text:
    HERCULES TROUSER COMPANY, Plaintiff, v. ZARET, Defendant.
    Common Pleas Court, Payette County.
    No. 21195.
    Decided March 24, 1954

      Collis Gundy Lane, Richard Huggard, Columbus, for plaintiff.
    Benoy & Sebastian, Columbus, for defendant.
   OPINION

By CASE, J.

The respective motor vehicles of Hercules Trouser Company (plaintiff) and Mitchell L. Zaret (defendant) were engaged in a collision on January 26, 1950; and, on March 24, 1951, plaintiff filed its original petition herein seeking damages in the alleged amount of its entire loss arising therefrom; and, to said petition, defendant filed his motion to strike on April 18, 1951.

On September 25, 1953, by leave of court, plaintiff filed its amended petition herein seeking damages for all losses suffered by it as a result of said collision.

On October 3, 1953, defendant answered plaintiff’s amended petition and, for his second defense therein, asserted:

“For his second defense, the defendant says, that the plaintiff is not the real party in interest for the reason it has assigned all or part of its claim to some other person or corporation.
“Interrogatories are attached hereto to be answered under oath by an officer of the plaintiff,”

and said interrogatories, so attached to defendant’s answer, read:

“Interrogatory No. 1.
“State whether or not plaintiff has assigned its right of action to recover for damages sustained by the tractor and trailer involved in the collision referred to in the amended petition, to any person, firm or corporation, either in whole or in part.
“Interrogatory No. 2.
“If your answer to interrogatory No. 1 is that said cause of action has been assigned, either in whole or in part, state to what person, firm or corporation said cause of action has been so assigned.”

On October 26, 1953, the court scheduled and assigned said matter for jury trial on March 23, 1954.

On March 4, 1954, plaintiff (Hercules Trouser Company) filed the following motion herein:

“Plaintiff moves the court for an order making the Federal Insurance Company, a party plaintiff herein; and for leave to file a Second Amended Petition.”

and plaintiff attached thereto an affidavit in support thereof which reads as follows:

“Richard Huggard, being first duly sworn, says that he is attorney for plaintiff; that at the time of the collision described in the amended petition filed herein, the Hercules Trouser Company carried a Fifty Dollar ($50,001 Deductible Collision Policy with the Federal Insurance Company; that as a result of said collision and said policy, the Federal Insurance Company paid to the Hercules Trouser Company the sum of Six Hundred Ninety and 18/100 ($690.18) Dollars; and that the Federal Insurance Company is a necessary party to the determination of this cause.”

DISCUSSION OF LAW AND FACTS

All parties concede that the claim for damages, as set forth in plaintiff’s original and amended petition, arose out of said collision which occurred on January 26, 1950. This being true, it follows that plaintiff’s cause of action accrued on said date and that the statutory time, within which plaintiff could pursue its remedial rights through such action, was fixed and determined by the provisions of §11224-1 GC, which read: '

"An action for bodily injury or injuring personal property shall be brought within two years after the cause thereof arose.”

Also, it is noted that §2305.10 R. C., contains language identical with that of the former section quoted above.

It is equally clear that the Second Defense, as set out in defendant’s answer, is a special statutory defense, in the nature of abatement, as provided for by the provisions of §3307.05 R. C. (formerly §11241 GC) which reads:

“An action must be prosecuted in the name of the real party in interest, except as provided in §2307.06 to §2307.08, inclusive, R. C. When a party asks that he may recover by virtue of an assignment, the right of counterclaim, and defense, as allowed by law, shall not be impaired.”

It is obvious that défendant’s second defense urges and relies upon the alleged assignment of all or part of the claim sued on by plaintiff (Hercules Trouser Company) to some other person or corporation.

It is admitted by plaintiff’s affidavit in support of the within motion that, at the time of the accident complained of, the Hercules Trouser Company carried a $50 Deductible Collision Policy with the Federal Insurance Company and that, “as a result of said collision and said policy,” the Federal Insurance Company paid the plaintiff the sum of $690.18.

With respect to such preexisting coverage and subsequent payment, there appears to be some similarity of facts between the case at bar and the case of Vasu v. Kohlers, Inc., 145 Oh St 321, where the Supreme Court held, among other things:

“6. Where an injury to person and to property through a single wrongful act causes a prior contract of indemnity and subrogation as to the injury to property, to come into operation for the benefit of the person injured, the indemnitor may prosecute a separate action against the party causing such injury for reimbursement for indemnity monies paid under such contract.
“7. Parties in privy, in the sense that they are bound by a judgment, are those who acquired an interest in the subject matter after the beginning of the action or the rendition of the judgment; and if their title or interest attached before that fact, they are not bound unless made parties.” (Emphasis ours.)

At the bottom of page 322 of the Vasu case, supra, it appears that the Federal Insurance Company was also the insurer in that case, and that the terms and provisions of its $50 deductible collision policy so issued to Vasu operated so as to assign the insured’s entire claim for damage upon the payment of $313.49 to the insured and that such payment was made prior to the commencement of an action in the common pleas court.

Bearing in mind the mandatory provisions expressly set forth in the last sentence of §2307.05 R. C., to the effect — “When a party asks that he may recover by virtue of an assignment, the right of counterclaim, and defense, as allowed by law, shall not be impaired,” — it becomes clear that whether plaintiff (Hercules Trouser Company) is the real party in interest and whether defendant’s second defense, as allowed by law, shall be impaired, must be determined from the specific date on which the Federal Insurance Company made its payment of $690.18 to the Hercules Trouser Company and the provisions contained in said insurance policy providing for assignment to said insurer of the insured’s entire claim for such damage.

Obviously, the facts admitted and disclosed by plaintiff’s motion and affidavit in support thereof do not reveal whether the assignment to Federal Insurance Company became effective before or after commencement of the within action and whether the provisions of said insurance policy operated as an assignment of plaintiff’s entire claim against the defendant.

The reason, if any, for the absence of such determinative assertions and representations on behalf of plaintiff’s motion to make said insurer a party plaintiff herein, is peculiarly within plaintiff’s knowledge. The apparent reluctance to divulge and incorporate such factual information in support of its motion to make said insurer a party plaintiff (some four years after the cause of action accrued and nearly three years after plaintiff had brought action thereon, and after defendant had answered setting up a special statutory defense that plaintiff was not the real party in interest) tends to indicate that said motion possesses certain definite dilatory character and purpose; and, in the absence of any past or present effort by the Federal Insurance Company to intervene herein, reasonably indicates the dilatory purpose and intent of said motion.

The relative significance of such failure, to reveal certain essential and determinative facts upon motion to make the insurer an additional party plaintiff at this late date, cannot be ignored where plaintiff of record, by its previous pleadings, sought to recover the entire damages of $850.00 and now admits that a new party plaintiff is entitled to $690.18 of that total. Thus far the record fails to show that the Federal Insurance Company has exercised any diligence or effort to assert such claim.

Plaintiff (Hercules Trouser Company) contends that the Federal Insurance Company is a necessary party in this proceeding and cites in support thereof Color Co. v. Mfg. Co., 155 Oh St 17. Beginning at page 24 of its opinion in that case, the Supreme Court of Ohio cited with approval the case of United States v. Aetna Casualty & Surety Co., infra, as follows:

“In the recent case of United States v. Aetna Casualty & Surety Co., 338 U. S., 366, 94 L. Ed., 171, 70 S. Ct., 207, 12 A. L. R. (2d), 444, construing the federal Tort Claims Act, providing for the prosecution of tort claims against the United States for wrongful act or wrongful death in connection with revised U. S. Statute 3477 prohibiting transfers and assignments of such claims except assignments made as the payment of a claim, the court held that an insurer-subrogee, who has substantive equitable rights, such as an insurance company which has been subrogated wholly or in part by payment to an insured upon a claim arising under the federal Tort Claims Act, qualifies as ‘the real party in interest’ within the meaning of Rule 17 (a) of the Federal Rules of Civil Procedure, which provides that every action shall be prosecuted in the name of such party and that a subrogee who has paid an entire loss suffered by the insured must sue in his own name, as he is the only real party in interest; that an insurer who has paid only part of the loss suffered by the insured may bring suit alone as the real party in interest; and that he is not required to bring suit in the name of the insured for his own use and for the use of the insurance company.
“In the opinion in that case, Chief Justice Vinson, after discussing the reasons for prohibition of the assignment of claims against the United States and observing that the rule has been held not to apply to transfers by operation of law, said:
'* * * If the subrogee has paid an entire loss suffered by the insured, it is the only real party in interest and must sue in its own name. 3 Moore, Federal Practice (2 Ed.), page 1339. If it has paid only part of the loss, both the insured and insurer (and other insurers, if any, who have also paid portions of the loss) have substantive rights against the tort feasor which qualify them as real parties in interest.’”

It is axiomatic that the syllabus of decisions of our Supreme Court state the law of the case; and that the first two paragraphs of the syllabus in the Color Co. v. Mfg. Co., case, supra, read as follows:

“1. An action must be prosecuted in the name of the real party in interest.
“2. Persons who are united in interest in the subject matter of an action must be joined as plaintiffs or defendants.”

but it is also true that all of the facts and circumstances surrounding the insurance contract between the insurer and insured in that case were clearly revealed and before the court in determining the issues therein. There are substantial differences between the facts of record in that case and those in the case at bar, and it does not appear that said decision is controlling or dispositive of the motion in the case at bar for, as held by the Supreme Court, in the case of Gordon v. Rhodes, 158 Oh St 129:

“1. A reported decision, although in a case where the question might have been raised, is entitled to no consideration whatever as settling, by judicial determination, a question not passed upon or raised at the time of the adjudication.” and it does not appear that the court, in the case of Color Co. v. Mfg. Co., supra, had before it the factual situation which distinguishes that case from the instant proceeding.

