author: By CONNELL, J.

text:
    SMITH v. MAYFIELD HEIGHTS (City) et.
    Common Pleas Court, Cuyahoga County.
    No. 633026.
    Decided April 28, 1952.

      George J. McMonagle, Cleveland, for plaintiff.
    Squire, Sanders & Dempsey, Cleveland, for defendants.
   OPINION

By CONNELL, J.

This cause came on for hearing on the pleadings and the evidence, all parties requesting declaratory judgment of the court in their favor. Substantially, plaintiff asks that he be declared the police chief of the City of Mayfield Heights, Ohio, by reason of the fact that he had been police chief of the Village of Mayfield Heights, Ohio, before its status was changed to that of city on October 5, 1951; substantially, defendants claim that the change of status of such village to that of city created a vacancy in such office.

The petition of the plaintiff alleges that the City of May-field Heights came into existence as a city on October 5, 1951, it having been previously a village,, and that defendant, Henry Ritter, Jr., became mayor of such city on January 1, 1952. Plaintiff claims that he had been chief of police of the Village of Mayfield Heights from April 23, 1947 and had been a member of its police department for approximately fifteen years in all.

Plaintiff claims that the City of Mayfield Heights adopted a city charter as of January 1, 1952, Article III, Section 3 (D) of which gives such mayor power to appoint or remove any official or employee of such city, with the exception of elective officers, subject to the charter itself and the laws of Ohio.

Plaintiff says that Article V, Section 7 of such charter contains a provision pertinent to the Civil Service Commission of the city and its powers which section contains a clause to the effect that “Any person who shall have served the city for at least one year next preceding the taking effect of this charter may be retained in the same or any similar position without examination.”

Plaintiff claims that he has a vested right in his office as chief of police of the City of Mayfield Heights by reason of the application of §§4384, 486-1 to 486-31 inclusive, and 486-179 GC.

Plaintiff further claims that as a member of the police department of the Village of Mayfield Heights since his original appointment on April 7, 1937 that he has acquired rights in a Police Relief and Pension Fund based on his approximate fifteen years of service and his contributions thereto.

Plaintiff says that defendant Mayor Henry Ritter, Jr. threatens to discharge him and deprive him of all of his rights and plaintiff asks a judgment declaratory of his rights under §§12192-1 and 12102-6 GC, inclusive.

Plaintiff prays that in the declaratory judgment which he asks that this court determine whether such mayor has power to remove him under Article III, Section (D) of such charter; whether plaintiff retains his rights as chief under such charter; whether §§4384, 4263-4267, 486-17 A GC apply, and whether charges could be made against plaintiff for acts occurring before January 1, 1952.

A temporary restraining order having been issued against defendants by this court, all parties are still in status quo.

Defendants’ answer admits that had this court not issued its restraining order a successor to plaintiff as police chief would already have been appointed. Defendants say that the office plaintiff held before December 31, 1951 expired as of that date and that the office of chief of police of the City of Mayfield Heights is now vacant. Defendants deny plaintiff’s right to such office.

Defendants admit that Mayor Ritter, Jr., before taking office had stated that he didn’t believe that plaintiff “ought to be Chief of Police and that upon becoming Mayor he would bring about his removal.”

Defendants ask the court to declare that the office previously occupied by plaintiff as Chief of Police of the Village of May-field Heights automatically expired on December 31, 1951 and that plaintiff does not now hold such office.

Counsel on both sides have kindly furnished the court with voluminous briefs citing all Ohio cases considered by such eminent counsel to be here involved. There will be no need for the repetition of such citations herein.

It is here the primary function of the court to determine whether or not plaintiff is entitled to a declaratory judgment in his favor by reason of the factual history involved concerning which there is no disagreement.

That factual history includes the proposition that defendant Mayor Ritter, Jr., personally threatened to accomplish the removal of this chief of police as soon as he thought he had power to do so. Such mayor rather boldly admits in his answer that such was his intention and that only for this court’s injunction his intention would have been effectuated ’ere now; he here asks such judgment as would make the court an instrumentality for fulfilling his threat. The court is a little fearful that personal motives and animosities have entered into the controversy and that defendant who styles himself “a strong mayor” is in a position like Herod, who, having promised a head, will be embarrassed if he can’t deliver. Indeed, politics some times creates strange situations for the law because executives oft-times make decisions as a matter of what is expedient to them politically and then expect lawyers and courts to justify their actions.

And since the primary question determinative of the case is one of construction and legislative intent, we must ascertain what the legislature had in mind when it enacted §4384 GC effective September 5, 1941.

We must assume that our legislators are intelligent, capable, and honorable law makers, cognizant of the history which in each instance leads to the desirability of making or changing laws. Generally, they are men whose vocations are law, business, or farming, and whose avocations become that of lawmaking through selection and election of the people. Generally, they are men of practical experience, judgment, and common sense. With some specialized legislation they may not be universally familiar, but with fire and police legislation they are quite universally familiar because within the last two decades they have so successfully solved fire and police problems that litigation on the subject has almost ceased.

