author: By HORNBECK, J:

text:
    KOPELOVE IRON & METAL COMPANY, and TRAVELERS FIRE INSURANCE CO., Plaintiffs-Appellants, v. LAWSON, Defendant-Appellee.
    Ohio Appeals, Second District, Montgomery County.
    No. 2324.
    Decided April 5, 1955.

      David H. Bailie, Dayton, for plaintiffs-appellants.
    Altick & McDaniel, Dayton, By Francis S. McDaniel, of Counsel, for defendant-appellee.
   OPINION

By HORNBECK, J:

This is an appeal on questions of law from a judgment in favor of defendant-appellee, Lawson, entered on a verdict of a jury in his behalf. The facts are that plaintiff, Kopelove Iron & Metal Company (which we hereinafter call Kopelove), was operating its tractor-trailer in a northerly direction on Route 49 in Montgomery County, Ohio. A driver of defendant, Commercial Motor Freight Company (hereinafter referred to as Commercial), at or about the same time, was driving a tractor and trailer east on Route 40 approaching the intersection of that route with Route 49; defendant Lawson, at or about the same time, was driving his Chevrolet south on Route 49 approaching the intersection. The tractor-trailer of plaintiff, Kopelove, had practically come to a stop at a distance of at least 15 feet from the intersection to the south on Route 49, when the truck of Commercial moved into the intersection, veered to its right, crossed Route 49 and struck the truck of plaintiff company, causing substantial damage. Plaintiff insurance company was the insurer of plaintiff Kopelove by a hundred dollar deductible policy, and paid to that company the loss covered by the policy. Kopelove and the insurance company, as subrogee, were the parties plaintiff. The cause went to trial against defendant Lawson, only, the other defendant having been theretofore dismissed as a party defendant.

It was the claim of the plaintiffs that the collision between Commercial and Kopelove was caused by the negligence of defendant Lawson, in moving into the intersection against a red light, thus causing the Commercial Motor Freight Company truck to veer from its line of travel to avoid a collision with defendant Lawson, and in so doing, collided with the Kopelove truck.

Plaintiffs charged defendant Lawson with three acts of negligence: One, failing to stop for a red light at the intersection of Routes 40 and 49; two, failing to maintain a lookout to the west on Route 40, failure to look and to see the approaching tractor-trailer of Commercial and failing to stop and divert the course of his car; three, traveling at a speed of 60 miles per hour.

Defendant answering, denied any negligence on his part and averred that the driver of the truck of Commercial failed to stop for a red light at the intersection.

There was direct conflict on the issue as to the failure of defendant to stop at the intersection when the red light was against him. Kopelove’s driver testified that the red light was against Lawson. In this he was supported by the driver of Commercial truck and a disinterested witness. Defendant testified that he had the green light and in this he was corroborated by a passenger riding with him in his automobile. It was admitted that defendant had stopped in the intersection at about the middle thereof. There was difference in testimony as to the exact location of defendant’s car in the intersection when it stopped, whether it extended over and beyond the center line and into the east bound lane of Route 40. It was the contention of plaintiff, and the testimony of the driver of Commercial truck, that defendant’s car was so far into the lane of travel of Commercial truck that its driver did not have room on the highway, Route 40, to pass. Defendant contended and testified that there was fully one-half of the highway open to Commercial’s driver, and that he did pass in front of defendant’s car before he veered from his path and collided with plaintiff Kopelove’s truck.

Appellant assigns six errors. One, in the general charge; two, the refusal to give plaintiff’s Special Charge No. 4 before argument; three, refusal to give plaintiff’s Special Charge No. 5 before argument; four, the verdict of the jury is against the manifest weight of the evidence; five, improper admission of testimony on behalf of defendant; six, improper comment by the court on admission of testimony.

Upon the first assignment of error it is urged that the court injected an issue into the case which was not raised by the pleadings and evidence, namely, the negligence of the driver of Commercial’s truck. An examination of the answer discloses a rather unusual form of pleading. It merely avers that the vehicle driven by the driver of Commercial failed to stop for a red light at said intersection It does not charge that this act of negligence was the sole cause of the collision or, indeed, that it was a contributing cause although it denies any negligence of defendant. However, no objection was interposed by plaintiffs to the form of the pleading. Clearly there was injected into the case, by the pleadings and the evidence, the question whether or not the driver of Commercial’s truck drove into the intersection against a red light. When the trial judge was required to charge the jury, in the light of this answer, he was met with the holding in Montanari v. Hayworth, 108 Oh St 8, and many other cases, to the effect that an allegation like that asserted here, does not place the burden of proof as to such allegation upon the defendant. The court would have been justified had he given no charge whatever respecting the care enjoined upon the driver of the Commercial truck. However, we cannot say that in view of the averment of the answer respecting the failure of Commercial truck driver to observe the red light that it was prejudicial to comment to the extent to which the court discussed the subject in the general charge.

The charge could have been more specific and possibly more helpful' to the jury had it definitely instructed the jury that the determinative question was whether or not negligence against defendant was proven in any of the particulars charged, and if so, was such negligence a a proximate cause of the collision. If the defendant was negligent in any particular asserted, proximately causing the collision then without respect to negligence, if any, of the driver of Commercial’s truck, the plaintiff was entitled to a verdict. The doctrine of intervening cause could well have been carried into the general charge, but the failure to do so was not an error of commission as counsel for plaintiff did not suggest any such instruction.

Objection is made to the charge respecting an emergency with which the driver of Commercial’s truck was confronted. This charge could not have been prejudicial to the plaintiff.

The second assignment relates to plaintiff’s Special Charge No. 4:

“I charge you that the plaintiff is not negligent and is entitled to recover against the defendant if you find that the defendant was guilty of negligence which directly contributed in even the slightest degree to proximately cause the accident and plaintiff’s damage.”

The plaintiff, Kopelove, was entitled to the instruction that it was not negligent. The infirmity in the charge is that it does not restrict .the finding of the jury to any one or more of the specifications of negligence asserted in the petition.

The third assignment relates to plaintiff’s Special Charge No. 5:

“I charge you that it is not necessary for the automobile of Lawrence L. Lawson to have contacted the tractor of Kopelove Iron & Metal Company or the tractor of Commercial Motor Freight Company of Indiana, Inc., for the plaintiff to be entitled to recover from the defendant, Lawrence L. Lawson.”

This charge in the form in which it was tendered may have been misleading in that it does not include the obligation on the plaintiff to prove the defendant negligent in one or more particulars as charged, and that such negligence was the proximate cause of the collision. These findings were essential and if found, then the language of the charge could properly have supplemented them.

Testing the verdict and judgment as being against the weight of the evidence and according to the jury the prerogative of weighing and evaluating the testimony, we cannot hold that this assignment is well made.

We find no merit in the fifth and sixth assignments of error. No objection was interposed to the observation of the court to which exception is now noted.

Although we have passed upon all errors assigned, and are not required to consider others, we may do so under the statute, §2505.21 R. C. Because this case presents a close question on the facts, it is manifest that any error in the charge affecting the respective rights of the parties might cause the jury to reach a verdict which otherwise it would not have returned. We therefore feel that we should express our opinion as to certain parts of the general charge which in our judgment were prejudicial to the appellants.

The trial judge charged the jury that the obligation of due care devolved upon both the plaintiff, Kopelove, and the defendant alike, and that the jury could find whether the driver of plaintiff, Kopelove’s truck or the defendant were at the time and place in the exercise of ordinary care. As we have heretofore stated, it is obvious from the record that plaintiff Kopelove’s driver was not negligent, and the jury should not have been given the privilege of determining that he was. At no time was he nearer to the intersection of Routes 49 and 40 than 15 feet. He was on his own proper side of the road. There is no view of the testimony which would permit an inference of any negligence on his part.

At the bottom of page 159 of the record, in the general charge, the trial judge inadvertently no doubt must have used the name of the plaintiff, Kopelove, when intending to mean the Commercial, because he speaks of their lawful use of the highway, the obligation of each to keep a proper lookout, to have checked or stopped their automobiles if they observed the approach of the other vehicle in time to do so, and to regulate speed, control the operation of their vehicles, sound an alarm, etc. In this connection it might be advisable to say nothing about the obligation of sounding an alarm, because it is not asserted as a specification of negligence.

The trial judge very properly and completely charged the specifications of negligence, and that if plaintiffs proved any one or more by a preponderance of the evidence, as a proximate cause of Kopelove’s damage, they could recover. However, and again, no doubt inadvertently, at the bottom of page 168 of the record in the charge the court said to the jury:

“The burden of proof is upon the plaintiffs, Kopelove Iron & Metal Company, and Travelers Insurance Company of Hartford, Connecticut, in order for them to recover; they must make out each and every element of negligence charged against defendant, Lawrence L. Lawson, in their amended petition by a preponderance of the evidence ”

Manifestly this is at variance with that part of the charge on the subject which was properly given to the jury, and puts a burden on plaintiffs which it was impossible for them under the evidence to meet.

Inasmuch as this case may be tried again we direct attention to the charge of the court, which could not have been prejudicial to the plaintiffs but which might, if there were a verdict for the plaintiffs, be prejudicial to the defendant. We refer to the specification of negligence that the defendant was driving his automobile at a rate of speed of 60 miles per hour. The court charged fully upon §6307-21 GC, respecting a rate of speed that is greater or less than is reasonable or proper. But as we read the record there is no proof whatever of any specific rate of speed at which the defendant was approaching and entered the intersection. Neither the pleadings nor the evidence support a charge under the statute.

For the reasons hereinbefore indicated we find that error intervened, to the prejudice of appellants, in the trial of this cause. The judgment will be reversed and cause remanded for a new trial.

