erroneous; and the previous consent of the parties that such judgment might be rendered does not cure the error.” Rosebrough v. Ansley et al, 35 Oh St 107.
“2. Where the jurisdiction of the person is dependent upon the language of a pleading, the pleading will be construed strictly and its scope will not be extended beyond its clear expression.” (Emphasis ours.) Ohio Electric Ry. Co. v. U. S. Express Co., 105 Oh St 331.
“3. Where time is of the essence of an act, court cannot by amendment avoid effect of statute prescribing time limit.” Mullins et al. v. Webb et al, 25 Oh Ap 352.

On page 355 of his opinion in the foregoing case, Mauck, J., in referring to §11363 GC giving the court power to amend process, says:

“There is, however, of necessity, some limit to the power.”
“In the opinion of the Court, an amended petition increasing the prayer requires a new summons before the amended petition can be considered as an effective superseding of the original petition.” Harter, J, in case of Andrew v. Slark Trucking Co., No. 186,946, dockets of this court, wherein Harter, J., sustained a demurrer to the amended petition, based on the statute of limitations.
“At the end of plaintiff’s case, plaintiff asked leave to amend his petition by increasing the amount claimed. An amendment of this nature could not be made without new service being had and a continuance granted. The amendment was properly denied.” Wiseman, J., in his opinion for the court, Kleinhaus v. American Gauge Co. et al, 83 Oh Ap 453, 456.

In view of the authorities herein cited, the Court is constrained to and does deny leave to amend the endorsement on the summons, by increasing the amount claimed.


author: By PHILLIPS, PJ.

text:
    MODARELLI, Plaintiff-Appellee, v. ANTONUCCI, Defendant-Appellant.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3797.
    Decided October 6, 1955.
    Frank J. Eattisti, Youngstown, for plaintiff-appellee.
    D. F. Rendinell, Youngstown, for defendant-appellant.
   OPINION

By PHILLIPS, PJ.

Defendant appealed to this court on questions of law and fact from a judgment of the court of common pleas entered upon a jury verdict of $2500.00 returned for plaintiff in his action against defendant to recover $1000.00 exemplary and $5,000.00 punitive damages for personal injuries sustained allegedly as the result of an assault made upon him by defendant.

Since the appeal was improperly perfected as one on questions of law and fact the words “and fact” were stricken from defendant’s notice of appeal, and it appearing that a bill of exceptions was duly filed the appeal was submitted, argued, retained, and will be determined as one on questions of law.

On November 27, 1953, the receiver of the Logan Square Electric Company in Youngstown, Ohio, a corporation owned by defendant and his two sons, called plaintiff (who had a hardware store) by telephone to come to the Logan Square Electric Company to discuss with him accounts receivable, which defendant claimed plaintiff owed to the corporation.

Defendant interrupted the conversation between the plaintiff and the receiver several times, during which conversation subsequently and without warning defendant struck and beat plaintiff about the face in the presence of five people. Plaintiff offered no resistance. Apparently dissatisfied with his ability with his fists, defendant went to the rear of the building in which they were conversing, seized an iron pipe and ran toward plaintiff in a threatening manner chasing him from the building.

Medical examination of plaintiff disclosed several lacerations of his lip, a two inch laceration of the right lower chin, a three inch laceration of his cheek, a sprain of the right mandibular joint, a loosening of his teeth, and injury in the right temporal region causing pressure in that region which lasted about five months. From these injuries and the beating that caused them plaintiff suffered headache, nausea, vomiting and shock causing him to be absent from his work (where he earned $23.00 a day) for more than a week, and causing him great physical pain and mental anguish, humiliation, and small medical expense.

Defendant admitted to a Youngstown city policeman called to quiet the disturbance that he struck and beat plaintiff; that plaintiff offered no resistance; and that if the patrolman had not interferred he would have administered a more severe beating to plaintiff.

While not pleading self defense defendant testified he took plaintiff by the arm and said he wanted to discuss business matters with him; that plaintiff struck his hand, knocked it off his arm onto a hot water heater, as a result of which he testified it was injured, and that then he slapped plaintiff in the face.