The work of firemen and policemen is in a class entirely by itself. While the purpose of government is to secure our rights, there are nevertheless very few functions which the government performs for the people which the people could not have performed for themselves. The exceptions are the work of the fire, police and health departments, each of which requires the ability to cope with emergencies not susceptible of control except on the part of brave men who have had years of practical experience in eating smoke or dodging bullets or controlling epidemics, all of which is well known to our legislators, and which has been the reason for the withdrawal of city control over these three functions on the part of the state for the benefit of the people. Gradually it has been recognized throughout Ohio that this is a problem of statewide concern requiring state sovereignty and control to insure uniformity, co-operation, and state-wide protection. Repeated wars and their constant suggestion of catastrophic dangers impels it. The legislature recognized the need decades ago. The courts recognized the right of the legislature and backed it up in its enactments. The cities, particularly the charter cities, have never ceased in their efforts to prevent two of these departments from coming under the operation of uniform state-wide laws and sovereignty. Those who study cities and those who observe the conduct of the winners in our municipal biennial popularity contests well know this weakness in our system. Our Supreme Court and Appellate Court reports for the last three decades are replete with cases in which cities, particularly charter cities, have sought to question, evade and defeat all of the legislation enacted to bring these two departments under uniform law and state control. The cities and their two-year executives have sought to retain these two departments in the realm of politics, for their own good as distinguished from that of the people.

Probably ninety-five percent of such cases relate to the efforts of elected officials to remove police officers from their jobs; probably five percent relate to similar efforts with reference to firemen. This endless game of political football is not unknown to legislators.

There must have been some cogent reason for much of this wasted effort, for most of it was wasted due to the fact that our Supreme Court understood it and decided time and again in favor of the proposition that these departments are under state control and jurisdiction because of the state-wide nature of the work and for the better protection of the people. There must also be a cogent reason why attack is made on the police department with such greater frequency than on the fire department. The reason for this is well known to newspaper men, civic students, lawyers, judges, mayors, and legislators.

Civil service rules in all cities prohibit firemen and policemen from political activity in behalf of candidates. Yet for many decades in our own presumably great city, the winning candidates punished those members of both departments who failed to help them in their efforts and rewarded those who did. Such was the standard political practice. Men were thus punished by their civilian superiors for failing to do what they were forbidden to do, all of which legislators know.

It is hardly conceivable that any one could make corrupt money by failing to promptly and efficiently put out a fire. It is easily conceivable that one could make corrupt money by failing to enforce the law. That is the reason for the disproportion in the number of times policemen are attacked by officials as distinguished from firemen. It is well known to legislators and many others that while police should be able to ascertain the existence of commercialized crime, gambling and vice, that such unlawful enterprises, in our great American cities, rarely originate without the advance approval of elected officials who always have the advantage of receiving complaints first, and who then undertake to dictate to the military arm of the city, which is the police department, as to who shall be punished and who shall not. It is no wonder that the legislature and the courts have made an effort for some decades to get this department in particular out of politics. Since there is often corrupt money made in the civilian manipulation of police departments which are constantly under pressure, this effort to keep the police departments in politics perpetually is understandable, and legislators understand it.

These two departments are composed of men who run greater risks than any other public servants except the military under fire. They are paid no more than those who run no risks. No one earns more gratitude from the public or probably receives less for lack of due understanding. They go towards the maniac with the shotgun, or the gas tank about to explode, while all others hasten the other way; the thought of the pension which protects their families may account to some extent for their lack of hesitation, all of which legislators well know. Their bravery is shared by health departments, equally unappreciated, equally protected by state law.

It is not so long ago that civil service commissions were very busy all over Ohio reviewing cases of policemen and firemen who were discharged by officials for divers reasons. Such commissions generally owe their appointments to officials. Such commissions generally sided with the officials which appointed them. Suddenly all such activities ceased; it is now a rarity. This was accomplished by our legislators who passed a law giving every policeman and fireman a right to appeal his dismissal to the Common Pleas Court by his mere filing of a letter of protest. When it became a fair fight in open court the officials lost their zest. This effort of the legislators to operate these departments on a statewide basis, which has been backed by the courts, was one of the most salutary improvements in giving some protection to the men who protect us.

Instances of injustice to the men in these departments committed for political or for worse reasons could be given without number. The legislature has constantly sought to put them in a position where they will be immune from political attack. It has done a splendid job of protecting them by law in days when we are fast becoming a government of men and not of law.

These are days when men thirst for power, as long as it is at the expense of another; when men swear on a bible to uphold the constitution with one hand while they laugh up their other sleeve; our historic system of checks and balances in three departments of government appears to have lost its application to the executive branch.