We are cognizant of the difficulties with which the trial judge was confronted in charging the jury upon the factual developments in this case. It is evident that the plaintiffs were proceeding upon the theory that while the negligence of the defendant did not immediately cause the collision, because his car never came in contact with plaintiff Kopelove’s truck, his negligence was a contributing cause of the movement of Commercial wherein it veered from Route 40 and across Route 49, striking and colliding with plaintiff Kopelove’s truck. Counsel for appellants, having knowledge of the facts which would be developed in the evidence, could have been helpful to the trial judge by preparing one or more proper special charges presenting their theory as to proximate cause to be given to the jury before argument.

It is unfortunate that this case must be tried for the third time, but we cannot read the general charge without the conviction that it may have denied to the plaintiffs a proper presentation of the law controlling the deliberations of the jury.

MILLER, PJ, WISEMAN, J, concur.


source: Caselaw Access Project

author: By NICHOLS, J.

license: Public Domain

text:
    CRIST, Plaintiff-Appellee, v. CLORE, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 5257.
    Decided February 21, 1956.
    Wiles & Doucher, Columbus, for plaintiff-appellee.
    Ballard, Dresbach, Crabbe & Newlon, Columbus, for defendant-appellant.
    (NICHOLS and GRIFFITH, JJ, of the Seventh District, FESS, J, of the Sixth District, sitting by designation in the Second District.)
   OPINION

By NICHOLS, J.

This action was instituted in the Municipal Court of the City of CQldmbus, Ohio, by Rodney D. Crist, plaintiff, against William Clore, defendant, being one for damages growing out of an automobile collision, and was submitted to the court, without the intervention of a jury, upon the amended petition of plaintiff, the answer and cross-petition of the defendant and the reply of plaintiff.

The trial court found in favor of the plaintiff and rendered judgment against defendant in the sum of $497.94, from which judgment the defendant has duly appealed to this court on questions of law, assigning the following errors:

1. The Court erred in failing to apply the law as set forth in §6307-40 GC, to the facts presented in this case.

2. The Court erred in applying the law as set forth in the case of Connors v. Dobbs, 77 Oh Ap 247, to the facts presented in this case.

3. The Court erred in failing to find that the defendant-appellant had the right of way at the intersection of two unmarked streets when he was approaching from plaintiff’s right.

4. The Court erred in returning a verdict in this cause for the plaintiff-appellee which was not supported by the evidence.

5. Other errors of law committed by the Court below, which are manifest upon the face of the record and objected to by this defendant-appellant at the time of trial.

The trial judge made separate Findings of Fact and Conclusions of Law, and on appeal this Court extracts the following pertinent facts:

That on December 16, 1951, at the time of the collision, plaintiff was operating his motor vehicle in a northerly direction on Tremont Road in the City of Upper Arlington, Ohio, in the lane of traffic to the right of the center thereof, and defendant was operating his motor vehicle in a westerly direction on Northam Road, in the lane of traffic to the right of the center thereof: that these vehicles collided in the northeast quadrant of the intersection formed by Tremont Road and Northam Road; that there was no excessive speed on the part of either defendant or plaintiff; that prior to the date of the accident the City of Upper Arlington had adopted an ordinance designating Tremont Road a through street and had caused stop signs to be erected on Northam Road at said intersection after the date of such ordinance; that a traffic control was present at this intersection subsequent to the effective date of the ordinance but was removed by the municipal authorities prior to the date of the accident; that at the time of the accident there was no traffic control whatsoever at the intersection; that there was construction on Tremont Road northward from the intersection and prior to the accident barricades were present on Tremont Road at the edge of Northam Road but there were no such barricades at the time of the collision; that defendant had no knowledge that a traffic control light or stop signs had ever been erected and used at said intersection.

From the recited facts it is apparent that the sole factor determinative of the right of the plaintiff to recover in this action depended upon whether Tremont Road retained its character as a preferential highway after the City of Upper Arlington removed the stop signs from Northam Road before the collision, it being conceded that the city had by duly enacted ordinance previously declared Tremont Road a through street and had thereafter complied with the legislative proviso necessary to make the ordinance effective but had subsequently removed the stop signs from Northam Road while construction was in progress on Tremont Road.

There is no authority extant which holds that the ordinance alone is sufficient to effectively create a street of a municipality as a through thorofare. As stated by the Court of Appeals in Bartlett v. McDonald, 59 Oh Ap 85, 17 N. E. 2d, 284, the city was required to do two things before Tremont Road became a main highway, first, enact the ordinance designating that street a through highway, and second, erect legible stop signs along Northam Road, the intersecting street.

The further question then is, after having performed the two requisite things, can the city itself remove the stop signs on the intersecting highway without thereby destroying the effectiveness of its ordinance? We hold that after it removed the stop signs on the intersecting street the city destroyed the character of Tremont Road as a main preferential highway. To hold otherwise would be to exhibit the folly of the proviso contained in §6307-63 GC now §4511.65 R. C.

We do not find in this case a situation where the required stop signs have become illegible or obscured in any manner whatsoever, for which the city might not be responsible, although a serious question (not necessary for decision here) might arise as to whether the city, in the exercise of its control over its streets for the safety of the traveling-public, has the duty to see that such stop signs are maintained in the legible condition required by the statute.

If we were to hold that the city by the adoption of the ordinance and the placing of legible stop signs on the intersecting street, could the day thereafter remove the stop signs, we would effectively destroy the purpose of the proviso contained in §6307-63 GC, now §4511.65 R. C. We hold the removal of the stop signs by the city removed the character of the street as defined in the ordinance.

As to the intent of the city in removing the stop signs from Northam Road there can be no doubt. It was Tremont Road that was being repaired or reconstructed, not Northam Road, and had the city intended that Tremont Road was to retain its character as a through street during such repair or reconstruction there would be no reason for the city removing the stop signs from Northam Road.

The act of the council in adopting the ordinance was a legislative act while the erection of the signs on the intersecting street was an administrative function, without which the legislation would be a nullity. The removal of the stop signs from the intersecting street left the ordinance in the exact situation thereafter as though no signs had ever been erected.

We find that the trial court was in error in holding that Tremont Road retained its character as a through street after the city had removed the stop signs from Northam Road, although the trial judge mistakenly followed the decision in Connors v. Dobbs, 77 Oh Ap 247, which we find clearly distinguished from this case in the fact situations presented.

We again refer to the decision of the Court of Appeals for the 7th Appellate District in the case of Bartlett v. McDonald, supra, and approve the reasoning set forth in the opinion by Nichols, J., in that case, who is the author of this opinion. Griffith, J., now sitting in this case, is likewise a judge of the 7th District Court of Appeals, sitting with Judges Fess and Nichols in Franklin County. In addition to the authorities cited in Bartlett v. McDonald, supra, we refer to the decision of the Franklin County Court of Appeals in Brown v. Franz, 84 Oh Ap 160.

The judgment of the Municipal Court is reversed because contrary to law and the cause is remanded for a new trial upon the petition of plaintiff, the cross-petition of defendant, the reply thereto, the evidence and the law applying to collisions at intersecting streets where neither has been designated a through street, the applicable law not having been applied by the trial court.

GRIFFITH and FESS, JJ, concur.


author: By KOVACHY, PJ:

text:
    CLEVELAND BOAT SERVICE, INC., Plaintiff-Appellee, v. CLEVELAND (City), Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23437.
    Decided November 30, 1955.

      Karl J. Ertle, James M. Smith, for plaintiff-appellee.
    Ralph S. Locher, Director of Law, for defendant-appellant.
   OPINION

By KOVACHY, PJ:

This appeal is on questions of law from the Common Pleas Court where The Cleveland Boat Service, Inc., plaintiff-appellee, recovered a judgment upon a jury verdict for $50,000.00 against the City of Cleveland, defendant-appellant. The suit was for damages, the plaintiff claiming that the defendant interfered with land and property, held under a leasehold, in the construction of a Freeway adjacent to Lake Erie and known as Memorial Freeway East. The lease extended from September 1, 1944 to August 31, 1959 on land described as “* * * fronting on Lake Erie and which is bounded on the south by Lake Front Drive, on the north by the waters of Lake Erie, on the west by Marquette Street, Northeast, and the prolongation thereof, and on the east by the easterly line of lessor’s property.” Plaintiff operates a boat yard for the sale, storage and repair of pleasure boats and some small commercial craft. The Ohio Chemical Company and its successor, The Air Reduction Company, Inc., through renewals and extensions had leased the premises since 1934. The land leased was entirely surrounded by a fence.

The City of Cleveland passed an ordinance in 1935 proposing a Lake Front Road. This was amended in 1939, establishing a defined width of 230 feet for said Road. The City, in 1936, had constructed a temporary roadway at a much narrower width than the 230 feet strip described in the ordinance, the northerly line being about 150 feet south of the north boundary fixed by ordinance. No part of the temporary road impinged upon land leased to plaintiff’s predecessors and land so leased remained intact within a fenced-in area throughout. The construction of the permanent roadway was started by the Highway Department of the State of Ohio in 1952. The City of Cleveland, under its agreement with the State, was required to appropriate and make available all land needed in its construction. The plaintiff charged that the freeway required an area about 150 feet wide across the southerly portion of its land containing thereon three small buildings.