Defendant makes much of the fact notwithstanding evidence that defendant struck plaintiff in the face; that plaintiff was unable to remember whether defendant struck him once or more than once; and that there was no “clear evidence by any witness as to whether the blow was with the open hand or with a fist.” We are not impressed with these contentions under the conflicting evidence in the trial court.

Defendant contends that the trial judge erred to his prejudice in admitting evidence, over his objection, that plaintiff had defendant arrested in the Municipal Court of Youngstown for assault and battery, without permitting defendant to introduce evidence that he was acquitted of such charge, on the theory plaintiff “opened the door and incited the passion and prejudice of the jury with talk of a criminal charge, then with the court’s aid, slammed the door shut to prevent letting the jury know appellant was found not guilty”; that “once such inflaming testimony is permitted over objection,” that “an opponent may reply with countering evidence whenever it is needed for removing an unfair prejudice which might otherwise have ensued from the original evidence”; and that the trial judge also erred to defendant’s prejudice in permitting the introduction of evidence on cross-examination of defendant of other fights in which he was engaged.

Under this assigned ground of error defendant contends that the trial judge erred to his prejudice in admitting his testimony concerning immediately after he ran from the building where he was assaulted when plaintiff swore out a warrant for defendant’s arrest in the Municipal Court of Youngstown. The evidence in respect thereto is as follows:—

“Q. Now thereafter did you leave the premises — well, you did leave the premises on East Rayen?
“A. Yes.
“Q. Where did you go?
“A. I talked to the policeman who was leaving and I told him about—
“Court: No, the question is where did you go?
“A. I went down to file a warrant or something on that order.
“Q. You came to my office first, did you not?
“Mr. Rendinell: Mr. Battisti, I object to that statement.
“Court: I think that is all right, he may answer. Did you go to Mr. Battisti’s office?
“A. Yes sir.”

Now it is argued by defendant, we believe without force, that by objecting plaintiff opened the door, and that the court erred to defendant’s prejudice by rejecting evidence of the outcome of the trial in the Municipal Court, notwithstanding counsel for plaintiff did not refer to the warrant again until it was gone into again extensively by defendant.

As we understand defendant’s argument it is his contention that counsel’s statement “you came to my office first, did you not” and defendant’s answer to another question “I went down to file a warrant or something on that order” were inflammatory. While defendant objected to counsel’s statement, which the trial judge ruled, we believe correctly, was not objectionable, there is no evidence that defendant objected to defendant’s answer nor asked to have it stricken from the record. We conclude that even though the answer was objectionable, which viewing the matter as we do we need not determine, defendant waived any claimed error by not registering his objection, which as suggested by counsel for the plaintiff “he cannot save (his objections) until after the verdict is returned.”

We find no error prejudicial to the defendant in any of the respects urged in this assigned ground of error.

Defendant claims “that the court erred in his charge to the jury over appellant’s objection and to his prejudice” because:—

“While there was no plea by appellant of self-defense, nonetheless his evidence was to the effect that he was struck first and provoked (R. 109). This evidence was first ignored and then confounded by the learned trial judge in his charge. The court’s charge (R. 127) first tells the jury it must find as a matter of fact that appellee, plaintiff below, must support his burden of proof of an, presumably ‘unwarranted,’ assault and battery before it can go on to assess his damage. Yet, a few pages later, at R. 132 the court relieves the jury of the duty to so find the pivotal fact and, in effect but without properly saying so, directs a verdict for liability and proof. The court there charged ‘there cannot be a verdict for defendant in this case.’ ”

Further defendant urges that the trial judge erred to his prejudice in his charge:—

“* * * in not at the first instance instructing the jury to separate its findings as to compensatory and punitive damage and, in the second, in not requiring the jury to correct its verdict when rendered before entering judgment thereon.”

As a result of a careful study of the evidence and the law applicable thereto we cannot concur in defendant’s contention that the trial judge erred to his prejudice in the respect urged first in the assigned ground of error under discussion.

The case of Chesapeake & Ohio Ry. Co. v. Johns, 155 Ky. 264, 159 S. W. 822, 50 L. R. A. (n. s.) 853, answers his second contention with respect to prejudicial error in the general charge of the trial judge, in which case it is said:—

“Appellant made no request on the trial for the separation in the verdict of the punitive from the compensatory damages but now insists it was the duty of the court to have required this of the jury without such request, * * *. Appellant had a right to have these damages separated in the verdict, but it waived that right by its failure to ask that it be done.”