It is also noted that the provisions of §11241 GC, providing that “an action must be prosecuted in the name of the real party in interest,” and of §11256 GC, providing that “parties who are united in interest must be joined, as plaintiffs or defendant,” were in full force and effect at the time of said court’s decision in the case of Vasu v. Kohlers, Inc., 145 Oh St 321, wherein the following factual situation is recited, beginning at page 322:

“At the time of the collision the plaintiff had coverage of a $50 deductible collision policy on his automobile, written by the Federal Insurance Company as the carrier. On October 15, 1940, the Federal Insurance Company paid the plaintiff the sum of $313.49, covering the damage to his automobile, whereupon, in accordance with a provision of the policy, the plaintiff assigned to the insurance carrier his entire claim for such damage.
“On February 13, 1942, the Federal Insurance Company commenced an action, being case No.. 112394, in Mahoning County Common Pleas Court,' against Kohlers, Inc., the defendant in this case, to recoup the money paid by it to cover the damage on Vasu’s automobile.
“On August 6, 1942, Vasu, the plaintiff, commenced this action in the Common Pleas Court of Mahoning County against the defendant, Kohlers, Inc., to recover for personal injuries which he suffered in the same collision.”

And it appears, from paragraphs 6 and 7 of the syllabus thereof, that questions of facts, concerning “the real party in interest” and “persons who are united in interest in the subject matter of an action,” are to be established and determined upon the express provisions of the contract for indemnity and subrogation, as existing at the time of collision, and the actual time (before or after the beginning of an action for damages claimed) at which the interest so assigned to the insurer attached.

In the case of Vasu v. Kohlers, Inc., supra, the facts necessary and • required for these determinations were completely and fully before that court on the record, as was also true in the case of Color Co. v. Mfg. Co., supra.

In the case at bar, these essential facts are not of record and have not been furnished by said affidavit in support of the within motion to make the Federal Insurance Company a party plaintiff as a necessary party to this proceeding.

In its memorandum in support of said motion, plaintiff cites eight other cases in support of — “The right to substitute parties plaintiff, or bring in additional parties plaintiff, even after the expiration of the statutory limitation period, where the cause of action remains unchanged.”

With respect to the cases so cited, defendant’s memorandum in opposition to said motion reads in part as follows:

“The defendant has filed an answer in this cause. The second defense raised in the answer is that the plaintiff is not the real party in interest. * * *
“We oppose the motion of the plaintiff for the reason that the two year statute of limitations on this case expired January 26, 1952. • * »
“The case of Kyes v. Pennsylvania Railroad Company, 158 Oh St 362, is wholly irrelevant. That case involved the substituting of a domiciliary administratrix in place of an ancillary administrator in a wrongful death action. There is no similarity between that case and the instant case.
“The case of Morton v. Fast, Executor, 159 Oh St 380, involved no change or addition of parties.
“The cases of Douglas v. Coal Company, 135 Oh St 641, Heater Company v. Shafer, 19 Oh Ap 399, Bonding Company v. Second National Bank, 22 O. C. C. (N. S.) 177, and McLaughlin v. Barnes, 18 O. C. C. 623, all involved cases of substituting parties. That question is not involved in the instant case.
“The case of Baughman v. Hower, 56 Oh Ap 163, involved a case of an indivisible chose in action. Furthermore, the Court of Appeals, in that case, held that the demurrer should have been overruled because the necessary facts were not apparent on the face of the second amended petition.”

This court finds that the distinctions so set forth in defendant’s memorandum appear to be well made and subscribes thereto and adopts same in disposing of the within motion.

It is also noted that the question of the applicability of the statute of limitations was first raised in plaintiff’s memorandum; and although, as already pointed out, its relation to the issue herein raised by the motion cannot be fully determined, in the absence of those essential facts hereinabove discussed and set forth, there appears to be some authority for defendant’s contention that said statute of limitations is a bar to such claim of said insurer as the real party in interest- In the case of Hartford Accident & Indemnity Co. v. Procter & Gamble Co., 91 Oh Ap 573, the Court of Appeals for Hamilton County held;

“4. The bar of a statute of limitations operates against the assignee of a cause of action with the same force with which it would have controlled the person from whom the right or title was derived.”

And in the case of Squire v. Guardian Trust Co., 79 Oh Ap 371, in paragraph 21 of the headnotes thereto, the Court of Appeals for Cuyahoga County held:

“21. The policy of the law is against the assertion of stale claims.”

Whatever interest, if any, the Federal Insurance Company may have acquired or derived from the Hercules Trouser Company, as the result of any existing insurance contract at the time of said collision, the record herein clearly fails to show that such insurer has exerted any diligence or effort to assert any rights thereunder or to make any representations with respect thereto. Such demonstrated and continuing lack of interest, over a period of four years since the date of said accident, should be considered in disposing of the within motion, together with such other matters of record which would particularly indicate and signify dilatory motive or intent in the filing thereof.

The provisions of §2309.58 R. C., read:

“Before or after judgment, in furtherance of justice and on such terms as it deems proper, the court may amend any pleading, process or proceeding, by adding or striking out the name of any party, or by correcting a mistake in the name of a party or a mistake in any other respect, or by inserting other allegations material to the case, or, when the amendment does not substantially change the claim or defense, by conforming the pleading or proceeding to the facts proved. When an action or proceeding fails to conform to the laws governing civil procedure, the court may permit either to be made conformable by amendment.”

The cases have universally held that this section (formerly §11363 GC) vests broad discretionary powers in the court. However, in the light of all the facts and circumstances of record in the instant proceeding as hereinabove set forth and discussed, it appears that the granting of said motion, to make the Federal Insurance Company a party plaintiff and for leave to file a second amended petition herein, would impair and substantially change defendant’s second defense and would not be in furtherance of justice within the meaning and intent of said section.

CONCLUSION

For the reasons and upon the grounds above set forth and discussed, this Court finds that:

1. The express provisions of a contract for indemnity and subrogation are essential matters of record to determine the real party or parties in interest;

2. When an insured has brought action within the statutory period as the real and sole party in interest and, after defendant’s answer has been filed denying such interest, such insured seeks the addition of an insurer as a real party in interest, such motion and affidavit in support thereof should clearly show the express provisions of the contract by which the alleged insurer acquired or derived an interest and whether such acquisition attached before or after said action was commenced;

3. When it appears from the record that the statutory period has run against such alleged insurer and the facts of record further show that such insurer has failed, for over a period of four years, to exert any effort to intervene with respect to such claim, the court may consider such facts to be indicative of the dilatory purpose and intent of such motion;

4. When defendant’s answer set up a specific defense directed to the real interest of the insured plaintiff, under the facts and circumstances above set forth, the court should find that the granting of said motion would impair and substantially change defendant’s defense, and would be contrary to the purpose and intent of §2307.05 and §2309.58 R. C.; and

5. That, upon due consideration of all facts of record as shown by the respective pleadings, motion and affidavit, the court should find said motion not to be well made; and that said motion should be overruled.

The court further finds that counsel for defendant should prepare an entry accordingly with appropriate notation therein of exceptions on behalf of plaintiff and thereupon submit same within ten days to counsel for plaintiff and to this court for approval.


source: Caselaw Access Project

author: Per CURIAM.

license: Public Domain

text:
    ASTERI, Plaintiff-Appellant, v. YOUNSTOWN (City), Defendant-Appellee.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3535.
    Decided March 24, 1953.
    Morris Mendelssohn, Youngstown, for plaintiff-appellant.
    H. H. Hunt, Law Director, I. Freeman, Asst. Law Director, Youngstown, for defendant-appellee.
   OPINION

Per CURIAM.

Plaintiff appealed on questions of law from a judgment of the court of common pleas entered upon a jury verdict returned for defendant, a municipal corporation, in plaintiff’s action filed against it to recover damages for personal injuries sustained while walking in a southerly direction on the easterly sidewalk of the Division Street bridge, within the corporate limits of defendant city, about 11:15 P. M. on the 20th day of June, 1950, and falling in a hole in such sidewalk, as the result of which he allegedly received personal injuries.

Plaintiff alleged that defendant had permitted the sidewalk, which was maintained by defendant city, to become broken, rough, uneven and unsafe for pedestrian travel, which condition it had allowed to exist for a long period of time, thereby failing to keep such sidewalk open, in repair and free from nuisance; and of which condition plaintiff was unadvised, having recently moved into the neighborhood.

By assignments of error plaintiff further claims that the verdict of the jury was rendered as the result of passion and prejudice, is not sustained by sufficient evidence, is against the decided and manifest weight of the evidence, is contrary to law, and that the trial court erred in overruling his motion for a new trial.

The trial judge charged the jury in writing before argument the following requests to charge before argument submitted by plaintiff:—

“The court charges each of you as a matter of law that if the plaintiff at all times in question exercised that amount and degree of care that an ordinary careful and prudent person ordinarily and customarily exercises in the same or similar situation, then the court says to you that he would not be negligent even in the slightest degree.
“The court instructs you as a matter of law that if you find by the greater weight of the evidence in this case that the sidewalk in question was on the 20th day of June, A. D„ 1950, in a defective, unsafe and dangerous condition for travel thereon by the public, and that sufficient time had elapsed between the time said sidewalk became defective and the time of the injury to plaintiff to enable the defendant, by the exercise of reasonable diligence, to have discovered and repaired said sidewalk prior to the time of the accident and that the defendant was guilty of maintaining a nuisance in one or more of the respects claimed in plaintiff’s petition and that such nuisance was a proximate cause of injury to plaintiff and that the plaintiff himself at the time complained of, was in the exercise of ordinary care for his own safety, then l say to you as a matter of law that your verdict in this case should be for the plaintiff.
“The plaintiff had a right in walking upon said sidewalk in the absence of his knowledge to the contrary to presume that the defendant City of Youngstown had performed its duty relative thereto and that said sidewalk was in a reasonably suitable condition for him to pass over. He was not required to make a minute, searching and continuous inspection of the sidewalk in front of him for defects; he was only required to exercise ordinary care in using said sidewalk and ordinary care consists of that kind and degree of care that an ordinary careful and prudent person ordinarily and customarily exercises in the same or similar situation.
“Nine or more of your number may find in favor of either party. If you find in favor of the plaintiff then nine or more of your number may determine the amount of money to be awarded to him in way of damages.”