The City of Cleveland instituted condemnation proceedings in 1952 against the Ohio Chemical Company, now known as the Air Reduction Company, Inc., and the plaintiff, under §1178-37 GC of the State of Ohio. While these proceedings were pending, it bought the uplands owned by the Air Reduction Company, Inc. south of the Freeway, together with all its interests in the filled or accreted lands and littoral rights in the waters of Lake Erie in front of this property. The land occupied by the Cleveland Boat Service, Inc. was north of the old roadway. The quit claim deed transferring the property purchased contained the provision “subject to the terms of the lease between the grantor and the Yacht Terminal, Inc., a. k. a. Cleveland Boat Service, Inc.” Thereupon the appropriation case was dismissed and Ordinance No. 123-53 passed by the Council of the City of Cleveland taking over all property within the boundaries of “the Cleveland Memorial Shoreway Northeast (230 feet wide) established by Ordinance No. 1271-A-39” and directing all occupants “to vacate said premises and remove any and all construction equipment and any other property, real and personal, lying within the above described premises” and providing that claims for damage, if any, be made in writing to the City Clerk, the same to be “judicially inquired into upon the completion of the improvement * * *.”

Upon the completion of the project in front of its place of business, the plaintiff brought its action for damages. Its petition claims that it suffered these items of damage through the construction of the Freeway:

“1. For its fence, gates, the concrete piers in which the gate posts were set, the removal and reinstatement of all of the same-Two Thousand Two Hundred Dollars ($2,200.00).
“2. For its buildings, removal, reinstatement of same, reinstatement of machinery and equipment and re-wiring of same-Nine Thousand Dollars ($9,000.00).
“3. For the loss of the use of the storage space for fifty-two (52) boats for the remaining six years of the lease-Twenty-one Thousand Dollars ($21,000.00).
“4. For the loss of the use of its marine railway and the replacement by a machine to accomplish the same purpose; the removal of the boats from the water and the re-launching of the same-Twenty-five Thousand One Hundred Nine Dollars ($25,109.00).
“5. For the loss of access to the main east and west roadway and the loss of business resulting from the prevention of its customers from having an easy access to its place of business-the sum of Fifty Thousand Dollars ($50,000.00), or a total of One Hundred Seven Thousand Three Hundred Nine Dollars ($107,309.00) plus interest.”

The defenses interposed by the City of Cleveland to plaintiff’s petition were:

1) That the ordinances of 1935 and 1939 established the boundaries of the permanent roadway which on the northerly side was the southerly boundary line of plaintiff’s property since the leasehold of the plaintiff described the land leased to it as “bounded on the south by Lake Front Drive,” and that as a consequence, no part of the Freeway traversed property leased to the plaintiff.

2) That all of plaintiff’s property is on and over lands filled in north of the natural shore line of Lake Erie, that title to this land reposes in the State of Ohio, and that, as a result, the lessor lacked the right or the title to give a valid lease to plaintiff.

3) That the action was prematurely brought because the project at the time had not been completed.

4) That the City of Cleveland had succeeded to any and all rights of the Air Reduction Company, Inc. and the Cleveland Boat Service, Inc., having purchased the property,

Defendant’s brief lists seven points for arguments although the assignments of error set forth many more. We confine ourselves to the consideration of the seven points.

1. THE LESSOR COULD NOT AND DID NOT LEASE ANY PART OF TPIE 230 FEET STRIP TO THE PLAINTIFF.

4. THERE WAS ERROR OF LAW IN REFUSING CERTAIN TESTIMONY OFFERED BY THE DEFENDANT.

The City was not permitted to introduce evidence that the leased land was artifically formed by filling north of the 1914 shore line of Lake Erie in front of the upland property of the Ohio Chemical Company, now the Air Reduction Company, Inc., the lessor. Such evidence was proffered for the record. The defendant claims this to be reversible error for the reason that if it can establish such to be the fact and the law be as it maintains, the State of Ohio is the title holder of the land as trustee for the public and the lessor was without right or authority to execute a valid lease to the plaintiff. The trial court sustained objections to the introduction of all such evidence on the ground that the City was estopped from denying the validity of a leasehold recited in a deed it had accepted when purchasing the lands and all interests in the property from the Air Reduction Company, Inc.

We shall deal at length with this question since its resolution may have a far-reaching effect upon the ultimate outcome of this lawsuit.

The equitable theory of estoppel is well recognized in law. Its basic concept is founded upon the principle that a party has by its own voluntary act placed himself in a situation as to some matter of fact that he is precluded from denying. Sprigg v. Bank of Mt. Pleasant, 35 U. S. 257.

Estoppel by deed is the precluding of a party from denying a certain fact recited in the deed executed by or accepted by him in an action brought upon the instrument by the party to be detrimentally affected thereby. We have no quarrel with the authorities cited by plaintiff on this proposition. The question presented, rather, is whether the doctrine of estoppel was properly invoked against the City of Cleveland by the trial judge under the peculiar facts of this case.

The Supreme Court of Ohio in State v. C & P Rd. Co., 94 Oh St 61, states the law applicable to artifically filled land of Lake Erie as follows in the syllabus of the case;

“2. The title and rights of littoral and riparian proprietors in the subaqueous soil of navigable waters, within the limits of a state, are governed by the laws of the state, subject to the superior authority of the federal government.
“3. The title of the land under the waters of Lake Erie within the limits of the state of Ohio, is in the state as trustee for the benefit of the people, for the public uses to which it may be adapted.
“5. The littoral owner is entitled to access to navigable water on the front of which his land lies, and, subject to regulation and control by the federal and state governments, has, for purposes of navigation, the right to wharf out to navigable water.
“6. The ownership of the waters of Lake Erie and of the land under them within the state is a matter of public concern. The trust with which they are held is governmental, and the state, as trustee for the people, cannot by acquiescence or otherwise abandon the trust property or permit a diversion of it to private uses different from the object for which the trust was created. The littoral owner is charged with knowledge that nothing can be done by him that will destroy the rights of the public in the trust estate.”

It necessarily follows from this decision that if the land involved in this case was formed by fill in the waters of Lake Erie north of the natural shore line of proper cy owned by the lessor, the title to it reposes in the State of Ohio as trustee for the benefit of the people and the lessor was without any right whatever to execute a lease with respect to it. A lease executed pertaining to land so created and so situated is void ab initio. The fact remains, however, that a lease was executed by the Ohio Chemical Co., now the Air Reduction Co., Inc. to the Yacht terminal, Inc., now the Cleveland Boat Service, Inc., and a deed including the property described in the leasehold was accepted by the defendant from the Air Reduction Co., Inc., reciting the fact that it was purchasing the property subject to such leasehold.

The question before us thus becomes: Is a party that accepts a deed to real estate containing a provision that the property acquired is subject to an existing lease of part of the land conveyed estopped from challenging the validity of the lease on the ground that the same is void? Putting it more succinctly: Does estoppel by deed apply to an instrument that is void? We hold that the answer to that question must be in the negative for to hold otherwise would in effect be saying that a right can be created by the mere recitation that it exists. Estoppel by deed presupposes that some interest in land exists by sanction of law. If none in fact was created, how can the mere opportunity to deny it infringe upon, contravene or jeopardize the right or interest of anyone?

Fair title, on the several Demises of Mytton and others, against Gilbert and others, 100 English Reports Reprint 91 (1787):

“The trustees of a public Turnpike Act, which empowers them to erect toll-houses and mortgage the tolls, and which declares that there shall be no priority among the creditors, have no power to mortgage the toll-houses or gates. If, in fact, they have made such a mortgage, and an ejectment is brought against them by the mortgagee, they are not estopped by their deed from insisting that the Act gives them, no such power.” Swanson et al v. Grayson et al, 109 Okla. 264, syllabus 1:
“A deed executed by a Creek freedman attempting to convey the allotment of her minor child, who is likewise a Creek freedman, is void, and no rule of estoppel operates to prevent the assertion of its invalidity.”

See also Charles et al v. Cartright et al, 53 Ark. 358; Phillips v. Lowenstein, 91 Pla. 89; Gordon v. City of San Diego, 101 Calif. 522; Caffrey v. Dudgeon, 38 Ind. 512; Doe on the Demise of Stevens v. Hays, 1 Ind. 247; Mullen v. Pickens, 250 U. S. 590; Altemus v. Nickell, 115 Kentucky 506; Briggs v. Sample, 43 Fed. 102; Alt v. Banholzer, 39 Minn. 511; Smith v. Ingram, 130 N. C. 100; Trustees v. Satterfield, 2 C. C. R 86; Wallace’s Lessee v. Minor, 6 Ohio 367.

It seems obvious to us from the above that error prejudicial to the substantial rights of the defendant was committed by invoking the principle of estoppel against it and by not permitting it to introduce all relevant evidence bearing on the question of whether the land leased was artifically made in the waters of Lake Erie in an attempt to show that the lessor did not have the right or title to lease any part of the 230 feet strip required for the Freeway. Such evidence was clearly material to a vital issue in the case and admissible under applicable law.

Defendant’s claim that the land described in the lease was north of the 230 feet strip allotted to the Freeway is untenable under the undisputed facts disclosed by the record. The first lease applying to this land, dated August 31, 1936, recites that the southerly line of the property is the northerly line of Lake Front Blvd., said road was described as “the road or highway now being constructed by the City of Cleveland across lessor’s property.” All subsequent leases comprised identical land. The ordinances of 1936 and 1939 declared the intention of the City to build a Freeway and established its boundaries but did not appropriate any territory required for the construction of this road and as a result in no way disturbed any of the land except such as was actually needed to complete the first narrow road built, known as Lake Front Drive. The lease now held by plaintiff states in the habendum clause “lessor does hereby let and lease unto the lessee all of the lessor’s right, title and interest in and to the land fronting on Lake Erie which is bounded on the south by Lake Front Drive * *

From this background, it seems clear to us that the intention of the parties to the lease now operating was to take the northerly line of the temporary road as the southerly line of the property leased. The present road accordingly traverses the south portion of the land described in the lease.