The legislators of Ohio have recognized this danger because of the unceasing effort of political executives to prevent the application of state-wide law to the two departments which most protect the people. The legislature well knew that villages grow up and become cities. It knew that villages had fire and police departments which constantly cooperate with the departments of contiguous, proximate and surrounding areas in fighting crime or fire. The legislature knew that if a village blossomed into a city that the new mayors might seize an opportunity to suggest that such change created a vacuum in positions and that mayors, who are but temporary, might discharge police and fire chiefs, whose permanence is a protection to the people because they devote their lives to learning the area, its buildings, the dangers, and how to handle their equipment alone or in conjunction with others. This injustice mayors might readily commit in order to make their political friends chiefs of police and fire overnight. The legislature must have contemplated that police and fire chiefs built up years of service and experience which should not be so cheaply sacrificed to pay political debts. It contemplated that police chiefs understood traffic, crime, crime prevention, crime detection, and had worked in conjunction with all surrounding police departments. This law is in effect eleven years. During those eleven years villages have constantly blossomed into cities. We find no reported instance of any previous claim of any mayor similar to the contention of this one. We find no recorded instance of any mayor attempting to commit the obvious injustice which this one here threatened to commit and boldly says in his answer he would have already consummated had he not been enjoined.

In 1941 the legislature made all village marshals into chiefs of police. Was their purpose only a change of a title? Or did they contemplate that villages become cities and that the experience of men in such villages might be well utilized by the same population for their protection even though there was a change in legal status due to an increase in population?

Would there be more difference in the duties of the chief of police of Mayfield Heights today as distinguished from what it was last December? In a month would the danger of fire or crime differ? And if it did, who would have better capacity to solve the problem for the benefit of the people, — those who had been fighting the fires and crimes for years, or some political obligee of last year’s election?

Defendants say that Section 4372 gives a police chief of a city control of the stationing and transfer of men and that such is greatly different from previous duties of police chiefs in villages as distinguished from cities. Whoever knows about the practical application of this statute knows how ridiculous this contention is, even in the large cities. Will there be any more stationing and transferring of the handful of men in Mayfield Heights necessary today than last year? How many different stations are there to which they might be transferred? Who stationed them heretofore? Is this not a distinction without a difference? When §4384 GC relates that the marshal is chief of police did not the legislature know what the head of a police department does? When it relates that such police chief continues in office until removed as provided by §§4263-4267 GC, didn’t the legislators know that villages blossomed into cities? Had they intended that the office of police chief of a village became voided and vacant and nonexistent because villages become cities, would they not have said so, in view of their knowledge of the struggle which has been going on for decades to prevent police departments from coming under that state control which the legislature intended, and which our highest court has repeatedly approved?

We hold from the language here used that the legislature meant what it said; that it contemplated full well that villages become cities and that it was their intention that the chief of police of the village continue in his office, with his work, his duties, his responsibilities, irrespective of the change in the name and status of the political subdivision because by so doing the people would be better protected and the continuity of protection would be ensured. Obviously, the legislature contemplated that police and fire chiefs of years of experience in villages would know at least as much about the protection of the people as would any newly-born chief whose qualifications consisted of political friendship for the winner in the last election. Mayors come and go; they -are expected to be temporary. The legislature enacted a system of state-wide pensions for police and firemen because we had hoped they would not be temporary.

Our legislature set up a pension and retirement system for police and firemen which is also state-wide in its application. Formerly, such rights were entirely subject to the whim and caprice of every mayor and city council in Ohio; there were as many different systems as there were mayors. Many municipalities fought the state-wide pension system; some cities refused to initiate one; some sought to abandon it after it existed; some sought to destroy departments to avoi'd it. Nevertheless, the statutes, as construed by the courts, prevailed, and the state-wide system of police and fire protection now gives its protectors such state-wide pension protection. But the cities gave our Supreme Court a busy decade after that particular enactment.

This particular plaintiff has an investment of approximately fifteen years of his time, effort, and personal risk in this department. Defendant mayor would destroy all of his rights in their entirety overnight. In his brief he intimates that plaintiff really has no rights since it would take ten more years of service for him to collect full pension. Defendant mayor would lightly dismiss the past fifteen years of service of this plaintiff which elapsed before such mayor arrived on the scene. Certainly the legislature never intended that this plaintiff or any police chief would be so defrauded of such investment which he made in himself for the ultimate benefit of the people. It did not intend that he be thus cheated because a village grew up. It did not intend that because more people lived within certain boundaries than formerly that the fifteen year experience of this chief should be destroyed to the detirment of the people. If the theory of this defendant mayor should here prevail, then there would be offered by law, to all future winners in election contests, the inducement and opportunity of making their political friends into police and fire chiefs over-night on the theory that vacuums were created because of change in status. Our legislature never intended to invite any such political orgy of decapitations of its experienced, competent and loyal safety chiefs, just to give new mayors a chance to pay off.