In his general charge to the jury the trial judge said:—

“Now I come to the next issue which I have just said I would take up and that is whether or not the plaintiff himself was negligent directly contributing to bring about his own injuries. Now what is meant by contributory negligence? Contributory negligence may be defined to be any act or omission on the part of the plaintiff amounting to a want of ordinary care which, combining and cooperating with the negligence of the defendant, becomes a proximate cause of the injury complained of. The burden of establishing contributory negligence as a defense would rest upon the defendant unless the proof adduced in behalf of plaintiff is of such a character as to raise a presumption of negligence on his part in which case plaintiff is required to produce evidence sufficient to counterbalance the evidence giving rise to the presumption but in which case the plaintiff is entitled to the benefit of any evidence that may be produced by the defendant tending to dispel the inference or presumption that has arisen against plaintiff from plaintiff’s own evidence.
“Now whether or not the plaintiff himself was negligent directly contributing to bring about his own injury is an issues of fact for the jury under all the evidence in the case and under the law. If he was he cannot recover in this case; if he was not then he is not barred from a recovery by this rule of contributory negligence.”

The trial judge correctly charged upon the issue‘of contributory negligence.

Clearly by submitting his request to charge before argument to the trial judge plaintiff invited a charge upon the issue of contributory negligence of which he may not be heard to complain now. See unreported case of Candella v. Youngstown Municipal Railway Company, Mahoning Appeals for the year 1941, Volume 2, Page 143. See also 2 O. Jur., Part 1, Section 52, Pages 956 to 961.

Since the case we review was submitted to the jury on the question of defendant’s maintenance of a nuisance and plaintiff’s contributory negligence, and the verdict of the jury was not tested by interrogatories, the two issue rules does operate and the judgment can not be reversed unless the verdict of the jury is found to be against the manifest weight of the evidence on both issues.

“The two-issue rule is, that error in the charge of the court dealing exclusively with one of two or more complete and independent issues required to be presented to a jury in a civil action will be disregarded, if the charge in respect to another independent issue which will support the verdict of the jury is free from prejudicial error, unless it is disclosed by interrogatories or otherwise that the verdict is in fact based upon the issue to which the erroneous instruction related.” Bush v. Harvey Transfer Co., 146 Oh St 657.

The remaining issue for this court to determine is whether the verdict of the jury is against the manifest weight of the evidence on the issue of plaintiff’s contributory negligence.

Defendant’s evidence on this issue is that a five hundred candle power white way lamp was situated within three or four feet of the 6 x 10 inch defect complained of.

There is uncontradicted evidence that plaintiff had never before walked over the place where the defect was situated.

Considering all the evidence on the issue of contributory negligence two members of this court conclude that the verdict of the jury on this issue is against the manifest weight of the evidence. All members of the court conclude that the two issue rule is applicable to the facts of this case on the issue of nuisance because reasonable minds could not find otherwise than that the nuisance existed as alleged.

The members of this court being unable to agree unanimously that the verdict of the jury is against the manifest weight of the evidence on the issue of contributory negligence, and finding no other error prejudicial to plaintiff the judgment of the court of common pleas must be and is affirmed.

GRIFFITH, PJ, PHILLIPS & NICHOLS, JJ, concur.


text:
    STATE, ex rel. RICHMOND, Relator-Appellant, v. RENNER et, Respondents-Appellees.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3566.
    Decided April 8, 1953.
    William E. Lewis, Youngstown, for relator-appellant.
    H. H. Hunt, Law Director, I. Freeman, Asst. Law Director, Youngstown, for respondents-appellees.
   OPINION

Per CURIAM.

The question presented by relator’s appeal on questions of law from a judgment of the court of common pleas dismissing her petition in mandamus filed to compel respondents to place her name on the roll of the Youngstown Police Relief and Pension Fund and to pay her a pension of $30.00 a month from September 25, 1947, to October 5, 1950, as an unmarried minor child of an admitted member of such fund, is whether the trial judge erred to her prejudice in finding and accordingly entering judgment that she was ineligible to receive such pension because:—

“* * * construing all the statutes involved, it is clear that the rights of one claiming a pension are to be determined by the pension rules and laws in effect at the time of the officer’s death; that the amendments of the statute are not intended to and do not create pensions, except as to beneficiaries of deceased members dying after the effective date of the amendments; that this ruling as to the sections of the statute applicable to policemen is the same as that in the Dailey case involving firemen, known as Common Pleas Case No. 132515, Court of Appeals No. 3425, Supreme Court No. 32794.”

Relator, born October 5, 1932, is a surviving unmarried minor child of an admitted member of the fund, who died February 13, 1941, leaving relator and a widow (who has not remarried) to whom a pension has been duly and regularly paid in accordance with law and the rules and regulations of such fund.

Sections 8 and 10 of Article III of the rules and regulations of the Board of Trustees of the Youngstown Police Relief and Pension Fund as effective at the times in question provide respectively as follows:—

“Section 8. If any regular member of the Police Department shall, while in the discharge of his duties, be killed or shall die from the effects of an injury, or shall die from any disease contracted while a member of the Department, or if any retired member, who served twenty years before retiring, or if a retired member who has retired from disability sustained through accident, while in the discharge of his duties, and if such member shall leave a widow, such widow, while she remains unmarried, shall receive a pension of Fifty Dollars ($50.00) a month to be paid monthly, but in no case shall the pension of a widow exceed Fifty Dollars ($50.00) per month.”
“Section 10. If any regular member of the Police Department is killed or a member of the Department, or a retired member dies from any cause and does not leave a widow, but leaves a minor child or children under the age of eighteen years, then such minor child or children shall each, until arrived at the age of 18 years, be entitled to receive a pension of Fifteen Dollars ($15.00) per month, said amount to be paid to the Guardian of such minor child or children.”

As amended, effective September 25, 1947, §4628, sub-paragraph 6, GC, provides:—

“Each surviving child of a deceased member shall receive 'a pension of Thirty Dollars per month until such child attains the age of eighteen years, or marries, whichever event occurs first, provided, however, if a deceased member leaves a widow and more than three children eligible for pension payments such children shall receive a pension of Ninety Dollars per month to be divided equally among them, and provided further, if a deceased member leaves no widow and more than five children eligible for pension payments such children shall receive a pension of One Hundred Fifty Dollars per month to be divided equally among them.”

Sec. 4628-4 GC, effective October 26, 1949, provides:—

“In the event a widow, surviving child or dependent parent of a policeman has been granted a pension pursuant to the rules and regulations of a police relief and pension fund which were in force and effect prior to September 25, 1947, and the amount of pension paid to any such persons is less than the amount provided for in subparagraphs five, six or seven of §4628 GC, the trustees of the poiice relief and pension fund from which such a pension is paid may increase the amount of the pension payable to each of said beneficiaries not to exceed the amount provided for in the applicable paragraphs of said subparagraphs five, six and seven of §4628 GC.”

Defendant contends that §4628 GC, sub-paragraph 6, nullified the provisions of Section 10, Article III, of the Rules and Regulations of the Youngstown Police Relief and Pension fund.

Respondent contends that “the controversy here involves the construction of provisions in the Police Pension Act— namely, the right of a surviving child, who has not been granted a pension under the local rules, to receive a pension under §4628 (6) GC,” and argues:—

“It is quite obvious that this provision is intended for future eligibles, as manifested by the forerunning provision in §4628 GC, that ‘the widows, children and dependent parents who, prior to the effective date of this act, were granted pensions by the trustees of a police relief and pension fund shall be entitled to receive such pensions in accordance with the rules and regulations governing the granting of such pensions in force and effect on April 1, 1947.’ That such is the intention of the statute is further reflected by the provisions of §4628-4 GC, adopted on October 26, 1949.”

We believe, as contended by respondents, that the benefits:

“* * * to a surviving child provided by Paragraph 6 of §4628 GC, apply only to members of the Fund who die after the effective date of the statute, September 25, 1947, and to children who survive by reason of death of the parent after such date. A child not entitled to any benefits under the local rules then in effect by reason of a surviving widow, cannot claim any under the amendment applicable to holders of pensions. The language in the forepart of §4628 GC, is very plain and obvious. It says: ‘The widows, children who, prior to the effective date of this Act, were granted pensions * * * shall be entitled to receive such pensions in accordance with the rules governing the granting of such pensions in force and effect on April l, 1947.’ The local rules then in effect gave children no pension when there was a surviving widow.”

Further we believe, as respondent maintains:—

“The act of 1947 and the 1949 Amendment have frozen the rule-making power of the board with respect to the fixing of pensions and benefits, now payable as provided by statute. The Supreme Court, in the Eden and Cunat cases, 127 Ohio St 276; 149 Ob St 477, 150 Oh St 377, settled the law that pensions granted under the local rules are ‘vested rights’ under §4628-1 GC, and the rights thereto are governed by the rules adopted and in force at the time of the death or retirement of the deceased member. §4628-1 GC provides:—
“ ‘The granting of relief or pension to any person or persons pursuant to the rules adopted by the trustees shall operate to vest a right in such person or persons to obtain and receive the amount fixed by the board of trustees.’
“Relator, not having received a pension under the local rules, has a vested right in nothing.”

We conclude that no mandatory, nor ministerial duty capable of being enforced against respondents by mandamus is presented by relator’s appeal under the provisions of §4628-4 GC, which section merely confers discretionary power upon respondents under the circumstances therein stated.

The judgment of the court of common pleas is affirmed.

GRIFFITH, PJ, PHILLIPS & NICHOLS, JJ, concur.


author: By BARTLETT, J.

text:
    SMITH, Plaintiff, v. DICKINSON et, Defendant.
    Common Pleas Court, Franklin County.
    No. 186780.
    Decided April 16, 1953.
    Edward F. Lynch, Columbus, for appellee.
    Harry P. Nester, Columbus, for appellant.
   OPINION

By BARTLETT, J.

1. MOTION FOR REHEARING AND REQUEST FOR QRAL ARGUMENT THEREON, BOTH OVERRULED.

The motion for a rehearing on the court’s order dismissing the appeal from the Municipal Court of Columbus, has been referred back to the undersigned as the judge who rendered he-order of dismissal.

“The office of an application for rehearing is not to invoke again an expression from the Court upon matters which have been already carefully and completely considered, but to direct the attention of the Court to some questions or propositions of law or facts that have,not been given attention.”

White v. Columbus (City) et al., 27 Abs 489, 496, 2nd Dist. Court of Appeals, Franklin County.