3. THERE WAS ERROR OF LAW WITH RESPECT TO ADMISSION OF EVIDENCE OFFERED BY THE PLANTIFF.

The defendant claims that since it is now the landlord, the plaintiff is entitled to damages, if at all, for interference by it of the peaceful enjoyment of the land leased. The plaintiff, on the other hand, maintains that its action is one for damages for the appropriation by the City of part of the land and buildings leased to it. We believe the plaintiff’s contention the proper one under the facts of this case.

The measure of damages for the appropriation of part of the land in the lease is set forth in 15 O. Jur. 838, Sec. 147:

“Where the property appropriated is subject to a tenancy for years, the measure of damages to the tenant is the difference in the rental value of the premises before and after the improvements; that is, the diminution in the value of the leasehold. There is no error in admitting evidence as to the value of the buildings, even though the tenant has a right to remove them at the end of the lease.”

The Supreme Court of Ohio in 11 Ohio 408, Foote v. City of Cincinnati, said:

“2. The liability of a lessee to pay rent subsists, notwithstanding the leasehold has been appropriated for a street, and he is entitled to a compensation from the city for this liability.”

See City of Cincinnati v. Smythe et al, 57 Oh Ap 70 and Appropriation of Land Under Lease, 18 O. C. C. (N. S.) 446.

The record discloses the introduction of voluminous testimony on the question of damages suffered by the plaintiff in the diminution of his space in the construction of the road. Defendant claims that most of the evidence allowed in the record under this heading was erroneous and prejudicial. We have read all of it and find much that was incompetent, irrelevant and immaterial to prove damages in the case. It is our view that the trial court committed reversible error in admitting the cose of the actual replacement of the fence and buildings, the cost of a crane to replace the damaged marine railroad, sales and profits and losses in the conductance of the business, opinion evidence as to the total damages to the physical assets, buildings, and loss of rentals of boats due to reduction of area, financial background of the lease, and expenditures incurred by the plaintiff in developing the leased property. The measure of damages of property appropriated is its actual value or fair market value. Profits and losses in a business was too speculative to have probative value and the financial phase of obtaining a lease and monies expended in developing the property is incompetent and irrelevant to determine damages and, therefore, wholly inadmissible. Judge Stewart in In Re Appropriation, 155 Oh St 454, at page 459, has the following to say with respect to profits:

“As a rule, profits from commercial businesses on premises cannot be shown in an appropriation proceeding for the reason that such profits are too speculative, depending as they do upon the acumen and skill of the one who carries on the business, but, assuredly, it is proper to show the kinds of businesses to which the premises are adaptable.”

C. C. C. & St. L. Ry. Co. v. McKelvey, 12 O. C. C. 426, syllabus 7:

“The measure of damages is the actual value of the property, and not what it would have cost to reconstruct or replace the same, with deductions for wear and tear. Under such a rule the damages might far exceed the actual value of the property and the actual loss to plaintiffs. Where property totally destroyed has a market value, that market value is the measure of compensation for the loss.”

City of Bellevue v. Stedman, 63 Oh Ap 150, syllabus 3:

“In a condemnation proceeding to determine the damage to properties abutting upon a grade-crossing elimination project, evidence as to incidental damages by way of inconvenience, interference with business, loss of profits, goodwill or anticipated future profits, is inadmissible.”

Defendant also complains that the trial court wrongfully permitted testimony over its objection bearing on the matter of the interference with access to the property. With respect to this, the plaintiff argues that such evidence relates to two phases of the case — one, loss of access during the construction of the roadway and two, loss of permanent access resulting from the completed Freeway and that the jury’s verdict, being general, no conclusion can be drawn as to whether the jury made allowance for one or both of these claims. The evidence is clear, however, that due to the construction of this road, the access to this property is more circuitous since side roads must be traversed for ingress and egress. In our opinion, the evidence with respect to the circuitous course that must be taken to get to plaintiff’s property since the completion of the Freeway, was improperly admitted. The Supreme Court, in State, ex rel. v. Linzell, 163 Oh St 97, stated at page 102:

“Mere circuity of travel, necessarily and newly created, to and from real property does not of itself result in legal impairment of the right of ingress and egress to and from such property, where any resulting interference is but an inconvenience shared in common with the general public and is necessary in the public interest to make travel safer and more efficient.”

We believe, however, that there was an issue of fact with respect to the interference of ingress and egress during the construction of the road as to whether or not such interference was caused or contributed to by any unreasonable, negligent or unskillful acts of the workers constructing the road. The Colonial Furniture Co. v. Cleveland Union Terminal Co., 47 Oh Ap 399, syllabus 4 states the law in this regard as follows:

“4. Public officers lawfully employed in making public improvements, and corporations engaged in performance of work of public nature authorized by law, are not liable for consequential damages occasioned to others unless caused by misconduct, negligence or unskillfulness.”

All evidence bearing on this phase of the case of interference with ingress and egress of plaintiff’s property was properly admitted and we find no error in that regard.

5. THERE WAS ERROR OF LAW IN THE SPECIAL CHARGES GIVEN AT PLAINTIFF’S REQUEST AND THEN THE COURT’S GENERAL CHARGE. With respect to this matter, plaintiff contends that five of the six special charges requested by plaintiff and given to the jury before argument stated incorrect propositions of law. They all deal with the measure of damages. They deal (1) with the measure of damages to a tenant holding a lease on property that has been appropriated; (2) value of buildings, structures and fixtures; (3) value to be given fence; (4) measure of damages in the replacement of the marine railroad; (5) value of the use of property to the plaintiff himself. These charges gave the jury the yardstick to use in determining damages to the plaintiff in regard to the particular subjects mentioned. We find the same vices appearing in each, in one way or another, as were discussed by us when considering the testimony introduced in evidence to prove the same elements of damage. It would serve no useful purpose to repeat here what we said in connection therewith. We hold that the trial court committed error prejudicial to the substantial rights of the defendant in submitting these charges to the jury before argument for the reason that they do not state correct propositions of law

The trial court, in its general charge, told the jury that the court had already determined the lease to be valid and that the matter of filled land or the Freeway being constructed in aid of navigation and commerce was no part of the case. It then proceeded to say “so that leaves only one question for this jury to determine and that is the question of damages.” This charge, in view of the issues discussed in this opinion, was highly prejudicial to the substantial rights of the defendant and, standing alone, requires a reversal of this cause.

6. THERE WAS ERROR IN THE COURT’S REFUSAL TO GIVE DEFENDANT’S CHARGES BEFORE ARGUMENT. The court was requested by defendant to give five separate charges to the jury before argument. The court did give charge No. 1 but refused the remaining four. The request labeled No. 2 dealt with the law as regards obtaining title b3'i adverse possession. This charge, we feel, was properly refused by the court since no such issue was raised in the case. The other stated the law in regard to the title of the artificially created land in Lake Erie and the rights flowing therefrom to a municipality by virtue of §721.04 R. C. While, in the main, these charges were abstract statements of the law, they, nevertheless, were applicable to the issues raised in this case and in our opinion should have been submitted to the jury.

7. THE DAMAGES AWARDED BY THE JURY WERE EXCESSIVE AND APPEARED TO HAVE BEEN GIVEN UNDER THE INFLUENCE OF PASSION OR PREJUDICE. There can be no doubt whatever that the amount of the verdict brought in this case cannot be sustained. It was based on testimony relating to damages, a large part of which was highly improper. The lease contains a cancellation clause under which a price to be paid lessee for permanent improvements installed in the premises is established in the event of termination of the leasehold. That figure at the time of this lawsuit amounted to about $8,200.00. The total rent for the years remaining for the entire property leased amounted to $8400.00. In view of these facts, a verdict of $50,000.00 as damages for the appropriation of only part of the land leased is manifestly excessive.

2. THE CITY OR THE STATE HAS THE RIGHT TO TAKE POSSESSION OF THE PROPERTY AND INQUIRE INTO DAMAGES, IF ANY, AFTER THE HIGHWAY WAS COMPLETED. We overrule this assignment of error. The defendant was in no way prejudiced even if this action was brought before completion of the Freeway.

We unanimously hold that the City of Cleveland was not accorded substantial justice in the trial of this cause and that the judgment of the Common Pleas Court must be and hereby is reversed as being contrary to law and the cause remanded for further proceedings according to law.

Judgment reversed and cause remanded. Exceptions. Order see journal.

SKEEL, J, HURD, J, concur.


author: By McCRYSTAL, J.

text:
    ESKRIDGE et, Plaintiffs, v. SANDUSKY (City) et, Defendants.
    Common Pleas Court, Erie County.
    No. 29379.
    Decided January 18, 1955.
    Steineman & Zeiher, Sandusky,' for plaintiff.
    John W. Lehrer, City Solicitor, Schwer & Moore, Sandusky, for defendant.
   OPINION

By McCRYSTAL, J.

The Plaintiffs as residents of the City of Sandusky bring this action to enjoin the City of Sandusky, the City Manager, and the City Engineer from issuing a permit for the construction, erection, rebuilding, replacement, etc., of any buildings used in connection with the petroleum business of the Gulf Refining Company on certain land now owned by the Gulf Refining Company in the City of Sandusky.

The Gulf Refining Company was granted leave of court to be made a party defendant and has filed its Answer.

The Defendant, Refining Company, have used lots 111, 113, 115, 117, 119, 121, 123 and 125 Filmore Street for many years as a gasoline and oil storage plant. On July 26, 1954 there was an explosion or fire which destroyed a substantial part of these facilities. It is to prevent the replacement and repair of these facilities that the Plaintiffs seek their injunction.

The Plaintiffs allege in their Petition that the existence of these storage facilities create hazardous conditions and that since the fire the residents of the adjacent property and particularly the children live in some fear of a subsequent fire or explosion and by virtue of the existence of these facilities the Plaintiffs will suffer an irreparable damage.