In our opinion the trial judge carefully and correctly defined these two types of damages.

Now defendant claims that the verdict of the jury “is an improper verdict because it is uncertain, unclear, unintelligible and inconsistent” for the reason that “the petition asks $1,000.00 compensatory damages and $5,000.00 punitive damages” and the verdict was for $2500.00; that in such a situation “without a separation and allocation of punitive and compensatory damages, how can appellant know where he stands?”

Defendant further claims by brief:—

“Limited to $1,000.00 by his prayer for compensatory damage, which appellant urges is an amount beyond reason, the jury would have rendered an excessive verdict if it thought it was allowing $1,000.00 of the $2,500.00 as such. If the jury meant to award nominal damages only, such as $1.00, for compensatory damages, then the punitive damages are outrageously disproportionate. See 4 Am. Jur. Sec. 193 at page 220 wherein it is said that the amount of exemplary damages that may be awarded depends on the facts of each case and is largely a matter within the discretion of the jury. The award, however, must bear some reasonable proportion to the amount of compensatory damages; and where the actual damages are found to be substantial, an award of punitive damages for 10 times that amount will not be sustained.
“Bringing this statement into sharp local focus, let us suppose, that on a medical bill of $36.00 and some ‘scratches’ treated with mercur-ochrome, the jury meant to award $250.00. (Of course, we can’t tell what they meant. Their improper verdict didn’t separate the two.) Such an amount would certainly be substantial under the evidence. Then, a verdict of $2500.00 would be ten times the substantial compensatory damage and would have to fall.”
Defendant further claims that “this way appellant is left handcuffed, wondering and amazed.”
Phrasing his claim differently defendant claims that “the verdict is frail, invalid and fraught with impropriety and that the excessiveness was obviously due to error in permitting testimony of a criminal prosecution without allowing curative evidence of acquittal, thus inflaming the passion and prejudice of the jury. Of the same effect were the improperly permitted questions on cross-examination relating to other fights in which appellant might have engaged.”
This court reviewing the proceedings of the trial court is unable to segregate by computation the two items of damages, namely punitive damages and exemplary damages, but it clearly appears that the verdict of $2500.00 was excessive.
Further defendant claims by assignment of error that the damages were excessive and were given under the influence of passion and prejudice.”

Reviewing all the evidence carefully, as we have done, we believe that the verdict of the jury is excessive to the extent of $1,000.00, but that the verdict was not rendered by the jury under the influence of passion and prejudice.

In our opinion, except as noted elsewhere herein, the trial judge committed no error prejudicial to defendant in any of the respects urged by the defendant in his assigned grounds of error that the verdict of the jury is “uncertain, unclear, unintelligible and inconsistent”; nor that “it is frail, invalid and frought with impropriety” and “is not sustained by sufficient evidence, and is contrary to the manifest weight thereof.”

This is an action in tort for unliquidated damages, and, as suggested, the only error we find is that the verdict is excessive.

Having reach the conclusion announced with reference to the excessiveness of the verdict of the jury the verdict is reduced by remit-titur of all of the amount thereof in excess of $1500.00. If such remittitur is accepted by the plaintiff within thirty days from the date of the entry placed upon the docket (not journal) of this court the judgment of the court of common pleas is affirmed, otherwise a new trial is granted on the ground that the verdict of the jury is excessive and this without regard to the consent of the defendant-appellant.

NICHOLS, J, concurs in judgment.

GRIFFITH, J, concurs.


author: By MILLER, PJ.

text:
    WASHINGTON COURT HOUSE (City), Plaintiff-Appellee, v. CARSON, Defendant-Appellant.
    Ohio Appeals, Second District, Fayette County.
    No. 280.
    Decided November 2, 1956.
    William M. Junk, City Solicitor, Washington C. H., for plaintiff-appellee.
    J. Harvey Crow, Urbana, for defendant-appellant.
   OPINION

By MILLER, PJ.

This is a law appeal from a judgment of the Municipal Court of Washington Court House, rendered upon the verdict of a jury, finding the defendant guilty of operating a motor vehicle upon the public streets of Washington C. H. while under the influence of intoxicating liquor in violation of ordinance No. 506 A of said city.