“7. Oral argument will not be permitted on presentation of an application for a rehearing in the Court of Appeals under its rules, unless there is some substantial reason therefor.”

Hughes v. Roberts, 18 Abs 438, 439 — same Court.

Sec. 12223-21 GC, among other things provides as follows:

«* * * Failure to file such briefs and assignments of error within the time prescribed by the court rules shall be cause for dismissal of such appeal. * * *”
“There is no doubt that under the statute and the rule the Courts of Appeals have power to dismiss an appeal on questions of law for failure of the appellant to file his assignment of errors, * * * such courts have usually been quite liberal and have not dismissed such appeals for failure to have filed a separate assignment of errors provided the brief of appellant adequately discloses the errors of which complaint is made * * * Of course, in spite of the liberal practice with respect to the separate assignment of errors, where the appellant has failed, within the time allotted, to file both assignment of errors and brief, dismissal results.”

2 O. Jur. Sec. 488, Appellate Review, p. 872.

“Where assignment of errors and briefs are not filed by appellant until 93 days after notice of appeal is filed, in violation of Rule VII of the Rules of Practice of the Courts of Appeals requiring the filing of assignment of errors and briefs within 50 days after notice of appeal, and where no sound excuse for the delay was given, or leave of court obtained, a motion for leave to extend time for filing will be overruled and a motion to dismiss will be sustained.”

Voight et al. v. The Southern Ohio Savings Bank & Trust Co., 70 Oh Ap 327.

“A motion to dismiss an appeal will be granted for violation of Rule VII of the Court of Appeals in failing to file assignments of error, brief, or bill of exceptions within fifty days after the filing notice of intention to appeal.”

Smith Builders Supply & Coal Co. v. Johnson, 32 Abs 342— 2nd Dist. Court of Appeals.

“We have had statement of counsel for appellant which appeals to any discretionary authority that the court might have in waiving the rule, but inasmuch as we have enforced it without exception for five years last past, we cannot waive it in this particular case.
“The procedure to secure an extender of time within which to file brief is such that there is no occasion for counsel running afoul of the rule. Almost without exception, opposing counsel will accede to an extender of time, if the application therefor is made within rule; and if not, it is seldom that the Court will refuse such extender.”

Smith Builders v. Johnson, supra.

“1. The Court of Appeals of Franklin County adheres very strictly to the rule that an appeal be dismissed where a brief is not filed within time unless for good cause shown.
“2. After an appeal had been dismissed on the uncontradicted ground that brief had not been filed within the time prescribed by the court rules, no good and sufficient reason being given for noncompliance, it comes too late to ask the court to consider grounds for not filing the brief claimed to be good after time for filing answer memoranda, where no application for extension of time for filing brief had ever been made.”

Foerster v. Foerster, etc., 43 Abs 97 — same court.

«* * * The difficulty with defendant-appellant’s position is that he has been derelict in taking the necessary steps to accomplish what he now desires. What defendant-appellant should have done in the first instance was to file with this Court an application for extension of time for filing brief, setting out as a ground therefor the factual situation which he now presents for the first time. The probability is that counsel for the appellee would have signed an agreed entry granting such an extension.”

Foerster v. Foerster, etc., supra.

The assignments of error and appellant’s brief were filed 67 days after the notice of appeal was filed and also after the appellee had filed his motion to dismiss the appeal for failure to file the assignments of error and brief within the 30 days required by rule of court. They were, also, filed after the 30 day period without leave of court first obtained.

The bill of exceptions was available on the 29th day but was not filed until the 35th day in this court.

The appellant’s counsel even to this day has not assigned any reason for his dereliction in not filing the assignments of error and brief within rule, or requesting an extension of time therefor.

We again cite Golden v. Fogo, 53 Abs 575, and Costa v Sturm et al., 53 Abs 284, both by the Court of Appeals, 2nd District.

There is nothing new presented to the Court on the motion for rehearing, and the same is overruled.

Entry accordingly with exceptions to appellants’ counsel.


author: By DOYLE, J.

text:
    SLUSSER, Appellee, v. SLUSSER, Appellant.
    Ohio Appeals, Ninth District, Summit County.
    No. 4263.
    Decided June 4, 1952.
    James M. Hinton, Akron, for appellee.
    Myers, Myers & Myers, Akron, for appellant.
   OPINION

By DOYLE, J.

Burge B. Slusser filed an action for divorce from his wife, Marietta, in the Court of Common Pleas of Summit County, and alleged, inter alia, the statutory ground of gross neglect of duty. The wife, in addition to an answer pleading a general denial, entered her cross-petition for “temporary and permanent alimony” on the ground of extreme cruelty. A reply was then filed which pleaded a general denial to the cross-petition. So stood the pleadings when the case came on for trial.

At the conclusion of the hearing, the trial court granted a divorce to the plaintiff on the ground of gross neglect of duty and ordered the plaintiff to pay to the defendant the sum of $2500 as and for alimony. The cross-petition of the defendant was dismissed.

From this judgment, the defendant has appealed to this court and presents the following assignment of errors:

“(1) The court erred in granting a divorce to the appellee;
“(2) The court erred in denying the cross-petition of the appellant; and
“(3) Other errors apparent on the face of the record.”

There is evidence in the record to justify the conclusion that the plaintiff, a 72-year-old man, married the defendant, a 56-year-old lady, on September 1, 1945. Each had been previously married. They lived together as husband and wife until September 9, 1948, at which time the defendant left the home which the plaintiff had provided, with the intention of never returning. Several days later she temporarily returned to her home with certain of her relatives, and removed all of her clothing and personal belongings. For a period of time prior to her leaving, she had engaged in acrimonious conduct toward her husband, predicated upon his refusal to purchase a farm in the country. His refusal. to accede to her demands was apparently prompted by his reluctance to become financially indebted at a time when his present home (without incumbrance) was comfortable and amply sufficient for persons of their means. On the day prior to her leaving she insisted that he buy a certain farm property, and, .upon his refusal, she became infuriated and directed toward him invective requests of a foul type.

On the contrary, there is evidence in the record to the effect that the husband’s conduct toward the wife was tainted with conduct of a rather violent character. Whether this conduct was aggravated by the conduct of the wife was a question for the trial court.

It was the duty of the trial court to determine the credibility of the witnesses and to determine the weight of the evidence. From the established facts, it was within the province of the court to draw all reasonable inferences. With these basic rules as our guide, we cannot say that the finding of the court was contrary to law or manifestly against the weight of the evidence.

It is the law that—

“10. Willful absence for a period of less than three years, unattended by any aggravating circumstances, is not a cause for divorce in this state and cannot be classed as gross neglect of duty; but desertion for a shorter period than three years, accompanied by aggravating circumstances, may constitute gross neglect of duty.”

Porter, Exr., v. Lerch, 129 Oh St 47.

We are of the opinion that the willful absence of the defendant with an intent to not return is in direct violation of §7996 GC. (“The husband is the head of the family. He may choose any reasonable place or mode of living, and the wife must conform thereto”), and that this conduct, coupled with the aggravating circumstances heretofore in part set forth, is sufficient to satisfy the rule pronounced in the cited case.

While §11988 GC, provided (as §8003-12 GC, now provides) that a divorce should not be granted upon the testimony or admission of a party, unsupported by other evidence, this section of the Code did not require that the entire testimony of the party be supported by corroborative evidence. Groff v. Groff, 33 Oh Ap 309. There is conclusive corroboration of the departure of the defendant from the home with an intent to not return. There is evidence from which the inference may be drawn that the schism in this family arose over the conduct of the wife, arising out of her husband’s refusal to buy a farm. The claim of a failure of corroboration, is, we think, not well taken.

As heretofore stated, the trial judge is the sole judge of the credibility of witnesses. Conflicts in the evidence and the weight of the evidence are to be determined by him alone, and the opinion of the members of this court cannot be substituted therefor.

Finding as we do that the judgment is neither contrary to law nor manifestly against the weight of the evidence, and that sufficient corroboration exists to justify a decree of divorce on the grounds of gross neglect of duty, the judgment will be affirmed.

Judgment affirmed.

HUNSICKER, PJ, STEVENS, J, concur.


author: By FULTON, J:

text:
    SPITZ, Plaintiff v. VOLIBAR REALTY COMPANY, a corporation, et al., Defendants.
    Common Pleas Court, Cuyahoga County.
    No. 641219.
    Decided February 15, 1954.
    Jack B. Dworken, Cleveland, for plaintiff.
    Hauxhurst, Inglis, Sharp & Cull (Hall Kellog), Harold Ziegler, Baker, Hostetler & Sidlo, H. B. Howell, P. J. Mulligan (Jones. Day, Cockley & Reavis), Perry L. Graham, Cleveland, for defendants.
   OPINION

By FULTON, J:

Plaintiff since 1951 has been the owner of two $500.00 notes and two shares of stock issued by The Volibar Realty Company.

He brought this action against The Volibar Realty Company, two of its former directors (one since deceased and another under legal disability) and named The Ohio Bell Telephone Company a sub-lessee of the leasehold owned by Volibar as a party defendant.

The action is designated “for accounting, money judgment, injunction, receiver and equitable relief.”

In the petition the plaintiff says that the “action is brought on behalf of this plaintiff and all other Shareholders, Unsecured Debenture Noteholders, and Creditors who may wish to join plaintiff in this proceedings.” Notwithstanding the quotation from the petition in the next preceding .sentence, plaintiff’s counsel did not and would not state unequivocally that plaintiff’s suit was a derivative action. Never was the statement made that plaintiff as a Shareholder brought this action for the benefit indirectly of all other Shareholders and directly for the corporation and its treasury. To the contrary plaintiff testified that no one joined him in the suit and that he represented only himself.

In view of the foregoing, and since the essential claim was mismanagement of Volibar by two of its former officers and directors, the court might readily take the easy way out by ending the law suit at this point. That might well have been done at the close of the opening statement, at the close of the plaintiff’s case, and at the close of the entire case. Since motions made at those respective stages were overruled, good faith on the part of the Court should require some determination of the issues presented by 'the pleadings.