There has been in existence in the City of Sandusky since September 26,1921 Ordinance No. 1129-C which makes it unlawful to construct, maintain or operate any public gasoline filling station or sales depot within certain specified areas one of which is in an area where three-fourths of the buildings on both sides of the street or streets for a distance of 300 feet are used exclusively for residence purposes, unless the written consent of two-thirds of the owners of the privately owned property on both sides of the street for a distance of 300 feet in each direction is obtained. The Ordinance further provides for a fine in the event of a violation.

It is stipulated and agreed by the parties that the predecessors of the Refining Company prior to the adoption of the Ordinance in 1921 used Lots No. 121, 123, 125 for the storage of oil and petroleum products. It is further admitted by the parties Lot No. 119 has been used exclusively for office purposes and that there is no storage of oil or other petroleum products on said lot. It is further admitted by the parties Lots No. Ill, 113,115,117 were not used for the storage of oil and other petroleum products until after the effective date of the Ordinance in question.

The storage of gasoline, oil and other petroleum products is not a nuisance per se and the use of real estate for such purposes cannot be enjoined unless said use violates some state or municipal regulation. 30 O. Jur. 356; Adams v. Gorrell, 119 Oh St 139. It, therefore, follows that the Plaintiffs are not entitled to any injunctive relief as to Lots No. 121, 123, and 125 which lots were used for the storage of oil and other petroleum products prior to the enactment of the Ordinance. The remaining question involved in this case is whether the Plaintiffs are entitled to relief by way of injunction against the Refining Company for the further use of Lots No. Ill, 113, 115, 117 for the storage of oil or other petroleum products.

The first question raised by the Answer of the Refining Company is that said Ordinance is an invalid attempt to delegate legislative power inasmuch as it purports to grant to adjoining property owners the right to exercise such legislative power by written concurrence.

This court is unable to agree with the contention of the Defendants concerning this Ordinance. The Ordinance is in most respects similar to the one involved in State, ex rel Oil Company v. Combs, 129 Oh St 251 which was upheld by the Supreme Court. In Syllabus 4, the Court stated:

“Where a municipal ordinance absolutely prohibits the installation of filling stations, but permits such prohibition to be modified and consented to by property owners most affected by such modification, as in this case, the required securing of such consents does not amount to a delegation of legislative power.”

This case has not been overruled or modified and is still the controlling law as to this type of ordinance. For other similar cases see 21 A. L. R. 2nd 551.

The Refining Company was unable to show that they or their predecessors in title ever complied with the provisions of the ordinance with respect to procuring the necessary signatures. The records of the City of Sandusky did not disclose that such permission was ever granted or such consents were ever filed with them. The Plaintiffs produced evidence of some witnesses who had lived in the adjoining neighborhood prior to 1920 and they did not recall that any consents were solicited by the Defendant’s predecessors.

Further by way of defense the Refining Company claims to have a prescriptive right to continue their business at the present location without complying with the city ordinance in question. This is based on the questionable assumption that their use of this property can only be prevented if their operation constitutes a private nuisance. If the operation of the bulk storage plant was a private nuisance and was not in violation of any city ordinance it would appear that the refining company would have a prescriptive right to continue their operation. The existence of this plant is in violation of a valid municipal ordinance. The ordinance is of a type that would be classified as a special zoning ordinance and it seems quite clear from the lav/ that a municipality by inaction or by expressly giving permission to violate such ordinance cannot be held to have waived their right to enforce the ordinance nor does such permission or inaction estop them. 58 Am. Jur. 1045. In Kilko v. The City, 60 Abs 561, where permits were issued over a period of some 24 years contrary to the provisions of a zoning ordinance the Court of Appeals of the 8th District held that such actions on the part of municipal authorities in violation of a zoning ordinance does not create an estoppel irrespective of the period of time the violations were committed. It would, therefore, follow that the statute of limitations and laches would not be a bar to the present action.

Defendant in his Answer raises the question that the bulk storage plant prior to the fire was in effect a “non conforming use,” and, therefore, may be restored or repaired unless a municipal regulation or ordinance provides to the contrary. This defense presupposes that the existence of the bulk storage plant was legally constructed in the first place and was in existence at the time of the enactment of the ordinance in question. As to that part of the bulk storage plant which was constructed and in operation on Lots No. 121, 123 and 125, the Defendant’s position is correct. Unless there is some restriction to the contrary, “a non conforming use” may be rebuilt or repaired after damage by fire or otherwise. However, as to that part of the bulk storage plant on Lots No. Ill, 113, 115, and 117 this rule would not apply as the buildings and facilities on these lots were originally constructed in violation of the municipal ordinance and the Plaintiffs at any time since their construction and operation would have the right to prevent their use in violation of the ordinance.

One other question which injects itself in this case is whether or not the Plaintiffs rather than the City of Sandusky are the proper parties to bring this action. On the authority of Pritz v. Messer, 112 Oh St 628, it would appear in Ohio that a property owner is a proper party to bring such an action. See also 58 Am. Jur. 1043; 54 A. L. R. 366; 129 A. L. R. 885; City of Canton v. Fedco, 33 O. O. 131.

The Defendant, the City of Sandusky, is, therefore permanently enjoined from issuing any building permits for the new construction, erection, rebuilding, replacement, repair or any type on Lots No. Ill, 113, 115, 117, 119 Filmore Street for any use contrary to the provisions of Ordinance 1129-C of the City of Sandusky, Ohio. The Defendant, the Gulf Refining Company is herewith permanently enjoined from using Lots No. Ill, 113, 115, 117, 119 Filmore Street as a bulk storage plant, public gasoline or oil filling station or sales depot until such time as it complies with the provisions of Ordinance 1129-C of the City of Sandusky, Ohio.

Appeal bond is set at $500.00.


author: By McCURDY. PJ:

text:
    WILCOX, Estate of, In re.
    Ohio Appeals, Fourth District, Vinton County.
    No. 298.
    Decided July 23, 1955.

      Arthur M. Sebastian, Columbus, Henry S. Willard, Wellston, for appellant.
    R. Brooke Alloway, Columbus, for appellee.
   OPINION

By McCURDY. PJ:

This appeal is predicated on eight assignments of error and directed to the judgment of the Probate Court of Vinton County, Ohio, in overruling the appellant’s motion to dissolve the ancillary administration of the estate of Edwin C. Wilcox, a non-resident of Ohio. The principal questions presented are two in number and are properly set forth in the brief of the appellant.

1. Was the application for ancillary administration made by any interested person within the meaning of §10511-4 GC, now §2129.04 R. C.?

2. Is an automobile insurance policy properly within the meaning of §10511-4 GC (§2129.04 R. C.), providing for ancillary administration?

The undisputed facts in this case are that Edwin C. Wilcox was a non-resident of Ohio. He died a non-resident of Ohio, and his estate was administered in Denver, Colorado. Prior to the death of Edwin C. Wilcox he was in an automobile accident in Vinton County in which Charles Shelby, Laura E. Shelby and Zelma Tripp, all three domiciled in Franklin County, Ohio, were involved. At the time of the collision of the automobile driven by Edwin C. Wilcox, deceased, and the automobile in which the Shelbys and Zelma Tripp were riding, Edwin C. Wilcox was insured against liability by the Government Employees Insurance Company of Washington, D. C. Claims were filed on behalf of the Shelbys and Miss Tripp with the administratrix of the estate of Edwin C. Wilcox, and were rejected for the reason as set forth in the appellee’s brief, that the administration of the estate in Colorado had been closed as of February 13th, 1952. An attempt was made to re-open the estate for the purpose of filing these claims, which the Probate Court refused to do. It is asserted in the brief of the appellant that this administration in Colorado was commenced on February 6th, 1951, and that no attempt was made to file claims until February 15th, 1952, at which time the claims were barred against the estate under the provisions of Section 207 of the law of Colorado, which requires that the claims be filed within six months after the issuance of letters. In this ancillary administration in Vinton County, the only possible claim that can be made that the decedent died leaving any property in the State of Ohio, was that he had a right of action against the Government Employees Insurance Company of Washington, D. C. This claim was made by the applicant for ancillary administration who was appointed by the Probate Court as such administrator, and the statement in lieu of inventory sets forth this exact representation.

The record in this case shows that this applicant, a lawyer of Vinton County, Ohio, after being interviewed by the attorney for the Shelbys and Miss Tripp, but not employed by them as their counsel, or by their counsel to assist with their claims, was requested to seek ancillary administration of the estate of Edwin C. Wilcox, deceased, and to apply for appointment as ancillary administrator of the estate. This was done on April 19th, 1952, in an application which represented to the Probate Court that the Shelbys and Miss Tripp were interested in the estate as creditors; that the decedent died leaving property in the state of Ohio, consisting of personal property of the probable value of $75.00, and that the applicant is not indebted to the estate. Other than having explained to him the nature of the claims of the Shelbys and Miss Tripp, and that they would be filed with him as ancillary administrator, and that there was no property in the State of Ohio, and that at the time of the automobile collision in question the decedent was covered by the insurance policy heretofore mentioned, the applicant had no interest in the estate. These salient facts control the disposition of this case.

All of the assignments of error in this case relate to the jurisdiction of the Probate Court to grant ancillary administration under the provisions of §10511-4 GC (§2129.04 E. C.), which provides as follows:

“When a non-resident decedent leaves property in Ohio, ancillary administration proceedings may be had upon the application of any interested person in any county in Ohio in which is located property of the decedent, or in which a debtor of such decedent resides. Such applicant may or may not be a creditor of the estate. The ancillary administration first lawfully granted shall extend to all the estate of the decedent within the state, and shall exclude the jurisdiction of any other Court.”