The record reveals that on November 3, 1954 an affidavit was filed in said court charging the defendant with the offense of operating a motor vehicle on the public streets of said city while under the influence of intoxicating liquor; that a plea of not guilty was entered; that a jury trial was had which resulted in failure to reach a verdict, and for this reason the jury was discharged.

It appears that during the course of the trial the defendant moved for a dismissal of the action because of the insufficiency of the affidavit. This motion was overruled at the time and the trial proceeded. However, it appears that after further consideration and before assigning the case for retrial the court made the following entry of dismissal on March 18, 1955, to wit: “Upon application of the City of Washington this case is hereby ordered dismissed without prejudice to a future action.” Thereupon, a new affidavit charging the same offense was filed in the same Municipal Court. A motion to dismiss this affidavit was then filed for the alleged reason that the defendant had been placed in jeopardy under the prior affidavit and that to proceed further under the second affidavit would constitute double jeopardy which is prohibited by both federal and state Constitutions. The Court in overruling the motion to dismiss stated in its opinion, which is made a part of the record in this case, “The defendant cannot well contest at this stage that the original affidavit was good and sufficient, since she, through her counsel, first raised the question of the sufficiency at the conclusion of plaintiff’s testimony at the trial.”

Furthermore, it is noted that the Superior Court of Ohio in the case cited by defendant in support of her contention (42 Oh St 383), stated the rule that the accused is once in jeopardy when the plea is interposed to a valid indictment. (Emphasis ours.) The evidence produced before the court on this motion does not appear in the record, but from the foregoing statement it is clear that the trial judge found that the first affidavit was insufficient to state an offense; hence it was a void affidavit and the defendant was never in jeopardy under it. See City of Columbus v. Jackson, 93 Oh Ap 516, decided by this court on October 6, 1952. The procedure adopted in this case was in accordance with our ruling in Columbus v. Jackson, supra. We so held even when the defendant had entered a plea of guilty to the affidavit. In re Van Hoose, 61 Abs 255.

We find further support for our conclusion in 12 O. Jur. 198, Section 161, wherein it is said:

“In order that an accused may avail himself of the constitutional guaranty that ‘no person shall be twice put in jeopardy for the same offense,’ it is necessary that he should have been put on trial on an indictment or information good and sufficient as to form and substance, which would have warranted a conviction, if the criminal act had been proved. It may be stated as the general rule that where an indictment is quashed at the instance of the defendant, though after jeopardy has attached, he cannot thereafter plead former jeopardy when placed on trial on another indictment for the same offense.
“Hence, if the affidavit charging an offense is bad for uncertainty, the defendant is not thereby placed in jeopardy because no conviction could be sustained upon it.”

We have examined the errors complained of and find none of them well made. Among these the appellant complains that the court did not charge fully on the term “under the influence of intoxicating liquor.” We find no error in the court’s definition of this term, and if it was not complete as urged, it was an error of omission and not of commission; therefore, it could not be prejudicial. See 39 O. Jur. 1096, Sec. 297.

Finding no error in the record, the judgment will be affirmed.

HORNBECK and WISEMAN, JJ, concur.


author: By PHILLIPS, J.

text:
    STATE, ex rel. CITY ASPHALT & PAVING COMPANY, Relator-Appellee, v. CAMPBELL (City), Respondents-Appellants.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3660.
    Decided November 18, 1954.
    Manchester, Bennett, Powers & Ullman, Youngstown, for relator-appellee.
    Paul Van Such, Youngstown, for respondents-appellants.
   OPINION

By PHILLIPS, J.

In relator’s action in mandamus filed in the court of common pleas a judge of that court ordered respondent Glass, Auditor of Respondent City of Campbell, to issue and deliver to relator, a corporation, a warrant drawn on respondent, Kraynak, Treasurer of respondent city, for $6,764.10 for material furnished and for work done by relator for respondent city in accordance with a contract executed by relator and respondent city on the 28th day of October, 1952.

Respondents appealed from that order and judgment to this court on questions of law.