It is not mere coincidence that defendants here have no precedent for their claims; in general, the people of Ohio have learned that these departments are in an especially protected class by themselves, not for their own sake, but for ours; our people have learned that the legislature intended them to come under state-wide control, sovereignty, and protection, and the decent law-abiding people of Ohio have come to respect the class, the condition, and the law which protects them to protect us. The legislature never intended any vacancy or vacuum in the office of chief of police merely because populations increased; it really abolished the very title of marshal and set up a police chief to head its every police force in contemplation that as the village became a city the chief would continue in office until removed for statutory causes for removal, and it very plainly said so. It could not have intended to cause certain chaos, confusion and political preferment in the maturing of every village, at the expense of their noblest and bravest public servants who would thus become victimized for having been loyal, whose investment in themselves would thus become destroyed, whose wives and children would have become robbed of their pension rights, all, just to make way for incompetent successors at the selection of men whose very competency would have been disproved by such selection. No Ohio legislature ever intended that. None better understand the danger than the Ohio legislators. Our legislature condones no form of cheating; by this enactment it seeks to prevent it, as does this court, though we all appreciate such efforts will never cease for reasons heretofore set forth.

Much has been said of Mayor Defendant’s authority to discharge plaintiff under Article III, Section D, of the new city charter. We cannot agree with the strained construction defendants would have us put on the language involved but irrespective of whether or not the language in question undertakes to give this mayor power to discharge this police chief instantly on his entering office, the fact nevertheless remains that the statutory enactment of our legislature must be complied with and there is but one way to remove this police chief from office and that is in strict accordance with the statute itself. Of course, the provisions of the charter cannot negative state law, and the framers of the charter so recognized when they made it subject to “the laws of Ohio.”

Of course, these defendants were not involved in any of the past controversies or history which has here been mentioned; it is merely set forth as explanatory of what the legislature knew, what they sought to avoid and the means of prevention they utilized in the formulation of the law.

Does the legislature have the right to enact a statute carrying over the office of chief of police of a village to that of chief of police of a city subject only to removal under state law? To make the issue crystal clear, this court holds that the legislature does have such power and has properly exercised it herein. Police, fire and health protection are within the sovereign power of the state and cities and villages are but arms or agencies of our sovereign State of Ohio. The state may even withdraw powers which it has already granted in this respect. The state may impose duties and responsibilities on municipalities as its arms or agencies. It may require that policemen can be suspended only in conformity with state law and not in conformity with a differing city charter. It may require the cities to use certain platoon systems in the fire departments and to give firemen twenty four hours off duty after twenty four hours on; it may require the cities to provide the necessary funds to maintain the fire department under such conditions. The legislature may decrease, change, regulate, or take back powers which it has already given to municipalities.

When the legislature permits a municipality to become part of its sovereign arm, the municipality becomes immune from liability because it partakes of the nature of sovereignty and has become a governmental agency.

Basically, police, fire and health protection are the responsibility of the state even though such departments may appear physically in their origins to have been municipal ventures, but the fundamental responsibility is that of the state, and it may properly prescribe the manner in which the people are to be protected when villages emerge into cities.

When the village emerges into a city the change is physically difficult to perceive. Only the census taker can prove it. Fire, police and health work goes right on as if the change had never taken place. The state has a special interest in insuring that it will.

Villages, cities, or their mayors have no special property rights in these branches of state sovereignty of which the municipality becomes an arm or part. All police departments of all villages and cities are but branches of state sovereignty which derive their primary responsibility from the state for the purpose of enforcing state law. The Constitution which guarantees life, liberty and property requires the state to defend such rights and the agency of the state for that purpose is the police departments of the municipalities throughout the state, although the responsibility of the state does not end at city limits. We quote from the cited case of Cincinnati v. Gamble, 138 Oh St at page 231, 20 O. O. 278, as follows:

“Control of deadly, contagious diseases may often require uniform state action; prevention of fire may be ineffective without unified effort reaching into urban, suburban and rural sections; and the policing of the state might well be inadequate to public need if done by a state constabulary with power to act only in areas outside municipalities. The state must remain sovereign in all such affairs else its authorities cannot protect rights assured to its citizens by its Constitution. These are fundamental reasons why police, fire and health undertakings are essentially attributes of state sovereignty and matters of state-wide concern.”

When the legislature lends part of its sovereignty to its agent, whether it be village or city, it retains the power to decide how the village or city will carry out the function of preserving peace and protecting people and property. See State, ex rel v. Houston, 138 Oh St 203, 20 O. O. 265, syllabus 2:

“Power is granted to municipal corporations to legislate in the interest of public peace and the protection of persons and property within their territorial limits, but such legislation must not conflict with state legislation on the same subject, and there is reserved to the Legislature power to direct the manner and method by which municipal corporations shall effectively carry out their functions having to do with the preservation of the peace and the protection of persons and property.”

We hold that a statute carrying over the office of chief of police of a village to that of chief of police of a city which evolved from that village comes within the power of the legislature to decide just how peace will be best preserved and life and property best protected. If any better method will ever be devised than the one the legislature so selected, that method must of necessity also emanate from our legislature in order that state sovereignty be uniformly exercised.