The clear and unequivocal language of this section provides first- that the ancillary administration proceedings may be had upon the application of any interested person. The ancillary administrator in this case testified properly that he was not interested in any manner. It is clear that he was not a creditor or even a representative of the claimants, so that we must conclude that the applicant for the ancillary administration was not an interested person as required by the law of Ohio.

The next requirement of this enactment by the Legislature is that the decedent’s property be located not only in Ohio, but also in the county in Ohio where the ancillary administration proceedings are had, or in which a debtor of such decedent resides. The appellee maintains that the decedent being indemnified by the insurance policy included as an exhibit in this case, and having had a collision in Vinton County, Ohio, brought into existence under the terms of this insurance policy the right of the decedent to be defended by the insurance company, and indemnified by the insurance company in event of judgment against him, provided that under the law of the State of Ohio an action was instituted by the claimants in the county in which the accident is admitted to have occurred. The position of the appellee is predicated on the proposition of law set forth in the case of Robinson v. Dana’s Estate, 87 N. H. 114; 174 Atl. 772; 94 A. L. R. 1437.

Much time was consumed in argument in this case, both oral and by brief, in relation to the theory developed from the Robinson case. In event such a theory should become the law of the State of Ohio, it would not be determinative of this case. The confused reasoning arises from the fact that no suit was instituted against the decedent in his lifetime in Vinton County, Ohio, growing out of an automobile collision while driving through Vinton County. With the death of Edwin C. Wilcox, the possibility of suit against him in Vinton County, Ohio, along with the possibility of his right to be defended, ceased to exist.

Sec. 6308 GC, now §4515.01 R. C., fixes a possible venue for actions against Mr. Wilcox, a non-resident of the State of Ohio, growing out of his automobile collision in Vinton County, to be in Vinton County, the county in which the collision occurred, and subsequent §§6308-1 and 6308-2 GC (§2703.20 R. C.) provide for substituted service upon a nonresident owner or operator of a motor vehicle. The right to fix the venue in Vinton County belonged to the claimants and did not belong to Wilcox. The claimants never exercised this right during the lifetime of Wilcox. After the death of Wilcox, the provisions for substituted service do not authorize such service upon the non-resident personal representative of a deceased non-resident owner or operator. Harris v. Owens, Admr., 142 Oh St 379; 27 O. O. 290.

The statutes of Ohio make no provisions for substituted service upon an executor or an administrator. The agency of the Secretary of State was terminated by the death of Edwin C. Wilcox in the instant case. The mere happening of the automobile collision in Vinton County, Ohio, was not, in and of itself, sufficient to bring into existence any propery right of Edwin C. Wilcox under any sound theory that can be adopted by this Court where the choice of various places of venue is placed by law with the claimant. Until the claimant’s right to fix the place of venue is actually exercised to be Vinton County, Ohio, no property right can be adjudged as existing there. It should be patent that the venue of these causes of action having not been fixed in Vinton County, Ohio, the insurance company had no obligation to Wilcox in Vinton County, Ohio, and the decedent cannot be said to have died leaving property in Vinton County, Ohio.

The provisions of §10511-4 GC (§2129.04 R, C.), afford the only authority for the Probate Court’s action in decreeing ancillary administration and appointing an ancillary administrator in the estate of Edwin c. Wilcox, deceased. Edwin C. Wilcox did not die leaving property in the State of Ohio, and in Vinton County. The ancillary administrator, who was the applicant for the ancillary administration of the estate, was not an interested person. No ancillary administration of the Edwin C. Wilcox estate can be had in Ohio. The Probate Court erred in overruling the appellant’s motion to dissolve the ancillary administration. The order and judgment of the Probate Court is reversed, and this cause is remanded to the Probate Court of Vinton County, Ohio.

Judgment reversed.

COLLIER and GILLEN, JJ, concur.


author: Per CURIAM:

text:
    FAMILY FINANCE CO. et, Plaintiff-Appellant, v. CLARKE et, Defendants-Appellees.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23688.
    Decided March 14, 1956.

      Max D. Gustin, S. J. Knerly, for plaintiff-appellant.
    Morris R. Blane, for defendants-appellees.
   OPINION

Per CURIAM:

No bill of exceptions was filed in this case so that all errors claimed must be demonstrated on the face of the record. The record shows that the plaintiff took its judgment on a warrant of attorney on February 23, 1955. It is further disclosed that after the term in which judgment was taken, that is on September 17, 1955, a special proceeding in aid of execution was instituted (two other such proceedings had been previously started and dismissed) without challenging the judgment or seeking relief under the provisions of Chapter 2325 R. C. The defendant by motion attempted to stop the enforcement of the judgment by seeking dismissal of the proceeding in aid of execution. The claim of the defendant that the debt had been discharged in bankruptcy shows on the face of the record that the judgment in this proceeding was not taken nor was the action filed until after the defendant’s discharge in bankruptcy had been entered on May 7, 1954. The Municipal Court was, therefore, without authority to stay or dismiss the aid proceeding until the judgment had been vacated or its operation suspended by a proceeding instituted under the authority of Chapter 2325 R. C. Discharge in bankruptcy is an affirmative defense to a judgment taken against the bankrupt after such bankruptcy proceeding has been concluded. The issue of the legal right of the defendant to a discharge from the debt upon which judgment was taken can then be litigated. There is no such thing as a motion to stay an ancillary proceeding to a judgment taken in a term preceding the filing of such motion without seeking relief against the judgment under Chapter 2325 R. C. This cause is remanded with instructions to reinstate the aid proceeding dismissed by the court and for further proceedings according to law.

Exceptions. Order see journal.

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


author: By THE COURT.

text:
    MULLINS, d. b. a. LUKE’S RESTAURANT, Appellee, v. BOARD OF LIQUOR CONTROL et, Appellants.
    Ohio Appeals, Second District, Franklin County
    No. 5081.
    Decided September 24, 1954.
    Farmer & Rownd, Robert G. Farmer, Jr„ of Counsel, Columbus, for appellee.
    Hon. C. William O’Neill, Atty. Geni., Robert B. Krupansky, Kiehner Johnson, Asst. Attys. Geni., Columbus, for appellants.
   OPINION

By THE COURT.

This is a law appeal from the judgment of the Common Pleas Court reversing an order of the Board of Liquor Control affirming that of the Department denying the applicant, Luther J. Mullins, a D-2 liquor permit. The question presented is whether, upon objection of the authorities in control of a library within 500 feet of the permit premises, to wit, 50 feet from the nearest point, and a showing that a large number of children use the library and would be required to pass the premises, the order is supported by “substantial, reliable and probative evidence.” (Sec. 154-73 GC.) This question has been answered by this Court in the affirmative upon very similar facts on three different occasions, in the unreported cases of Kroger Co. v. Board of Liquor Control, No. 4921, Godic v. Board of Liquor Control, No. 4897, and Hermelin v. Board of Liquor Control, No. 4893. (OA 73 Abs 397.) These cases were decided on June 3, 1953, and after the effective date of §154-73 GC. Hence, there has been no change in the degree of proof required by statute. We adhere to the legal principles pronounced in the cited cases and reasons therefor, and hold that the order is supported by evidence that is substantial, reliable and probative.

The judgment will be reversed and the order of the Board affirmed.

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


text:
    FRANCIS, Plaintiff-Appellant, v. MIDDLESWORTH, Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 4920.
    Decided October 6, 1953.
    Cowan & Adams, Columbus, for plaintiff-appellant.
    Walter R. Snider, Columbus, for defendant-appellee.
   OPINION

By THE COURT.

This is a law appeal from the judgment of the Common Pleas Court of Franklin County sustaining a demurrer to plaintiff’s amended petition and dismissing the action, the plaintiff electing not to plead further.

In her amended petition plaintiff alleges that she was the owner of real estate located in Columbus, Ohio, which was sold by the Auditor of Franklin County on application filed in the Common Pleas Court of Franklin County as provided in §§5718-la and 5718-lb GC, and other related sections. Plaintiff alleges she was the owner of said real estate at the time of forfeiture, but was not notified and was not listed as the owner in the proceedings.

Sec. 5718-lb GC, provides that the list of such lands

“shall contain the names of the owners, as found on the Auditor (’)s duplicate, of such lands, at the time they were omitted * *
and shall be a part of the legal publication notice. The law does not-require a formal notice to be given the owner.

Plaintiff failed to allege facts showing a noncompliance with this section. The statute does not require a listing of the actual owners, but rather the name of the owner as found on the auditor’s duplicate at the time the land was omitted.' It is not alleged that the plaintiff’s name appeared on the auditor’s duplicate at the time the land was omitted; neither does she allege that she was the owner of record.

The demurrer was properly sustained. Judgment affirmed.

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


author: By GRIFFITH, J.

text:
    STAFFORD, Plaintiff-Appellant, v. STAFFORD, Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 5277.
    Decided February 9, 1956.
    Abraham Gertner, Columbus, for plaintiff-appellant.
    King & Gross, Gale R. King, of Counsel, Columbus, for defendantappellee.
    (NICHOLS, PJ, GRIFFITH, J, of the Seventh District, FESS, J, of the Sixth District, sitting by designation in the Second District.)
   OPINION

By GRIFFITH, J.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Franklin County reducing to $15.00 per week the order for the support of two minor children of the parties to this action.

On May 26, 1953, in a divorce action, the Court ordered the defendant to pay $150.00 per month for the support of the two minor children. At that time, the defendant was employed by the Kroger Company at a salary of $500.00 per month.

On August 26, 1954, the Court found the defendant in contempt for failure to pay the full amounts ordered for the support of the children and ordered him to purge himself by the payment of $25.00 per month on the arrearage in addition to the payment of $150.00 per month theretofore ordered and awarded the plaintiff judgment against the defendant for the sum of $375.00.