The Court liberally interpreting the petition, considered that there were other issues than the recovery of money for the benefit of the corporation; and that the case involved a claim of a right to receivership and of an accounting to the plaintiff as an individual from the individual directors Pulliam and Warner, and from Volibar itself. Confessedly the Court infused the issue of accounting to the plaintiff from the corporation not only by a liberal interpretation of the prayer but by an ungrammatical construction thereof, and all, despite the fact it is commonly stated that the body of a petition and not its prayer determines the nature of the action.

The claims are that the defendant directors Pulliam and Warner mismanaged the company and its property and that present directors (not parties to this action) continue to mismanage the company and its property. There is absolutely no evidence that the present officers and directors of this corporation now are mismanaging or ever did mismanage this company or its property.

As to the former officers and directors it is said that Pulliam charged an unreasonable management fee and that Warner charged exorbitant attorney fees. The charge of $2400.00 per year made by Pulliam is under all circumstances fair and reasonable. It is clear from the evidence that Mr. Pulliam worked hard to “bring this property up.” His procurement of The Ohio Bell Telephone Company sub-lease, to this Court, was a lifesaver. His ability with the help of Mr. Warner to procure the consent of the Ohio Bell to a modification of its lease whereby it would assume one-half of the additional taxes charged and assessed by reason of the improvement made by The Ohio Bell Telephone Company results from a stroke of genius.

Certainly no lawyer would say that Warner’s retainer of $50.00 per month was exorbitant. His charge for services in reducing the tax valuation, after The Ohio Bell Telephone building was improved, was very wrong, but only because of its extraordinary inadequacy. The Court thinks Mr. Warner charged too little.

Therefore plaintiff as an individual and for and on behalf of other shareholders is entitled to no accounting from the individuals Pulliam and Warner.

Actually the plaintiff does not seek an accounting from the corporation. Assume that he does, the right to such accounting is based upon the fact that the corporation purchased some of its own outstanding notes and shares of stock. The acquisition of the stock was. incidental to the acquisition of the notes because when Volibar was organized it issued one note and one share of stock in each unit. Consequently the company was not buying its own shares of stock in violation of any Ohio statute. It acquired shares of stock as it purchased from time to time outstanding notes for about one-third of their face value. As these notes were acquired the corporation was benefited as were also its outstanding shareholders and other noteholders. v

Another complaint arose from the fact that two of the present officers and directors, as well as Mr. Pulliam when he was alive,“from time to time also bought these notes and with them incidentally shares of stock. The Court gathers from the greater weight of the evidence that initially Mr. Pulliam sought to find buyers for these notes, because holders wanted to sell them. Mr. Pulliam through his company sought to create a market for the notes. It is true that after the creation of such market certain letters seem to solicit noteholders to sell their notes. On the other hand, the plaintiff admits he did the same thing. His interest was in the acquisition of the corporation or its property because he thought the property was a good investment and he thought the notes and shares were good investments.

There is nothing in the record that entitles the plaintiff to either an injunction or receivership or any other equitable relief.

Plaintiff’s case is wrongly premised in two respects: Plaintiff claims that the noteholders own the real estate. Volibar owns the real estate. He also claims that Volibar is trustee for the noteholders. Volibar is the debtor of those note-: holders. This claim of Volibar’s trusteeship arises from a misinterpretation of the last sentence of the letter of The Union Trust Company addressed to Volibar Realty Company dated May 20,1931, being found as an exhibit attached to the minutes of the Directors’ meeting of May 18, 1931 (Plaintiff’s Exhibit “C”). That sentence reads: “Your position in this transaction is accordingly, that of being the representative and trustee for said bondholders, the real parties in interest.” Taken in context, the trusteeship there mentioned existed only until the judicial sale of the real estate.

This case probably will be appealed. Its character permits an appeal either on questions of law or on questions of law and fact. As against the possibility that the appeal may be on questions of law only, and for such help as it may be, this Court from a preponderance and the greater weight of the evidence, including the testimony of, as well as a consideration of the witnesses, their manner and demeanor and other qualities bearing upon their credit (not their veracity or honesty) and including a consideration of the exhibits which were studied, the Court finds:

1. The Volibar Realty Co. is a corporation which was organized to salvage the leasehold estates owned by its predecessor.

2. Volibar became and now is the owner of those leaseholds described in the petition.

3. Volibar, as part of its purchase of the leaseholds at judicial sale, or soon thereafter issued to the old bondholders of its predecessor certain debenture notes and shares of stock in the ratio of one $500.00 note for each one share of capital stock.

4. During the period between the order for and the completion of the judicial sale Volibar was trustee for the bondholders of its predecessor; however, said trusteeship terminated upon completion of said sale.

5. The Ohio Bell Telephone Company is owner of, as lessee of, a sub-lease of the premises described in the petition. Beyond this The Ohio Bell Telephone Company has no interest in the premises or in the litigation.

6. Plaintiff is a noteholder and shareholder of the securities issued by Volibar, having purchased these in 1951 as an investment.

7. Plaintiff purportedly, in part, appeared to claim that he represented other shareholders for the benefit of the corporation and its other shareholders — yet by testimony he disclaims that his action was or is representative or derivative.

8. Volibar bought some of its own outstanding notes and with these purchases acquired some of its own shares of capital stock.

9. Some of the officers of Volibar also bought these debenture notes and with them additional stock as part of the unit-purchase.

10. Plaintiff, too, attempted to buy more of these notes since he “figured” their purchase, the leasehold and the property to be a good investment.

11. Pulliam charged $2400.00 per year as management fee.

12. Pulliam succeeded in getting the valuable Ohio Bell Telephone sub-lease.

13. Warner received a retainer as counsel in the amount of $50.00 per month and charged an additional nominal fee only for bringing about a reduction in tax valuation in the amount of approximately $400,000.00.

14. There was paid a real estate commission fee of $12,500.00 to a broker and an additional fee of $6500.00 to an attorney not otherwise identified with Volibar or its property in connection with the negotiations for and consummation of The Ohio Bell sub-lease.

15. Hostetler and Prior, against whom complaints are made, are not parties to the suit; and besides no mismanagement against them was proven.

Upon the foregoing findings the Court now concludes:

1. Volibar was not and is not trustee for the debenture note-holders — except during the limited period set forth in the findings.

2. The debenture noteholders do not own the leasehold.

3. Volibar owns the leasehold.

4. The Ohio Bell Telephone Company owns the sub-leasehold.

5. Plaintiff’s case is not a derivative action for the benefit of the corporation or its shareholders.

6. Plaintiff’s action is for himself.

7. The purchase by Volibar of its .outstanding notes and with them incidental shares of its capital stock benefited the company and violated no law, statutory or otherwise.

8. The purchase of notes by former officers and present officers was no part of any scheme or conspiracy to injure the noteholders or anyone else.

9. There was no scheme participated in, by conspiracy or otherwise, by the parties to the suit to injure plaintiff or other noteholders or shareholders.

10. Neither Pulliam nor Warner, nor anyone else were guilty of any mismanagement or of any overcharging the company for services.

11. The Ohio Bell Telephone sub-lease was a great benefit to the corporation.

The decree, finding, and judgment, with costs assessed against plaintiff, is for defendants' — all, each and every A Journal Entry shall be prepared including specifically the foregoing findings and conclusions together with exceptions to all parties.


text:
    PACIC, Plaintiff-Appellant, v. CENTURY FOOD MARKETS CO., Inc., Defendant-Appellee.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3550.
    Decided April 13, 1953.

      Samuel E. Karam, Youngstown, for plaintiff-appellant.
    Manchester, Bennett, Powers & Ullman, Youngstown, for defendant-appellee.
   OPINION

Per CURIAM.

Plaintiff appeals on questions of law from a judgment of the court of common pleas entered on a jury verdict returned for defendant in plaintiff’s action filed in that court to recover damages from it for personal injuries sustained in an automobile collision allegedly caused as the result of the carelessness and negligence’ of one of defendant’s agents, servants and employees in the operation of one of its gasoline trucks on West Federal Street at the intersection of Hazel Street in the city of Youngstown.

About eight o’clock on the morning of October 23, 1949, plaintiff, a member of the police department of the city of Youngstown, was operating one of its police ambulances, in answer to an emergency call, in a northerly direction on Hazel Street, an improved, duly dedicated and accepted public thoroughfare of that city. When such ambulance reached a point thereon where that street intersects West Federal Street, the main business street of the downtown section of Youngstown, such ambulance and defendant’s truck, then being operated in an easterly direction in West Federal Street, collided.

Plaintiff’s evidence is that as the ambulance approached and entered such intersection with sounding siren, at a speed estimated at between three to fifteen miles an hour, the electric traffic signal light, which controls the flow of traffic there, granted the right 'of way to defendant’s truck, which was travelling at an estimated speed of between fifteen and forty miles an hour. At that intersection the truck struck the left portion of such ambulance, which by actual measurement skidded in a circular manner between 20 and 24 feet on the inside of the circle and 40 and 45 feet on the outside thereof.

By assignments of error plaintiff maintains that “the court committed error in admitting evidence offered by the defendant which was duly excepted to by the plaintiff”; that “the court erred in excluding evidence offered by the plaintiff to which exclusion plaintiff fully excepted”; that “the court erred in its general charge to the jury after argument which was duly objected and excepted to by the plaintiff”; that “the verdict of the jury is not sustained by the law and the evidence”; that the “verdict of the jury is clearly and manifestly against the weight of the evidence”; that “the judgment rendered upon the verdict of the jury was not sustained by sufficient evidence”; that “the judgment of the court rendered upon the verdict of the jury is contrary to law”; and that “the court erred in overruling plaintiff’s motion for new trial.”

As applicable, §6397-44 GC, provides:—

“ (a) Upon the approach of an emergency vehicle, when the driver is giving audible signal by siren, exhaust whistle, or bell, the driver of every other vehicle shall yield the right-of-way and shall immediately drive to a position parallel to. and as close as possible to, the edge or curb of the highway clear of any intersection and shall stop and remain in such position until the emergency vehicle has passed, except when otherwise directed by a police officer.
“(b) Upon the approach of an emergency vehicle, as above stated, the operator of every street car or trackless trolley shall immediatly stop such car clear of any intersection and keep it in such position until the emergency vehicle has passed, except when otherwise directed by a police officer.
“(c) This section shall not operate to relieve the driver of an emergency vehicle from the duty to drive with due regard for t'he safety of all persons and property upon the highway.”