Our Supreme Court has very well explained this proposition with respect to fire departments, which explanation applies with equal cogency to police and health departments as appears in the following excerpts from the same case:

138 Oh St, 211, 20 O. O. 269:

“It is a matter of general knowledge that the ownership of property in a municipality is not wholly confined to its inhabitants but some of it is owned by nonresidents; that the ownership of shares in corporations owning the large business and manufacturing properties of the cities are widely held; that large numbers of people residing outside the municipalities are constantly going within their boundaries, entering places of business and places of abode, and being exposed to the hazards of disastrous fires; and that through the growth of urban populations, the boundary lines of separate corporations are often coincidental with each other with the result that the residents of one municipality are constantly exposed to fire hazards of contiguous municipalities. The protection of life and property from the hazards of fire, conserves the private as well as the public resources of the country and consequently is a matter of public welfare and concern:

138 Oh St, 212, 20 O. O. 269:

“Likewise, adequate fire protection calls for the employment of great numbers of men who are obliged to live under modes of life and conditions of employment which take them away from their homes for longer intervals of time than most employments, and which expose them to unusual dangers of life and limb. Likewise, the health of such employees is constantly placed in jeopardy by the incidents of their employment. These are considerations which call for the exercise of the police power in the interest of the public and the state. The Legislature is given large discretion in determining the measures which are necessary or appropriate to secure the public welfare. Statutes to promote such* purposes are upheld, if possible, and it is only when the Legislature clearly transcends its powers that such statutes are stricken down.”

138 Oh St, 214, 20 O. O. 270:

“When the policy of the state of Ohio relating to fire protection and to the welfare of firemen, as expressed in state legislation and in court decisions, is taken into consideration, the validity of the statute in question must be sustained. The state, through legislative enactment, has established a statewide fire protective policy in providing an exhaustive state building code, to protect against fire hazards; and a department of workshops and factories to inspect buildings and eliminate fire hazards by ordering alterations and preventing the use of buildings until compliance with lawful orders for alterations. The state has established a tenure subject to removal for cause for the members of the fire departments of villages of the state (§4389 GC), and a civil service status for firemen in cities (§§4378, 4380 GC), and a state-wide system of firemen’s pensions, all of which are considered matters of state-wide concern and subject to state legislation. Thompson v. City of Marion, 134 Oh St, 122, 11 O. O. 549, 16 N. E. (2d), 208.”

Defendants’ authority, the Serp case, has no application to the office of police chief which came under the special protection of our legislature through the statutory enactment which became effective nine years after the rendition of such decision.

We direct counsel to furnish journal entry of declaratory judgment to the following effects:

1. A finding that Defendant Mayor', has no power to reduce or remove plaintiff from his office of Chief of Police of the city of Mayfield Heights under Article III, Section D of its charter;

2. A finding that plaintiff is now Chief of Police of Mayfield Heights;

3. A finding that plaintiff’s tenure is subject to the laws of Ohio mentioned and to state-wide jurisdiction.

The court will not grant declaratory judgment as requested by plaintiff to the effect that hé can not be charged with acts which may be claimed to have occurred prior to January 1st, 1952. Charges may be brought, in conformity with the law, subject to ultimate review of the Court of Common Pleas, at any time, against any police chief in this state. There can be no legal objection to the fair trial of any police chief at any time on any charges properly brought. There can never be objection to proper legal attack, all of which is subject to ultimate review by this court. There is objection to the within attempted attack, disgrace, loss of personal and property rights, all without charge, trial, or any pretense of plaintiff’s chance to appeal to the court. If plaintiff or any one else is to lose any rights let him lose them in accordance with the laws of Ohio and not merely in accordance with the whim or caprice of any self-styled “strong mayor” who promises his head in advance.

Our cities should not begrudge the legislature that retention of power over these three departments which our Supreme Court has repeatedly stated comes within the legislature’s duty of preserving peace and protecting persons and property. Nor should executives exhibit unwillingness to abide by court decisions which approve such proper enactments of our legislature in the performance of its responsibilities.

If this is a government of laws and not of men then all three departments must operate under our American system of checks and balances.

Counsel are directed to so prepare such journal entry of such declaratory judgment re issues involved.


source: Caselaw Access Project

author: By THE COURT. By THE COURT.

license: Public Domain

text:
    MOELLER et, Plaintiffs-Appellees, v. OMAR, Inc., Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 4185.
    Decided February 13, 1951.
    Milligan, Blair & Carpenter, Elwood L. Carpenter, of Counsel, Columbus, for appellees.
    Willis H. Liggett, Columbus, for appellant.
   OPINION

By THE COURT.

This is a motion submitted by the defendant-appellant seeking an order requiring that each of the parties hereto make a deposit of funds with the proper officer or official of this Court, in an amount which shall be sufficient to pay to Hazard Okey for his services to be rendered as special master commissioner.

The motion will be sustained to the extent that each party will be required to make necessary arrangements with the master commissioner to secure him for the taking of the testimony which they desire to submit in the case.

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

Decided September 27, 1951.

Addison & Carpenter, Elwood L. Carpenter, of Counsel, Columbus, for plaintiffs-appellees.

Willis H. Liggett, Columbus, for defendant-appellant.

No. 4185.

OPINION

By THE COURT.

Submitted on motion of plaintiffs-appellees for an order to permit them to give further testimony before Hazard Okey as Master Commissioner, herein, on the sole issue of whether or not the defendant-appellant proposes to use the premises in question as a parking lot.