In September, 1954, the defendant lost his position with the Kroger Company and with the exception of ten days employment in the postal service during the Christmas Holidays of 1954, he has been unemployed. He has been drawing $35.00 per week unemployment compensation since November, 1954.

On October 22, 1954, the Court, after hearing, found that the defendant was unemployed and suspended the order for support for one month commencing October 18, 1954. On November 18, 1954, the defendant filed a second motion to reduce the support order. Hearing was had, and the Court, on January 17, 1955, reduced the order of support to $30.00 per week.

On January 24, 1955, the defendant filed a motion to reconsider its order of January 17th. Hearing was had on this motion on February 9, 1955, and the Court, upon reconsideration, reduced the order to $15.00 per week for the support of the minor children. It is from this order that this appeal is before us.

The original divorce decree reads, “That upon agreement of the parties, it is by the Court ordered and so forth.” It is admitted that a written agreement had been entered into between the parties, as to the disposition of some of the real property and, in that agreement, it was stated that the support should be $150.00 per month.

The plaintiff contends that, in the face of this agreement, the Court is deprived of the power to alter the same, except when necessary, for the protection of the children. This contention, it seems to us, is not tenable.

In the case of Seitz v. Seitz, 156 Oh St 516, the syllabus reads:

“1. Where, in the decree in a divorce action the trial court adjudges that the husband pay a certain amount each week for the support of minor children ‘until further order of this court,’ that court retains jurisdiction to modify the order as changed circumstances may require. (Tullis v. Tullis, 138 Oh St 187, distinguished.)
“2. Such jurisdiction is not lost by reason of the fact that the original support order was adjudged in conformity with the amount named in an agreement of separation and property settlement previously executed by the parties and approved by the court.”

It was incumbent upon the defendant to show a change of circumstances, and the changed circumstances must be substantial.

The order for $30.00 per week was made on January 17, 1955. Upon reconsideration, this was reduced on February 9, 1955, to $15.00 per week. Even in this short period of time, conditions were changing for the defendant. He had searched for work and found none. His field of possibilities for employment was diminishing. He was unemployed through no fault of his own.

Of course, the real change of circumstances dated back to the time Kroger let him out when his $500.00 per month income was cut off. The plaintiff complains that the trial court confused wages with unemployment benefits. Be it called by what term it may, his only compensation at the time of the hearing on February 9, 1955, was his unemployment weekly checks.

The trial court has the jurisdiction, and the duty to hear the defendant’s motion for reconsideration and reduction and to determine whether the support order should be reduced. In making the order complained of, we are unable to say that it abused its discretion.

Judgment affirmed.

NICHOLS, PJ, FESS, J, concur.


text:
    STAFFORD, Plaintiff-Appellant, v. STAFFORD, Defendant-Appellee.
    No. 5277.
    Decided March 16, 1956.
   OPINION

By GRIFFITH, J.

The plaintiff-appellant seeks a rehearing for the reasons:

1. That this Court, in citing the case of Seitz v. Seitz, 156 Oh St 516, in its opinion, implied that the decree in the case at bar reserved the power to modify.

2. That the opinion of the Court indicates the belief that the motion for reconsideration was sustained at the hearing on February 9, 1955, which is not the fact; that on February 9, 1955, the defendant’s motion to reconsider was stricken from the files. That on February 9, 1955, the defendant made a third oral motion in open Court to again modify and reduce the order for child support. In other words, the motion made on February 9, 1955, was the third consecutive motion to reduce child support made by the same defendant for the same reasons.

3. That the opinion did not touch upon the question of the defendant’s coming into Court with unclean hands.

4. That the Court injected into its opinion the matter of abuse of discretion when the question was not that of discretion at all, but the error assigned was that the Trial Court’s order was contrary to law.

Taking the reasons for rehearing up in inverse order, No. 4 pertains to the last paragraph of the Court’s opinion which reads:

“The Trial Court has the jurisdiction and the duty to hear the defendant’s motion for reconsideration and reduction and to determine whether the support order should be reduced. In making the order complained of, we are unable to say that it abused its discretion.”

The plaintiff is not claiming abuse of discretion on the part of the Trial Court, and we found none so that is not too serious, although the plaintiff may be justified in calling the matter to our attention.

The third reason assigned is that the Court did not, in its opinion, touch upon the question of the defendant coming into Court with unclean hands. The fact that the defendant had been found in contempt of the former order of the Court in that he had not complied with that order does not imply that he, on this last motion, is standing before the Court with unclean hands.

Of course, it was his duty to purge himself of this violation if humanly possible, but he is not to be condemned because he seeks to bring to the Court’s attention his incapacity to comply with the Court order. Apparently the Trial Court felt that he was not in Court with unclean hands because, following the contempt order, the Trial Court entirely suspended for one month the operation of the support order.

The second reason assigned for a rehearing relates to the question of whether this last order of $15.00 per week was based on a motion for reconsideration of the former order, or whether it was a new and third consecutive motion, orally made, resulting in said reduction.

Counsel is correct in stating that it was not on the motion for reconsideration, but the order was made on the oral motion made by defendant in open Court on February 9, 1955. We believe it of no consequence whether the motion for reconsideration was stricken from the files and then an oral motion made in open Court for modification, or otherwise, since the Court did act and made an order for reduction to $15.00 per week on that date.

The first reason assigned as grounds for rehearing is the serious and all important one involving the question of whether the case of Tullis v. Tullis, 138 Oh St 187, is controlling to the extent that this Court must follow it strictly or whether this case is distinguished from the Tullís case.

Prior to the decision in the Tullís case, it had been uniformly held that the jurisdiction of a divorce court is continuing with respect to an award for support of children notwithstanding the failure to reserve jurisdiction in the decree. Hoffman v. Hoffman (1864), 15 Oh St 427; Neil v. Neil, 38 Oh St 558; Rogers v. Rogers, 51 Oh St 1; Corbett v. Corbett, 123 Oh St 76; Newkirk v. Newkirk, 129 Oh St 543.

There are three important pronouncements by our Supreme Court made during the past quarter of a century having direct bearing on this case.

In 1930, in the case of Corbett v. Corbett (Summit County case), 123 Oh St 76, the Court held:

“A decree of divorce terminating the marriage contract of parents who have minor children, which decree provides for the custody, care and support of such minor or minors by the parents respectively during such minority or for a lesser period of time, named in the decree, continues the jurisdiction of the court for such period without any express reservation in the decree itself.”

In 1941, in the case of Tullis v. Tullis, 138 Oh St 187 (Wood County), the syllabus reads:

“A decree in a divorce action, unconditionally fixing the amount and method of payment by the husband for the support of a minor child pursuant to and in accordance with a previous contract of separation between the husband and wife providing for complete property settlement and support to their minor child, which contract is specifically approved by the court and made a part of the decree, may not, in the absence of fraud br mistake, be subsequently modified by the court so as to lessen the amount of support for such minor child.”

In 1952, in the case of Seitz v. Seitz, 156 Oh St 516 (Cuyahoga County), the Court holds that jurisdiction is not lost by reason of the fact that the original support order was adjudged in conformity with a contract previously executed by the parties and approved by the Court and incorporated in the decree.

It further holds that the Trial Court retains jurisdiction to modify the order, as changed conditions may require, where in the decree it provides, “Until further order of this Court.”

In the Seitz case, the retention clause is present, and that distinguishes that case from the case of Tullís v. Tullís, decided eleven years before. The facts in the two cases are different.

The Seitz case does not hold that the omission of the reservation terminates the jurisdiction and power of the Trial Court to later modify in any respect the decree so entered. It holds that the Trial Court retains jurisdiction to modify the order, where in the decree it adjudges, “Until further order of this Court.”

It further holds that jurisdiction is not lost by reason of the fact that the original support order was adjudged in conformity with the amount named in an agreement of separation.

In the Tullís case, the wife relinquished all her rights in consideration of the husband agreeing to support the child, including dower, inheritance, and descent in and to the property of husband’s year’s support and all claims as widow and, if an order for divorce was instituted, she would not ask for alimony and counsel fees but would ask for support of the daughter only.

In the instant case, the decree reads as follows:

“Now came the parties herein, and thereupon this cause came on regularly for trial on the petition of the plaintiff, the answer of the defendant and upon the evidence. On consideration whereof, the court finds that the defendant has been duly served with summons and a copy of the petition herein.
“The court further finds that the plaintiff, at the time of filing her petition, had been a resident of the State of Ohio for one year next preceding the same, and was at that time a bona fide resident of Franklin County, Ohio, and had resided in Franklin County more than ninety days immediately preceding the filing of her petition.
“The court further finds that the parties hereto were married as set forth in plaintiff’s petition and as issue of said marriage, there are two children, Rosemary and Robert.
“The Court further finds upon the evidence adduced that the defendant has been guilty of gross neglect of duty and that by reason thereof the plaintiff is entitled to a divorce as prayed for in her petition. It is therefore ORDERED, ADJUDGED and DECREED by the court that the marriage contract heretofore existing between the said Ada M. Stafford and Veit L. Stafford be and the same hereby is dissolved and both parties are released from the obligations of the same.
“It is by the court further ordered that the custody of the minor children of the parties be and it is hereby awarded to the plaintiff, with reasonable visitation rights to the defendant. It is by the court further ordered that the defendant pay to the plaintiff as and for the support of the minor children, the sum of one hundred fifty dollars ($150.00) per, month, plus poundage, said payments to be made at the rate of seventy-five dollars ($75.00), plus poundage, on the first and on the 15th days of each month, through the office of the cashier of this court, with the first of said payments to be due on the first day of June, 1953.
“Upon agreement of the parties, it is by the court further ordered that the plaintiff be and she is hereby awarded as permanent alimony title to the St. Louis property, now jointly owned by both parties. It is therefore by the court ordered that the defendant convey to the plaintiff all of his right, title and interest in and to the St. Louis property, now jointly owned by both parties, and that the defendant turn over to the plaintiff all papers, records, deeds and abstracts which he may have to that property.
“It is by the court further ordered that each of the parties take his and her own personal effects and clothes and that the plaintiff be permitted to take her personal effects now stored on the defendant’s farm in Bourbon County, Kansas.
“It is by the court further ordered that the household furnishings and effects of the parties located at 594 South Terrace Avenue be and the same are hereby awarded to the plaintiff, except the bedroom set which previously belonged to the parents of the defendant, the stand-table with the drawers in it, and any other items on which the parties may mutually agree.
“The court further orders that the bonds of the parties now in the possession of the plaintiff be and they are hereby awarded to the plaintiff.
“Upon motion made in open court, it is by the court further ordered that the defendant pay to the plaintiff as additional expense money, the sum of two hundred fifty dollars ($250.00), said sum to be paid through the office of Abraham Gertner, Attorney, 17 South High Street, Columbus 15, Ohio.
“It is by the court further ordered that the plaintiff be and she is divested of any interest by way of dower or otherwise in the Bourbon County, Kansas, farm owned by the defendant.
“It is by the court further ordered that the defendant pay the costs herein.”