As applicable §6307-4 GC, provides:—

“(a) The driver of any emergency vehicle when responding to an emergency call upon approaching a red or stop signal or any stop sign shall slow down as necessary for safety to traffic but may proceed cautiously past such red or stop sign or signal with due regard for the safety of all persons using the street or highway.”

We find no error prejudicial to plaintiff in admission of evidence in the respect charged by plaintiff.

Plaintiff maintains that the trial judge erred to his prejudice in refusing to admit in evidence testimony of the operator of a truck which was following defendant’s truck.

Plaintiff made no proffer of the rejected testimony Therefore we determine that the trial judge did not err to plaintiff’s prejudice in the rejection of such testimony.

In support of his contention that the trial judge erred to his prejudice in “highly stressed (stressing) the issue of (plaintiff’s) contributory negligence” plaintiff maintains “there was absolutely no evidence to sustain that averment and the subsequent charge to the jury on that issue”; that “nowhere is there any evidence that the plaintiff could have been negligent in any way.”

We find sufficient evidence to warrant the court in charging on contributory negligence.

Further the plaintiff contends that the trial judge erred to his prejudice in charging the jury as follows:—

“You will use these measuring sticks and apply them to the evidence and finally make your determination of whether or not the defendant through its truck driver was negligent unless you find that the plaintiff has established negligence on the part of the defendant by the greater weight of the evidence, in that case the plaintiff cannot recover in this case and your verdict must be for the defendant.”

Plaintiff contends that the trial judge did not cure such erroneous charge by charging the jury:—

“On the other hand, if you do find that the plaintiff has established negligence on the part of the defendant by the greater weight of the evidence, then the plaintiff prevails on the first issue which I have been discussing with you and you will then turn your attention to the next or second issue or controverted question of fact between the parties and that one is whether or not any negligence on the part of the defendant was a proximate cause of the collision and plaintiff’s injuries.”

Finally plaintiff contends that the trial judge charged insufficiently and erroneously on the degree of care defendant was bound to exercise in the situation “and practically overlooked the probability of defendant’s negligence.”

Obviously, as punctuated by the court reporter the quoted portion of the charge beginning “you will use these measuring sticks” and ending with the words “for the defendant.” is meaningless without a period placed after the word “negligent,” which as punctuated by a period closed the first sentence.

In the charge given by the trial judge there appears no punctuation after the word “negligent,” and read with such punctuation the charge is a correct and unambiguous charge of the law, with which this court will not interfere.

Of course this court could sua sponte order the bill of exceptions returned to the f trial judge for diminution, but the error of the court reporter in punctuating the charge of the trial judge is so clear that we shall interpret the charge as indicated, and interpreting it that way find no error in the portion of the charge under discussion, nor as the result of a careful perusal of the charge in any other portion thereof. Counsel for plaintiff, at the conclusion of the charge, failed upon inquiry to suggest any correction of the charge

Since plaintiff states by brief that “items 1, 2, 6 and 7 of plaintiff’s assignments of error are so closely related as far as the plaintiff’s contentions are concerned, that we will consider them in their entirety” this court will dispose of those assignments of error as one in this opinion; and state that since the general verdict of the jury was not tested by interrogatories it is undeterminable upon the evidence whether the jury found defendant negligent or plaintiff guilty of contributory negligence, either of which issue is in our opinion supported by the evidence.

The judgment of the court of common pleas is affirmed.

GRIFFITH, PJ, PHILLIPS & NICHOLS, JJ, concur.


text:
    STANDARD “TOTE” Inc., Appellant, v. OHIO STATE RACING COMMISSION, Appellee. MIDWEST TOTALIZOR COMPANY, Appellant, v. OHIO STATE RACING COMMISSION, Appellee. OHIO SPORTS ENTERPRISES, Inc., Appellant, v. OHIO STATE RACING COMMISSION, Appellee. RIVER DOWNS OF OHIO, Inc., Appellant, v. OHIO STATE RACING COMMISSION, Appellee. ASCOT PARK JOCKEY CLUB, Appellant, v. OHIO STATE RACING COMMISSION, Appellee.
    Common Pleas Court, Franklin County.
    Nos. 189156, 189157, 189158, 189159, 189160.
    Decided May 1954.

      E. G. Fickell, Columbus, for appellants, Standard “Tote” Inc. and Midwest Total. Co.
    Holbrock & Bosch, Hamilton, for appellant, Ohio Sports Enterprises, Inc.
    Charles A. Schwenker, Arthur L. Rowe, Columbus, for appellant, River Downs of Ohio.
    Hershey, Hatch & Browne, Akron, for appellant, Ascot Park Jockey Club.
    C. William O’Neill, Atty. Geni., Hugh A. Sherer, Asst. Atty. Geni., Columbus, for appellee, Ohio State Racing Commission.
   OPINION

By BARTLETT, J.

1. THE PROCEDURAL REQUIREMENTS IN ADOPTING AND AMENDING RULES 41, 49, 50 and 257, HAVE BEEN SUBSTANTIALLY COMPLIED WITH BY THE STATE RACING COMMISSION, IN ITS ORDER OF JANUARY 12, 1954, RELATING TO THE ADOPTION AND AMENDMENT OF THE AFORESAID RULES.

2. THAT SAID RULES 41, 49, 50 and 257, APPEALED FROM IN THE AFORESAID CASES, REPRESENT A REASONABLE AND LAWFUL EXERCISE OF THE POWERS OF SAID STATE RACING COMMISSION; THAT SAID RULES ARE VAT.TP; AND THAT THE ORDER OF SAID COMMISSION IN ADOPTING AND AMENDING SAID RULES, IS HEREBY AFFIRMED

Each of these cases constitute an appeal from an order of the Ohio State Racing Commission regarding adoption and amendments of Ohio Rules of Racing made on January 12, 1954. Appellants each filed with the Ohio State Racing Commission notice of appeal on January 25, 1954; and on said date each of the appellants filed in this court their respective appeals in the foregoing cases, which appeals were from the Journal Entry of Order of the Commission issued January 12, 1954, entitled “In Re: The Adoption, Amendments and Rescission of Certain Ohio Rules of Racing.”

These appeals are prosecuted under the provisions of the Administrative Procedure Act (Chapter 119, Revised Code); and involve two issues, one procedural and the other substantive.

These appeals raise the following questions:

(1) As to proposed rules 41, 49, 50 and 257, is the Commission’s order invalid for want of compliance with the provisions of §119.03 R. C., relative to public notice of the hearing at which the proposed rules were considered?
(2) Finally, are the proposed rules 41, 49, 50 and 257 unlawful and unreasonable? In other words, is the rule-making power conferred on the Commission in §3769.03 R. C., a constitutionally valid delegation? And if so, are these four proposed rules within the scope of the Commission’s rule-making power?

Sec. 119.02 R. C. of the Administrative Procedure Act, provides:

“Every agency authorized by law to adopt, amend, or rescind rules shall comply with the procedure prescribed in §119.01 to §119.13 inclusive, R. C., for the adoption, amendment, or rescission of rules. Unless otherwise specifically provided by law, the failure of any agency to comply with such procedure shall invalidate any rule or amendment adopted, or the rescission of any rule.”

The pertinent part of §119.03 R. C., of said Administrative Procedure Act is as follows:

“In the adoption, amendment, or rescission of any rule an agency shall comply with the following procedure:

“(A) Reasonable public notice shall be given at least thirty days prior to the date set for a hearing, in such manner and form and for such length of time as the agency determines and shall include:
“(1) A statement of the agency’s intention to consider adopting, amending, or rescinding a rule;
“(2) A synopsis of the proposed rule, amendment, or rule to be rescinded or a general statement of the subject matter to which such proposed rule relates;
“(3) The date, time, and place of a hearing on said proposed action. In addition to such public notice the agency may give whatever other notice it deems necessary. Bach agency shall adopt a rule setting forth -in detail the method which such agency shall follow in giving public notice as to the adoption, amendment, or rescission of rules.
“(B) The full text of the proposed rule, amendment, or rule to be rescinded shall be filed with the secretary of state at least thirty days prior to the date set for the hearing and shall be available at the office of the agency in printed or other legible form without charge to any person affected by such proposal. Failure to furnish such text to any person requesting it shall not invalidate any action of the agency in connection therewith.
“(C) On the date and at the time and place designated in the notice, the agency shall conduct a public hearing at which any person affected by the proposed action of the agency may appear and be heard in person, by his attorney, or both, may present his position, arguments, or contentions, orally or in writing, offer and examine witnesses, and present evidence tending to show that said proposed rule, amendment, or rescission, if adopted or effectuated, will be' unreasonable or unlawful.
“At such hearing a stenographic record of the testimony and rulings on the admissibility shall be made at the expense of the agency.
“* * * (D) After complying with divisions (A), (B) and (C) of this section, the agency may issue an order adopting such proposed rule, amendment, or rescission, or revision thereof, consistent with the public notice * *

The notice actually published is shown by a copy on page 5 of the record, as well as on page 7 of the exhibits attached thereto, the pertinent part of which is as follows:

“(Published November 6, 1953) “Public Notice”
“Pursuant to Rule 303, Ohio Rules of Racing, notice is hereby given that the Ohio State Racing Commission will hold a public hearing * * * to consider adopting, amending or rescinding the following numbered Rules of Racing: * * * Rules 41, 49, 50 * * * relating to Permits to Race; * * * Rules 256 and 257, corrupt Practices * * *
“Ohio State Racing Commission
Edward Corrigan, Acting Secretary.”
On the subject of the published notice required by §119.03 R. C., supra, it is conceded by the very able counsel for the Commission, that the notice in the instant case does not amount to a synopsis, but- claims it is sufficient to constitute “a general statement of the subject matter to which such proposed rule relates.”

Counsel for appellants stress the alleged inadequacy of the published notice because it lacks a “synopsis” as required by such statute. Actually this statute (§119.03 R. C.) does not require such synopsis, for the use of a synopsis, is only one of the alternatives that may be used by an agency. (Emphasis ours.) The language of this statute after referring to such synopsis is followed by the disjunctive “or,” thus making it optional that in the words of the statute itself, “a general statement of the subject matter to which the proposed rule relages (relates)” may be substituted for such synopsis.