The cause has been submitted to the court but no decision rendered. The appeal is on questions of law and fact. Although the plaintiffs rested their case there is no stipulation which would preclude the order of the court sustaining the motion. Manifestly the failure to introduce the testimony resulted because of a misconception on the part of counsel for the plaintiffs as to the making up of a proper record in this court.

The court in the interest of justice and within its discretionary power sustains the motion and fixes a time within which the testimony shall be taken as ten days after the journalizing of the entry on this motion. We will then take the case without further oral argument and without further briefs unless counsel request time within which to brief the new question, if any, raised by the additional testimony.

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


author: By HURD, J: By SKEE'L, PJ.

text:
    HAMILTON, Plaintiff-Appellee, v. CLEVELAND (Transit System) (City), Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22303.
    Decided February 18, 1952.

      Sindell & Sindell, Cleveland, for plaintiff-appellee.
    R. J. Shoup, R. C. Green, Cleveland, for defendant-appellant.
   OPINION

By HURD, J:

This was an action of tort instituted by plaintiff to recover damages for injuries claimed to have been proximately caused by defendant’s negligence when plaintiff was a passenger on one of defendant’s motor coaches.

A noval factual situation is presented, involving important principles of law governing common carrier-passenger relationships. Plaintiff alleges in her second amended petition, in substance, that on or about the 12th day of April, 1949, at about fiv.e o’clock P. M. she became a passenger on a Cedar Avenue line bus operating in a generally easterly direction in the City of Cleveland, boarding said bus at the intersection of Ashland Road and Cedar Avenue; that she seated herself in the front part of the bus; that subsequently another passenger boarded the bus and, standing at the side of the operator, proceeded to engage the operator in extended conversation; that the operator likewise engaged in conversation with the passenger while operating the bus; that while so engaged in conversation, the passenger removed a loaded revolver from his pocket, showing the same to the operator; that the operator carelessly and negligently permitted the passenger to expose and handle the revolver; that without warning to plaintiff, the revolver was suddenly and violently discharged; the explosion causing a concussion of the brain, injuries to the structure thereof, a rupture of plaintiff’s eardrum and other injuries described at length in the petition.

The petition contains five specifications of negligence. Summarizing and paraphrasing these specifications, it is alleged in substance that the defendant was negligent in failing to exercise the highest degree of care consistent with the normal operation of the railway, in that the operator of the motor coach, in disregard of the safety of other passengers, negligently carried on a running conversation with a passenger who was, during the course of the conversation, exhibiting and handling a loaded gun in such a manner that it was discharged, injuring the plaintiff, when the operator knew, or should have known, that in all reasonable probability danger to fellow passengers, including the plaintiff, was thereby created and existed or was reasonably to be apprehended and that by the use of a proper care on his part the injury could have been' prevented.

The answer of defendant, while denying generally the allegations of the petition, admits that plaintiff was a passenger and that another passenger discharged a revolver.

Upon trial, the testimony of plaintiff supported the general allegations of the petition. In particular, she testified that she seated herself opposite the operator of the bus when it reached East 62nd Street; that at East 79th Street a policeman friend of the bus driver boarded the bus and immediately engaged in conversation with the driver, exhibiting to him a black object, which the evidence developed was a 32 Caliber Colt Automatic revolver. The plaintiff testified that the policeman passenger was showing this revolver to the bus driver for a period of four or five minutes, when the revolver was discharged so that there was “a terrific explosion, a terrific blast,” by reason of which she suffered the injuries of which she complains. Plaintiff testified further that the operator of the coach, during the conversation with the passenger, was watching “whatever this man had in his hand” and was giving such close attention to the conversation that he almost ran into a car coming from the opposite direction.

The evidence also shows that at the time plaintiff was injured by the concussion resulting from the discharge of the gun, the bus driver was shot in the leg and was immediately removed from the bus to a hospital.

Upon the conclusion of all the evidence, the court, upon request of the defendant, over objection of plaintiff, submitted in writing two interrogatories for answer of the jury, to be returned with the general verdict. The jury returned a general verdict for plaintiff in the sum of Nine Thousand Dollars ($9,000.00). The interrogatories and the answers returned thereto were;

“1. Do you find from the evidence in this-case that the motor coach driver was guilty of any negligence?
“A. Yes.
“2. State in what respect that negligence consisted.
“A. Violation of company rule. Negligence in driver having unnecessary conversation with passenger and paying attention to conversation of passenger.”

A motion for judgment non obstante veredicto, a motion for judgment on the interrogatories and a motion for new trial having been overruled, the case is now before this court, having been appealed on questions of law.

No question is seriously raised as to the nature and extent of plaintiff’s injuries, or as to the amount of the jury’s verdict, but an issue of sufficiency is raised as to the questions of negligence and proximate cause, the defendant’s first and second assignments of error being:

“1. That the court erred in overruling the motion of defendant for a directed verdict made at the conclusion of plaintiff’s case and renewed at the close of all the evidence.
“2. In overruling motion for judgment non obstante veredicto.”