Respondents contend that “the primary question before this court is to determine whether or not” the following certificate of respondent auditor which was attached to the contract, “sufficiently complies with §5705.41 R. C.” (§5625-34 GC). The contract and certificate provides:—

“This contract made and entered into at Campbell, Ohio, on this 28 day of October, 1952 by and between the City of Campbell, Ohio, a Municipal Corporation hereinafter designated as the ‘City’ and the City Asphalt and Paving Company, hereinafter designated as the ‘Contractor.’
“Witnesseth:
“That Whereas, the Council authorized the purchase of 100,000 square yards of Seal Coating for the surface treatment of approximately 100,000 square yards of streets in the City of Campbell by Resolution No. 52-1689; and
“Whereas, the City Asphalt and Paving Company submitted their bid in compliance with said notice, which bid was determined to be the lowest and best bid submitted.
“Now, therefore, in consideration of the terms, conditions, premises and stipulations hereinafter set forth, it is hereby mutually agreed by and between the parties hereto as follows:
“I. The Contractor shall furnish all labor, equipment and materials necessary to accomplish the surface treatment he will directed to accomplish. (Sic)
“II. Said improvement shall be made in accordance with the specifications, therefor, now on file in the office of the Director of Public Safety and Service of said City, said specifications being the same as those set forth in the State of Ohio Department of Highways Construction and Material Specifications, dated January l, 1952, a copy of which is in the possession of the contractor, and all of which are hereby made a part of this contract by reference with the same force and effect as though hereto attached.
“III. Said construction shall be made in good, workmanlike manner, and under the supervision of the City Engineer and the approval of the Director of Public Safety and Service.
“IV. The contractor shall be deemed an independent contractor at all times during the progress and construction of said improvement not withstanding the supervision and inspection thereof by the City Engineer as aforesaid.
“V. The contractor shall exercise all reasonable precautionary measures during the progress of said repairs so as to warn and protect persons and property from injury or damage, and shall reimburse the City and save it harmless from any claims or judgment against it by reason of the Contractor’s failure or neglect to comply with this provision, whether such be the result of the failure or neglect of the Contractor, its agents, servants or employees.
“VI. Upon the completion of said repairs the contractor shall restore the site to the conditions specified so as not to endanger persons, and property, and shall be liable to the city and shall reimburse it in the amount and to the extent that it may be required by just claims and (or) judgments rendered against it in any legal proceedings as the result of said contractor’s failure or refusal to comply with this provision.
“VII. As to material, labor and use of equipment in the repairs of said improvement, the contractor shall comply with the laws of the State of Ohio, relating to Mechanic’s Liens, and shall satisfy the Director of Public Safety and Service as to such compliance before final payment under the provisions of this contract.
“VIII. The city shall pay to said contractor according to the following schedule:
“Single Seal: Labor 10c and material 10c or a total of 20c per square yard.
“Double Seal: Labor 15c and material 15c or a total of 30c per square yard.
“Payment shall be made as follows: The sum of $3,000.00 shall be paid upon the completion of the work undertaken and accepted by the city this year and the balance to be paid in monthly payments, it being understood that the total bill is to be paid in full on or before December 15, 1953, provided, however, that such payments and final payment shall not be deemed or construed as proof that said improvement was repaired in strict compliance with this contract and the specifications therefor, and city hereby reserved the right to recover from said contractor any damage it may or may have sustained for non-compliance herewith.
“IX. In the event that there is extra work to be done in connection with this improvement which work is not covered by this contract, the Engineer will meet with the Contractor and the Director of Public Safety and Service and reach an agreement on the compensation the Contractor is to receive for this work.
“X. Before commencing work under this contract the contractor shall furnish a performance bond and a guarantee for one (1) year to the city in the sum of two thousand ($2,000.00) dollars conditioned upon the faithful performance of all the terms, conditions and provisions of this contract, which bond shall be subject to the approval of the Director of Public Safety and Service.
“In Witness Whereof, the City of Campbell, Ohio, has caused its name to be hereto affixed by its Director of Public Safety and Service duly authorized in the premises, and said City Asphalt and Paving Company has hereunto subscribed its name by Henry Garlick, its V. Pres, at the place and on the day first above written.
“Signed in the Presence of: William Glass Pauline Clement
The City of Campbell, Ohio By John J. DeMart Director of Public Safety and service. City Asphalt and Paving Company Henry Garlick
“The foregoing contract is hereby approved, and the Director of Public Safety and Service is hereby authorized and directed to enter into and execute the same in behalf of the said City of Campbell, Ohio, on this 28 day of October, 1952.
Board of Control of The City of Campbell, Ohio By Michael J. Kovach Mayor
And John J. DeMart Director of Public Safety and Service
“The foregoing contract is hereby approved as to form and legality on this 28 day of October, 1952.
By: Paul R. Van Such City Solicitor
¡S'*** * * * *
AUDITOR’S CERTIFICATE.
“It is hereby certified that the amount of as per appropriation allocation dollars ($_) required to meet the contract agreement, obligation, payment or expenditure, for the above, has been lawfully appropriated or authorized or directed for such purpose and is in the treasury or in process of collection to the credit of the St. Repair Fund free from any obligation or certification now outstanding.
“Dated this 28 day of Oct., 1952.
By William Glass
City Auditor.”