As stated by counsel for the Commission, the appellants for some years have been in the business of operating race tracks, or businesses very closely associated with such operation, and they may, therefore, be presumed to know in complete detail the provisions of existing rules 41, 49, 50 and 257. With such knowledge, a reference in the public notice to these rules by number and subject matter, is much more meaningful to them than persons not interested in racing. It would seem, therefore, as to the appellants there was a substantial compliance with the statute; and this view is supported by the fact appellants were represented in such hearing by counsel, who offered considerable evidence, comment and argument addressed to details of the proposed rules.

Finally, when a party is actually present at a hearing, participates therein by offering evidence and arguments, and has ample opportunity to be heard on amendments to a rule or rules, such party cannot justly complain that the public notice of the hearing did not strictly comply with the statute. State ex rel v. Railway, 69 Fla. 480.

Counsel for appellant River Downs of Ohio, Inc. in oral argument, notwithstanding their very active part in the public hearing, insisted that substantial compliance with the statute on the public notice was not sufficient, and the strict compliance therewith was necessary. In their brief, however, they cite Board of Education v. Briggs, 114 Oh St 415, to the effect that “The provisions of §5849-9c GC, enacted for the benefit and protection of the taxpayer, are mandatory and must be substantially complied with.” (Emphasis ours.)

Said §5649-9c GC, prescribed the form on the ballot used in submitting a tax levy to the electors of the district.

Counsel for appellant, River Downs of Ohio, Inc., in their brief, cite 39 Am. Jur. Section 21 on Notice and Notices in part as follows:

“No one is chargeable with a constructive notice of a statement * 1 * in a newspaper in the absence of a statute expressly authorizing such publication * * * unless it be seen by the person to be charged. In other words, the notice is either actual or is inoperative * * *.”

The same appellant also cites 30 O. Jur., Section 32, p. 241, under title “Notice.”

“* * * When the form and manner of the notice are not prescribed, actual notice is generally required * *

This appellant also cites Moore v. Given, 39 Oh St 661, Syl. 2:

“When a statute required notice of a proceeding but is silent concerning its form or manner of service, actual notice will alone satisfy such requirement.”
“Of course when a person knows of a thing he has ‘notice’ thereof, as no one needs notice of what he already knows. In other words, actual knowledge supersedes a requirement of notice.” 39 Am. Jur. Notice and Notices, p. 234; In Re Hamlin, 54 Abs 257; 30 O. Jur. Notice, Sec. 12, p. 18, 1953 Supp., citing Vol. 2 Pomeroy’s Equity Jurisprudence, 5th Ed., Notice, p. 502.

In the instant case appellants made no request at the hearing for a continuance in order that they might submit further evidence and argument on the rules actually proposed at the meeting in which they participatéd actively, and the inference is that the published notice and the copy of the full text of the proposed rules available to them in the Secretary of State’s office were such that they did not feel the need of such a continuance.

In the briefs of appellants, Ohio Sports Enterprises, Inc. (p. 4) and River Downs of Ohio, Inc. (p. 13), it is claimed that the rule as adopted is invalid because it did not conform verbatim with the drafts on file in the Secretary of State’s office. Sec. 119.03 R. C., expressly provides:

“(D) After complying with divisions (A), (B), and (C) of this section, the agency may issue an order adopting such proposed rule, amendment, or rescission, or revision thereof, consistent with the public notice * * (Emphasis ours.)

Division (B) requires the full text of the proposed rule, amendment, * * * to be filed with Secretary of State, so the Commission is expressly authorized at its hearing to revise the text filed under division (B). Such an argument completely ignores the fundamental reason for the public hearing, designed to afford interested parties the opportunity to present evidence and arguments to the agency concerned for the purpose of securing a revision of the rule to eliminate objectionable features.

It appears to the Court that the claim of the appellants that the Commission’s order adopting said rules, was invalid for want of compliance with §119.03 R. C., relative to the public notice of the hearing at which the proposed rules were considered, is without merit, and must, therefore, be disregarded. In other words, the record shows a substantial compliance with the statutory provisions relating to the promulgation of the rules in question, and the appellants have no right to complain that such provisions were not strictly complied with.

It is argued by certain of the appellants that the statute (§3769.03 R. C.) which confers power on the Commission to “prescribe conditions” under which horse racing may be conducted purports to confer arbitrary power because it sets no guides or standards.

This contention of the appellants is completely refuted by the 7th paragraph of the syllabus in Matz v. Curtis Cartage Co., 132 Oh St 271, which is as follows:

“As a general rule a law which confers discretion on an executive officer or board without establishing any standards for guidance is a delegation of legislative power and unconstitutional; but when the discretion to be exercised relates to a police regulation for the protection of the public morals, health, safety or general welfare, and it is impossible or impracticable to provide such standards, and to do so would defeat the legislative object sought to be accomplished, legislation conferring such discretion may be valid and constitutional without such restrictions and limitations.”

In the case of Weber v. Board of Health, 148 Oh St 389, the ruling in the Matz case, supra, was expressly approved, the second paragraph of the syllabus is as follows:

“Where a law relates to a police regulation for the protection of public health, and it is impossible or impractical to provide specific standards, and to do so would defeat the legislative object sought to be accomplished, such law is valid and constitutional without providing such standards. (Paragraph seven of the syllabus in Matz, Admr., v. J. L. Curtis Cartage Co., 132 Oh St, 271, approved and followed.)

Horse racing and legalized wagering thereon, are subjects with respect to which police regulations for the protection of the public safety, morals, and general welfare, are not only proper but are an absolute necessity. Since this is a field in which potential evils abound, the General Assembly should not be expected to anticipate the manifold practices and complex arrangements which involve opportunities for dishonest dealing that should be guarded against so as properly to protect the public.

For the General Assembly to undertake to properly prescribe standards, might defeat its own purpose. The nature of the subject to be regulated is such as to suggest the reason for the broad regulatory powers conferred on the Commission; and the suggestion of the appellants that the rule-making power in this instance is wholly invalid, ignores the plain import of the Ohio decisions in the field of public administrative law. The very essence of the rule-making power is found in the authorityy to impose by rules restrictions or burdens in addition to those imposed by state, provided the rules do not subvert the statutes imposing such power. 42 Am. Jur. 353, 354, Sec. 49.

“Under the provisions of the Horse Racing Act (§1079-1 to §1079-15 GO, the State Racing Commission is empowered to prescribe rules and regulations governing parimutuel betting.” In re: Adoption of certain rules of the Ohio Racing Commission, 90 Oh Ap 469.

In this case the Court of Appeals of this district upheld the judgment of the Trial Court in the case of Beulah Park Jockey Club v. Racing Commission, No. 178539, in which the Court of Appeals refers to the “well considered” opinion of Clifford, J. Motion to certify was denied by the Supreme Court, January 23, 1952.

It is thus the established law in Ohio, under the Beulah Park Jockey Club case, supra, that the Commission has not only the power “to regulate the actual running of the horses,” but also, “The Commission has power under the Horse Racing Act to regulate parimutuel wagering”’ In other words, said last mentioned case is authority for the legal proposition that the. rule-making power conferred on the Commission by §3759.03 R. C., is a valid delegation of power.

This being true, the next question must be, are the four Rules in question, beyond the scope of the Commission’s rule-making power?

“The purpose of the General Assembly in providing for administrative hearing's in particular fields was to facilitate such matters by placing the decision on facts with board or commissions composed of men equipped with the necessary knowledge and experience pertaining to a particular field.” Turner, J., p. 224 in the case of Farrand v. Medical Board, etc., 151 Oh St 222.

Whether the Ohio Horse Racing Act (§3769.01 to §3769.13 R. C.), prescribes a wise plan is not for the courts to decide, so long as the act is constitutional; questions of policy are solely for the General Assembly to determine; and such act provides the General Assembly’s plan to regulate and control through the Commission, not only the actual running of the horses, but, also parimutuel wagering on such horse races. State ex rel. Williams v. Glander, Tax Commr., 148 Oh St 188.

The Courts must exercise care not to place themselves in the position of usurping such “regulation and control” and' should carefully avoid hampering the agency duly authorized by constitutional enactment to provide such regulation and control; otherwise the Courts may find themselves responsible for the de-control of such horse racing and such wagering thereon.

Counsel for the appellant, Ascot Park Jockey Club, in his reply brief after quoting from Judge Clifford’s opinion in the Beulah Park Jockey Club case, has this to say: (p. 8):

“It is crystal clear that the basis of Judge Clifford’s conclusion as to the extent of the Commission’s rule-making power is the legislative intention to regulate wagering.”
“It is not impertinent to observe that the quality of any argument or judgment, whether it is asserted by a litigant or declared by a Court, is no better than the logic supporting its foundation.
* * * *
“Now can any logical conclusion be drawn as to the extent of a board’s rule-making power just from the legislative intent to regulate? A mere statement of the question shows the invalidity of any such conclusion.”

Let us quote from the. Per Curiam opinion of the Court of Appeals of this District as its reaction to Judge Clifford’s opinion, (90 Oh Ap 469, 470):

“We have been furnished a copy of the well considered opinion of the Judge of the Trial Court in which he discusses all the determinative issues raised. We have carefully examined the entire record and considered questions raised in the briefs of counsel and are in accord with the judgment and the reasons assigned by the Trial Court. We do not deem it necessary to write an extended opinion. In our opinion the judgment is correct and it is hereby affirmed.”

It is thus the established law in Ohio that the rule-making power of the Racing Commission is not limited to the power “to regulate the actual running of the horses,” but that “the Commission has power under the Horse Racing Act to regulate pari-mutuel wagering.”

Regulation of parimutuel wagering is plainly a regulation of the primary and most important activity of permit holders; and it follows that if their activities in this field can be regulated by rule, then similar regulation in activities incidental thereto cannot be deemed to be invalid.

Appellants argue that the General Assembly by imposing certain restrictions on permit holders has thereby evinced’ an intent that such restrictions were to be exclusive, thus denying the power to impose others by rule. In fact appellants (Brief pages 17, 18) claim the Commission’s power is limited to regulation of “the physical act of horse rasing.” This same argument was advanced in the Beulah Park Jockey Club case, supra, but was expressly repelled by Judge Clifford’s ruling in that case.