Other assignments of error are:

“3. In overruling motion of defendant for judgment on finding of fact submitted by defendant, and answer thereto.
“4. Error in the admission of evidence.
“5. Error in charging the jury respecting Rule T, the rule against conversation by the Operator.”

Considering first, assignments of error one and two, the record sets forth a pertinent comment made by the trial judge when passing upon a motion for a directed verdict, which we quote in part as follows:

“Evidence in this case discloses the plaintiff was a passenger, having boarded a bus of the defendant Cleveland Transit System, a bus or a trackless trolley, on Cedar Avenue in the vicinity of Ashland Road, and as a consequence it became the duty of the defendant, the duty which is owed to plaintiff, to exercise the highest degree of care for the safety and protection of the plaintiff as a passenger commensurate with the normal management and operation of the defendant’s business * * *.
“The nature of the negligence claimed in this case as set forth in the plaintiff’s petition is to be distinguished from the nature of the cases almost universally found in the authorities cited by counsel for the defendant as its reasons for the motion which was made. Practically all of those authorities are based upon the theory that the plaintiffs were suing the carriers for negligence in preventing a wilful act or wilful tort by a third person.
“Plaintiff’s evidence in this case is that after she boarded the trolley bus, soon thereafter a third person boarded the bus and almost immediately engaged the operator in a conversation and during the course of the conversation he extracted from his pocket an object, which later turned out to be a pistol, and in the course of this conversation with the defendant’s employee, lasting four or five minutes as the plaintiff’s evidence indicates, that this pistol was exploded and that as a consequence of this explosion of the pistol the plaintiff in this case suffered a punctured eardrum and the injury which she told of on the witness stand.
“The evidence in this case indicates, and giving it most favorable interpretation, that for a matter of four or five minutes the motor operator knew, saw and probably engaged in conversation with the passenger holding the pistol: that he did nothing to warn this passenger of the danger of exhibiting and fondling a gun in the loaded bus.
“There is nothing in the record to indicate that the operator ordered the passenger to put the pistol in his pocket, but on the contrary, the evidence supports the plaintiff’s theory that the bus driver engaged in a conversation with this passenger about the gun, independently of the evidence of the so-called rule governing the employee, the rule of the Cleveland Transit System which presumably proscribes any lengthy conversations with passengers, independently of that rule, it is the court’s view that there is a sufficient amount of evidence to go to the jury as to whether or not this motor operator or this trolley bus operator was guilty of negligence in permitting this passenger to be fondling this pistol in this loaded bus * * *. It is the view of the court that these questions are jury questions, the question of negligence and the question of proximate cause of such negligence are jury questions, questions which must be submitted to the jury in the face of the evidence that we have before us.”

If this statement made by the court for the record is correct, the issue of sufficiency raised by assignments of error numbers one and two is well met.

Counsel are in agreement as to the applicable law, to this extent that both rely upon the rule stated in 13 Corpus Juris Secundum, page 1295 wherein the author states:

“It follows that the liability of the carrier arises not . alone from the fact that the passenger has been injured, but from the failure of its agents or servants to afford him proper protection, and hence unless such agents or servants know or ought to know that danger from fellow passenger exists or is reasonably to be apprehended, and can, by the use of proper care, prevent the injury, the carrier is not liable. Thus the carrier is not liable where the injury is caused by acts of a fellow passenger, which its agents or employees had no reason to apprehend, and which they could not, by the exercise of proper care, prevent. It has been stated broadly that a carrier is required to interfere with the voluntary acts of passengers only where such acts constitute a breach of the peace or are such as to suggest a reasonable probability that injury will result to others.”

To the same effect see also: 10 American Jurisprudence “Carriers” Sec. 1454 and Sec. 1455, pages 268, 269. See also: Annotation in 140 A. L. R. p. 1194, where the author comments:

“The general rule is-that a carrier will not be held liable for injuries to passengers caused by the negligent or meddlesome conduct of other passengers, unless the carrier has notice of such conduct and reason to anticipate that injury may result therefrom.”

And at page 1195:

“Conversely, where a carrier permits conduct on the part of its passengers which may reasonably be foreseen to result in injury to other passengers and such injury follows the carrier will be liable.”

Many cases from many jurisdictions are cited in support of this Annotation which discusses liability of a carrier for an injury to a passenger, caused by the negligent or meddlesome conduct of a fellow passenger, but which excludes liability for an assault by one passenger on another, a subject with which we are not here concerned.

The prime test applicable to all carriers in cases of this type, is the presence or absence of evidence of notice or knowledge on the part of the employee of the carrier. This means evidence showing that the employee knew or, in the exercise of due care, should have known from all the facts and circumstances that danger of injury to the passenger was created or existed or was reasonably to be apprehended in time to take some reasonable action or precaution looking to the prevention thereof.

In the absence of such notice or knowledge, there is no liability but in the presence of evidence of such notice or knowledge it becomes a question of fact for the jury whether a railway employee, a conductor or operator, exercised that degree of care required of him by law. If the evidence of such knowledge is present, it follows that the question of proximate cause likewise becomes a question of fact for the jury.