It is to be observed that there was no agreement between the parties as to support, the agreement pertaining only to alimony.

We conclude, therefore, that the Tullis case does not control nor apply to the facts in the instant case and that, under the rule in the Corbett case, the Court had power to reduce the award.

The application for rehearing made by plaintiff-appellant is denied, and the judgment of the Trial Court is affirmed.

NICHOLS and FESS, JJ, concur.


author: By CONN, J.

text:
    JACOBS, Jr., Plaintiff-Appellant, v. CORNELL, Admr. BUREAU OF UNEMPLOYMENT COMPENSATION, Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 5366.
    Decided February 10, 1956.
    Clement V. Jacobs, Dayton, for plaintiff-appellant.
    C. William O’Neill, Atty. Geni., John W. Hardwick, Asst. Atty. Geni., Columbus, for defendant-appellee.
    (CONN, J, of the Sixth District, sitting by designation in the Second District.)
   OPINION

By CONN, J.

This is an appeal from the finding and judgment entered in the Common Pleas Court against plaintiff-appellant and in favor of defendant-appellee, whereby it was determined that plaintiff was the successor in interest of the business of one Eugene Wells, doing business as the Wells Sohio Service Station, located at 2111 South Dixie Drive, Dayton, Ohio. Said finding and judgment affirmed the decision of the Administrator of the Bureau of Unemployment Compensation who had previously determined that plaintiff-appellant was the successor in interest of the business of said Wells and, therefore, must assume the “liabilities of his predecessor’s account with the Bureau of Unemployment Compensation of the State of Ohio.”

The pertinent and material facts are not in dispute. Briefly stated, the record discloses that in January, 1953, Eugene Wells, with the assistance of the Standard Oil Company, agreed to purchase from one Praetor, the ' gasoline filling station above described; that Wells did not have sufficient cash to close the deal; that a representative of the Standard Oil Company contacted plaintiff-appellant (who sit that time was engaged in the business of handling Standard Oil Products), for financial assistance to Wells to enable him to pay for the necessary merchandise and business of said station.

Two loans were arranged, one from Clement V. Jacobs, Sr., the father of the plaintiff, Clement V. Jacobs, Jr., for $3000.00, and one from the plaintiff for $750.00, each loan being evidenced by a promissory note and each note bearing date of January 19, 1953, payable in monthly installments of $100.00 and $25.00 per month, respectively.

On January 19, 1953, the Standard Oil Company gave Wells a lease for said filling station premises and, as Wells had no security for said loans, the said lessor had the lease run to Wells and also plaintiff, and for additional security, Wells entered into an “agreement of consignment,” dated January 19, 1953, which, by its terms, Wells agreed that the stock of merchandise shall be placed with him as upon consignment for sale to customers at retail and further, that Wells would replace said stock by order from the Standard Oil Company and kept at a value of at least $3000.00.

The agreement further provided that in event of default, the said payees of the two notes would have the right to go upon said premises and remove said stock, etc., and resell the same. The said agreement contained a further provision that Wells agreed not to mortgage or pledge said stock, equipment, etc., to any other party.

The record further shows that Wells operated the business until January 8, 1954; that by reason of financial difficulties, Wells could not continue the business and, at said time, voluntarily turned the business and what remained of the stock and equipment over to the Standard Oil Company and it is inferrible that Wells’ lease was surrendered and can-celled.

Upon taking possession, the Standard Oil Company took an inventory of the stock and equipment and credited the amount of same on the debt then owed by Wells to the company.

Thereupon the Standard Oil Company gave the plaintiff-appellant a new lease under which he took over the management and operation of the station.

The record further shows that no indebtedness of said business was assumed by plaintiff-appellant and that the Standard Oil Company did not look to him for any balance due and owing it by Wells. We quote briefly from the testimony of a representative of the Standard Oil Company, as follows:

“Q. Mr. Margraf from the standpoint of taking over a station from someone defaulting and I think he was in debt to Standard Oil Co. at the time — Gene Wells.
“A. Well yes.
“Q. How do you normally take a station back from a person who is in that position, that can’t go on with it?
“A. Well if a man can’t go on with a station and he hasn’t taken bankruptcy we try to recoup everything we possibly can.
“Q. Well do you find somebody to go into that station?
“A. Yes,
“Q. And do you exercise control over who goes into that station?
“A. Oh Yes.
“Q. You can’t just turn it over to anybody?
“A. No.
“Q. It has to be someone satisfactory to you?
“A. Yes it has to be somebody we feel will make a good operator and give service commensurate with our other stations.
“Q. I will ask you whether you knew at the time of take over that there was still money owing to Clement Jacobs?
“A. Yes.
“Q. And I will ask in consideration of that fact you considered Clement Jacobs, Jr. to take that over?
“A. That is right.”

The foregoing testimony is nowhere challenged and, further, it is corroborated by plaintiff-appellant and the testimony of other witnesses.

The Administrator found that Wells had borrowed $3750.00 from plaintiff-appellant and his father, and that thereupon Wells purchased the assets of Praetor’s Service Station and obtained a lease from the Standard Oil Company; that Clement V. Jacobs, Jr., signed said lease to protect said loan; that Wells and Jacobs did not form a partnership; that Wells being unable to further purchase supplies, the Standard Oil Company cancelled Wells’ lease; and that Jacobs obtained a new lease from the Standard Oil Company and took over the station.

The Administrator determined that on the basis of his findings that Clement V. Jacobs, Jr. became the successor in interest under the mandatory provisions of §4141.24 R. C., “and therefore must assume the resources and liabilities of his predecessor’s account with the Bureau of Unemployment Compensation of the State of Ohio.”

The decision of the Administrator and its affirmance by the Common Pleas Court, when considered on the basis of the undisputed evidence, requires an examination of the statute upon which such finding and judgment are predicated and from which plaintiff-appellant has taken an appeal.

We quote from the provisions of §4141.24 R. C., relative to the transfer by the employer of his business, as follows:

“* * * If an employer transfers his business or otherwise reorganizes such business, the successor in interest shall assume the resources and liabilities of such employer’s account, and continue the payment of all contributions due under §4141.01 to §4141.46, inclusive, R. C. * * *”

In express terms, the statute applies to a situation where an employer transfers his business to another or otherwise reorganizes such business, whereby such transferee upon taking over the business becomes “the successor in interest.”

In the instant case, there is no evidence to support the finding that Wells, as employer, transferred his business to Jacobs, or to anyone else. Wells unfortunately failed in business and was financially unable to longer carry on. Thereupon, having lost his business, Wells voluntarily turned back to the Standard Oil Company what assets were left, and at the same time surrendered his lease.

There is no evidence that plaintiff-appellant was a direct successor to Wells, in interest or otherwise. The relationship between Wells and Jacobs was that of debtor and creditor, and in a' substantial manner. The finding that Clement V. Jacobs, Jr., was the successor in interest of Wells, whether as a creditor of Wells, or by virtue of the new lease of the premises which he obtained, together with his subseqent conduct of the filling station business, pursuant to the terms of his lease, is without any foundation on the undisputed facts in this case.

Finding and judgment of the Common Pleas Court is reversed, as being manifestly against the evidence and contrary to law. Cause remanded to the Bureau of Unemployment Compensation for execution for costs.

MILLER, PJ, HORÑBECK, J, concur.


author: By THE COURT:

text:
    CENCEBAUGH, Plaintiff-Appellant, v. RIDLEY, Defendant-Appellee.
    Ohio Appeals, Second District, Montgomery County.
    No. 2219.
    Decided April 1, 1953.
    William T. Poliak, Dayton, for plaintiff-appellant.
    Curtner, Brenton & O’Hara, Dayton, for defendant-appellee.
   OPINION

By THE COURT:

This is a law appeal from the Common Pleas Court of Montgomery County, which directed a verdict for defendant at the close of plaintiff’s case.

Three errors are assigned, all of which raised the question as to the sufficiency of the evidence on the issue of agency.

The evidence shows that on the evening prior to the accident the defendant loaned his automobile to his brother for the brother’s own personal use. The next morning the brother was returning the automobile to the defendant when the accident occurred. The trial court ruled, and this Court finds, that at the time of the accident the brother was driving the automobile on a mission of his own, and that the doctrine of respondeat superior had no application. The trial court properly directed a verdict for defendant.

Finding no error in the record prejudicial to the plaintiff-appellant, judgment is affirmed.

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