Statutory provisions which authorize the carrying on of a gambling business should be strictly construed and every reasonable doubt so resolved as to limit the powers and rights claimed under its authority. 24 Am. Jur. 404, Sec. 9.

Let us now examine the several rules appealed from herein.

Rule 41. This rule as adopted by the Commission would limit racing on any day to eight races at any track except Saturdays, holidays, and in certain instances where special permission is granted.

The statute makes no provision as to the number of races a permit holder may conduct on any one day. This rule cannot be said to “subvert the statute” in this respect, and, therefore, the Commission has the power to impose restrictions beyond those of the statute. The Beulah Park decision, supra, recognizes the statute as an exercise of police power, as well as a revenue act. In any event, the statute must be strictly construed as to the permit holder’s privileges thereunder. 24 Am. Jur. 404, Sec. 9, supra.

Rule 49. This provides for the submission of certain statistical data, reports of operations, attendance, and other matters by permit holders to the Commission. The principal change in this rule is to eliminate the following provision in the existing rule:

“* * * Such statement shall be used only for the information of the Commission.”

The primary purpose cf the change in Rule 49 is to conform to the judicial decisions in Ohio, that “public records are the people’s records,” and as such are open to inspection at all proper times for all proper purposes. 35 O. Jur. p. 45, Sec. 41. After all, the rule represents one of the most common and most exercised uses of the administrative rule-making power.

Rule 50. Certain of the appellants assert that “the Commission has absolutely no power whatever to supervise or regulate pari-mutuel wagering,” principally because they claim the statute authorizes two systems of wagering, i. e., either the pari-mutuel or the certificate system of wagering. The Beulah Park decision, supra, rejected this view and plainly approved the concept that the General Assembly was concerned with one system only, and the Commission might properly require the use of totalizators at such tracks. The hyphenated word “pari-mutuel” has been construed to be identical with the so-called “pari mutuel system.” Wise v. Delaware Steeplechase and Race Assn. 18 Atl. (2d) 419; Mattson v. Hollywood Turf Club, 225 Pac. (2d) 276; Rohan et al. v. Detroit Racing Assn. et al. 22 N. W. (2d) 433, 314 Mich. 326; and Streeper v. Auditorium Kennel Club, et al, 180 Atl. 212, 13 N. J. Misc. 584. It follows that the Commission may designate the type of totalizator designed to protect the public.

The Beulah Park decision, supra, recognizing the statute as an exercise of police power, as well as a revenue act, is also applicable to this rule. The strict construction against claims of permit holders is also applicable. 24 Am. Jur. 404, supra.

It is also argued by certain of the appellants that the rule requires permit holders to use a certain approved type of totalizator whose Daily Average Handle was in excess of $200,000 while permitting those whose said Handle was less to use their own judgment as to the type of totalizator, they will use.

They assert this is class legislation, never intended by the General Assembly; and that the rule is not of uniform operation, since it does not apply to all permit holders.

It is the well settled law that the constitutional requirements of equal protection and uniform application of the laws may be based on reasonable classifications. Rapid Transit Corp. v. New York, 303 U. S. 573, 578; Yee Bow v. Cleveland, 99 Oh St 268. This Court cannot say the classifications resorted to under Rule 50 are not natural and reasonable in view of the problems involved and the purpose of the rule to afford the public protection.

The argument is also advanced by certain of the appellants that Rule 50 is invalid as its enforcement would interfere with provisions of existing contracts of the permit holder for the service of certain totalizators. The courts recognize the administrative rule-making power to have the force and effect of law. Matz v. Cartage Co. and Weber v. Bd. of Health, supra. It is well established that the constitutional protection of the obligations of contracts is necessarily subject to the police power of the state, and that legislation in the exercise of such police power “will be upheld by the courts, although it incidently destroys existing contract rights.” 12 Am. Jur. 54, Sec. 421.

Rule 257. The change in this rule is seen in the requirement that permit holders shall employ a veterinarian and a chemist, subject to the approval of the Commission, to take specimens of urine and saliva and to analyze such specimens at the expense of the permit holder to detect doping.

If this Rule is invalid, then it follows that the rules providing for stewards, patrol judges, placing judges, and the photo finish camera are equally invalid.

The elimination of these safeguards to the betting public would reduce racing in Ohio to a sorry state. Such absurd consequences should be avoided in the interpretation of statutes, if reasonably possible. 37 O. Jur. 643, 644, Sec. 352. Any rule which is for the insurance of wholesome and honest racing should be welcome, not only, by those engaged in that business and its incidental phases; but should receive a favorable interpretation by the courts. Short-sighted reception of such regulations can lead only to the killing of the goose that laid the golden egg, both as to the state’s revenue, as well as the Commissions of the race track interests.

The Court accordingly finds that the State Racing Commission has the power, under the Horse Racing Act, not only to regulate and control “the conditions under which horse racing shall be conducted,” but also, “to regulate and control pari-mutuel betting” thereon. The Court further finds that Rules 41, 49, 50 and 257, appealed from represent a reasonable and lawful exercise of the powers of the Commission; that said rules are valid; and that the order of the State Racing Commission in adopting said four rules aforesaid is affirmed. Entry accordingly, reserving the exceptions of counsel for each of the appellants.


text:
    YOUNGSTOWN (City), Plaintiff-Appellee, v. KOCHIS, Defendant-Appellant.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3589.
    Decided April 17, 1953.
    I. Freeman, Asst. Law Director, Youngstown, for plaintiffappellee.
    Manchester, Bennett, Powers & Ullman, Youngstown, for defendant-appellant.
   OPINION

Per CURIAM.

While driving a Chevrolet truck on Shirley Road in Youngstown on January 10, 1953, for his employer, for whom he testified he was making a delivery on Lake Park Road near Midlothian Boulevard, defendant was arrested for, charged with, and found guilty of violating Section 25.128A of the Revised Ordinances, as amended by Ordinance No. 55521, which, as applicable, provides:—

“Section 1. No person shall drive any vehicle designed or used for the transportation of goods, wares, or merchandise upon Shirley Road, from Poland Avenue to .Midlothian Boulevard, except while receiving goods or making deliveries along said street, and then only by entering and leaving said street by the nearest intersecting street.”

We conclude from the evidence reviewed that the ordinance for the violation of which defendant was convicted was not discriminatory nor unconstitutional.

Judgment affirmed.

GRIFFITH, PJ, PHILLIPS & NICHOLS, JJ, concur.


text:
    CLEVELAND TRUST CO., Appellant, v. BECK et, Appellees.
    Ohio Appeals, Ninth District, Lorain County.
    No. 1257.
    Decided April 30, 1952.
    Daniel P. King, for appellant.
    Virgil C. Burgett, Lorain, for appellee.
   OPINION

By DOYLE, J.

The facts in the case before this court, appealed on questions of law from the Court of Common Pleas of Lorain County, may be succinctly stated as follows:

In the year 1931, the Cleveland Trust Co. obtained a judgment against Rose and C. S. Beck (husband and wife), and Mathew Jackson, on their defaulted promissory note, and on its prayer obtained the foreclosure of a real estate mortgage which had been given to secure the note. After distribution of the proceeds from the judicial sale of the property, there was left owing to the Trust Co. the sum of $541".37, with interest at 8% from March 21, 1931. This so-called deficiency judgment was allowed to become dormant under the statutes of this state (§11663 GC). It was, however, not the kind of judgment which comes within the purview of §11663-1 GC (a statute limiting the time to two years for enforcing a deficiency judgment rendered upon an indebtedness secured by a mortgage on a dwelling or home site. Montalto v. Yeckley, 138 Oh St 314).

The Trust Co., in the year 1951, filed a motion in the same case asking for an order of revivor of the judgment, after setting out the amount of the deficiency. To this motion, an answer was filed by Rose Beck, one of the judgment debtors, in which, after admitting the unpaid judgment against her, pleaded that the judgment of 1931 was included in and became the third cause of action in another action filed years later in the same court, in which a judgment was entered on another note secured by a mortgage on different real estate, which mortgage was foreclosed and the proceeds applied to a partial payment of the judgment on the note. She further pleaded that this foreclosure action came within the provisions of §11663-1 GC, supra, because it was a foreclosure and sale of a dwelling house, and that in view of the fact that “more than two years have expired since the date of the confirmation of the sale * * *, and that the deficiency judgment set forth in case No. 30364 (the first action above set forth involving nonresident property) was merged in the deficiency judgment in case No. 37173” (the foreclosure action involving the residential property), the deficiency judgment now sought to be reversed is “unenforceable and uncollectible, and the same became res adjudicata.” The pleading concludes by a prayer for an order restraining any attempted enforcement of the said judgment, and for an order denying the motion for revivor.

In analyzing the strategy of the Trust Co., it seems obvious that its purpose in pleading the deficiency judgment obtained in its first foreclosure action against Mrs. Beck in its second foreclosure action, was to establish its claim as a general creditor and to participate in the proceeds of the sale if there were funds remaining after paying in full those entitled to preference, (The fact is that the proceeds of this sale were insufficint to pay the first liens.)

If a judgment had actually been entered against Mrs. Beck in the second action, predicated on the deficiency judgment in the first action, this court would then have the problem of deciding whether the first judgment “merged” into the second one, and, if so, whether the first judgment could now be revived. Such, however, is not the case before us.

Although there was pleaded, as a third cause of action in the second case, the deficiency judgment of 1931, the record discloses no finding of an amount due, or judgment entered. It thus appears that there was no .judgment rendered into which the first deficiency judgment could have merged if such a legal step is possible under the law of this state.

While it would be of great academic interest to research the legal question of the merger of a judgment not subject to §11663-1 GC, into a subsequent judgment in a foreclosure action on property subject to the provisions of §11663-1 GC, and to determine whether the statute would bar after two years the enforcement of such first judgment, it is not the province of a court to resort to such legal exploration if the facts do not so justify.

It is our conclusion that the trial court erred in its denial of the motion, and the judgment will be reversed and the cause remanded.

Reversed and remanded.

HUNSICKER, PJ, STEVENS, J, concur.