As applicable §5705.41 R. C. provides:—

“No subdivision or taxing unit shall:
“(A) Make any appropriation of money, except as provided in §§5705.01 to 57C5.47, inclusive, R. C.; provided that the authorization of a bond issue shall be deemed to be an appropriation of the proceeds of the same for the purpose for which such bonds were issued, but no expenditure shall be made from any bond fund until first authorized by the taxing authority;
“ (B) Make any expenditures of money unless it has been appropriated as provided in such sections; * *

In our opinion the form and substance of the certificate of respondent auditor meets the requirements of §5705.41 R. C.; and since in the absence of a bill of exceptions we can but assume the truth thereof the judgment of the court of common pleas must be and hereby is affirmed.

GRIFFITH, PJ, NICHOLS, J, concur.


author: By THE COURT:

text:
    MILLER, Plaintiff-Appellant, v. STACY, Defendant-Appellee.
    Ohio Appeals, Second District, Greene County.
    No. 574.
    Decided October 29, 1956.

      Schlafman & Elliott, Fairborn, for plaintiff-appellant.
    Jacobson, Durst, Poliak & Jacobson, Dayton, for defendant-appellee.
   OPINION

By THE COURT:

This is an appeal from a judgment of the Common Pleas Court foi the defendant entered upon a verdict of a jury. Nine errors are assigned:

1. That the verdict of the jury is against the manifest weight of the evidence.

2. The verdict of the jury was contrary to the law.

3. The verdict of the jury was based on prejudice against Rufus Miller.

4. The court erred in overruling Rufus Miller’s motion for judg-notwithstanding the verdict.

5. The court erred in overruling the plaintiff’s motion for a new trial.

6. The court erred in admitting into evidence Defendant’s Exhibits C. D and E, over objection of counsel for plaintiff.

7. The court erred in admitting into evidence matters pertaining to plaintiff’s divorces from his first and second wife, over objection of counsel for plaintiff. 8

8. The court erred in refusing to give Plaintiff’s special instructions numbers 9 and 11.

9. The court erred in refusing to grant judgment to plaintiff at the end of defendant’s case.

We hold that assignments of error Nos. 2, 4 and 9 are not well made without comment.

We state the facts upon which the issues arose that the other errors assigned may be understandable.

The defendant signed and swore to an affidavit charging the plaintiff with forgery. He was arrested, detained and required to give bond for his release. The matter pended for several months and was dismissed on the motion of the Prosecuting Attorney. Thereafter, plaintiff instituted action against defendant grounded upon the charge of malicious prosecution.

The defendant offered testimony at length respecting the information upon which he acted in making the affidavit against plaintiff. Plaintiff also testified at length as to his innocence of the charge, that he had nothing to do with the forgery and knew nothing about it. He had the benefit of the dismissal of the charge against him. Douglass v. Allen, 56 Oh St 158; Gaiser v. Hurieman, 74 Oh St 271; Liebland v. Cleveland Electric Co., 4 O. C. C. N. S. 516.

It appears that a check was drawn for the sum of $55.91, signed by United States Discount Service by Kenneth W. Evans, payable to Rufus Stacey’s Grocery and endorsed by Rufus Stacey’s Grocery. One Clay Oney, who was in the employ of plaintiff, was indicted and convicted for the forgery of the check heretofore described. The check was cashed by a driver of a bread company which did business with plaintiff. Defendant inquired of plaintiff if he knew anything about the check who replied that he did not. Later, Oney confessed, in writing, to a Deputy Sheriff of Greene County in the presence of the Sheriff and another implicating the plaintiff and saying that he had gotten $25.00 of the proceeds of the check. The Deputy Sheriff testified that he informed the defendant of the confession of Oney. The defendant made no inquiry of Oney as to the forgery and Oney did not testify. Defendant also interviewed the driver of the bakery wagon who cashed the check.

It was the theory of plaintiff, fully developed in the evidence, that the prosecution against him was the result of malicious intent of the defendant, resulting largely from the fact that the parties were competitors in the grocery business with stores on opposite corners of intersecting streets and the inability of defendant to purchase a lot from plaintiff and later his business.

Plaintiff, in chief, testified that he had been convicted, sentenced and served some time in Kentucky for the offense of grand larceny. He denied or said that he did not remember having been convicted of other offenses in Kentucky. The defendant offered and the Court received in evidence defendant’s Exhibits C, D and E which were certified copies of entries in cases wherein the State of Kentucky was the plaintiff and one, Rufus Miller, the defendant, disclosing convictions of Rufus Miller of the offenses of house-breaking, hog stealing and carrying a concealed weapon. The defendant claimed that the Rufus Miller named in the copies of the entries was another of the same name as plaintiff. The certificates to the copies of entries were made by the Clerk of Courts of the court in which the entries were made. Defendant also developed on cross-examination that the plaintiff had twice been divorced for his aggression and by stipulation that the last decree was for his gross-neglect.

The plaintiff submitted two interrogatories to the jury which with the answers (2) disclosed that the defendant did not act without probable cause in signing the affidavit against plaintiff and (1) that defendant did not act maliciously in signing the affidavit.

We consider assignment of error No. 6 which questions the right of the defendant to introduce his Exhibits C, D and E in the manner in which they were proffered and contends that the evidence pertaining to the divorces was not properly admitted. We can not find that objection or exception was noted to the admission oí the evidence as to the divorces.

Defendant, in support of the admission of the certified copies of the entries in the criminal cases, cites §2317.42 R. C. We doubt if this statute authorizes the acceptance of the evidence. However, it is well recognized, in general, that properly authenticated copies of judicial records are admissible in evidence where the evidence is competent and relevant. 32 C. J. Evidence, pages 514, 517; 20 Am. Jur. Evidence, page 847. In Ohio, the 3rd syllabus of Harper v. State, 106 Oh St 481, supports the admissibility of the evidence in the form in which it was tendered.

Assignment of error No. 3, is that the verdict was based on prejudice against the plaintiff. Inasmuch as we find no evidence improperly admitted and it was at variance, there is no sufficient support for this contention.

No. 8 is that the Court erred in refusing to give to the jury plaintiff’s special instructions Nos. 9 and 11. No. 9 is to the effect that a discharge of a person by virtue of §2945.72 R. C. is a bar to further prosecution for the same offense by virtue of §2945.73 R. C. No. 11 is a charge on the effect of an acquitaal of the charge of forgery. The former is incomplete. Neither was controlling of any material issue.

No. 5 is that the Court erred in overruling plaintiff’s motion for a new trial. The assignment is not well made. If the damaging evidence as to the prior convictions of Rufus Miller related to another than plaintiff and he had support for that fact, it could have been set up in the motion as newly discovered evidence. This was not done.

Assignment No. 1 is that the judgment is against the manifest weight of the evidence.

The case for and‘against the defendant having been fully developed the principal and controlling issues were want of probable cause to justify the defendant in making the affidavit against plaintiff and, if found in favor of piaintiff, was the action taken against him maliciously done. Unfortunately for plaintiff both interrogatories were answered in favor of the defendant. The interrogatories went to the two vital issues in the case and the jury had the right to evaluate them for or against the plaintiff. Want of probable cause is the gist of the action. White v. Tucker, 16 Oh St 168 and malice becomes material only if want of probable cause appears. Melanowski v. Judy, 102 Oh St 153.

Finding no error in the trial of the cause to the prejudice of plaintiff in any of the particulars assigned, the judgment will be affirmed.

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