The evidence in the instant case shows that the bus operator and the policeman passenger were on friendly terms, the policeman who was off duty at the time having been formerly a bus driver himself, and a fellow employee of the bus driver of the transit system. The evidence also shows they were both interested in guns and it is admitted by both that the conversation was about the gun.

There is evidence tending to show, although in dispute, the running conversation between the bus driver and the policeman friend, was carried on from the time the latter boarded the bus until the time the gun exploded; that meanwhile the bus driver was continuing to operate the crowded bus, stopping to take on and discharge passengers, all of which was taking place on a busy street during a heavy rush hour of traffic. There is evidence, although in dispute, tending to show that the gun was exhibited during the entire period of the conversation.

The policeman passenger admitted on cross-examination that he made a written report to his superior in the police department that at the time in question he was “showing” the gun to the transit bus driver when it exploded.

Under .these circumstances, it is quite probable that a few words of warning to put the gun away would have been sufficient, there being ample time to give such warning, if the jury believed the testimony of plaintiff, which by its general verdict and its answers to the interrogatories it evidently did. There is no evidence of such warning or admonition of any kind, but on the contrary, an apparent acquiescence or participation in the course of conduct which led to the explosion and resulting injuries.

Upon consideration of the entire record, we cannot say that evidence was lacking to support the material allegations of the petition. Applying the settled principles of law to the evidence, we conclude that the trial court did not err in submitting the case to the jury and in overruling the motion for judgment non obstante veredicto.

Considering now the error claimed in admission in evidence of the company rule T (3) and the claimed error on the part of the court in charging the jury respecting this rule, we find that the record shows that the court admitted over objection of defendant a company rule reading as follows:

“T. Passengers in coach:
“(3) Operators should answer all questions politely and accurately but should never carry on a conversation with a passenger beyond the point of necessity.”

We think this assignment of error must be overruled, since the Supreme Court has established the law on this subject in the case of Cincinnati Street Railway Co. v. Altemeier, 60 Oh St 10. In that case which apparently has not been overruled or modified, the court held:

“Rules adopted by a street railway company for the government of its employees in operating such railway are competent evidence when relevant, in the trial of a cause of damages for personal injury caused by the negligence of the servants of such company.”

There can be no doubt under the facts of the instant case that the rule in question was adopted by the defendant for the government of the coach operators, and was relevant to a determination of the issue of negligence on the part of the carrier, because undoubtedly the failure of its observance had a direct bearing upon the event which was responsible for the injury. If the employee of the carrier had recognized this rule and had complied with it, it is quite probable, if not certain, that the injury complained of would not have occurred. The jury, by its special verdict, determined that the conversation had been carried on beyond the point of necessity. The evidence is clear that there was no necessity for the conversation, with its concurrent circumstances, and if it had not occurred it is probable, if not certain, that the policeman friend of the bus driver would not have exhibited the gun and that there would have been no accidental explosion thereof and no resulting injury either to the bus driver himself or to his passenger. We think that in view of the issues made by the pleadings and evidence, the company rule was relevant and its admission in evidence did not constitute prejudicial error.

Considering next the error claimed in charging the jury in respect of the company rule. The record shows that the jury was instructed as follows:

“Evidence has been offered with respect to a rule of conduct promulgated by defendant for the government of its operators in their relation to passengers with respect to the subject of conversation with said passengers. You are instructed that a violation of such rule, if the jury finds such to have been the fact, is not negligence as a matter of law, but such a regulation is admissible in evidence as bearing on the question of the want of ordinary care. It is for the jury to determine, if the jury finds that a violation of such rule has been proven by the greater weight of the evidence, whether or not such violation constitutes negligence.”

It should be noted that the court did not charge the jury that violation of the rule, if they found it was violated, would be negligence per se, but instead instructed that such regulation was admitted in evidence only as bearing on the question of want of ordinary care and that it was a question of fact for the jury’s determination whether or not violation of such rule constituted negligence.

We conclude that the rule having been properly admitted in evidence, for the purpose indicated, the court did not commit prejudicial error in the charge theron. Therefore, assignments of error Nos. 3 and 4 are overruled.

This leaves for our final consideration the claimed error relating to the interrogatories and the action of the trial court in overruling motion of defendant for judgment on findings of fact returned in answer to the interrogatories notwithstanding the general verdict.

It is contended by counsel for defendant that the answer to the interrogatories is not a finding which would justify the imposition of liability on defendant, on the ground that the special findings are in conflict with the general verdict and irreconcilable therewith. No issue was raised nor could there be, in respect to the answer to the first interrogatory where the jury answered in the affirmative as to the negligence of the defendant, because this harmonizes perfectly with the general verdict.

Sec. 11420-17 GC provides:

“When either party requests it, the court shall instruct the jurors, if they render a general verdict, specially to find upon particular questions of fact to be stated in writing, and shall direct a written finding thereon. The verdict and finding must be entered on the journal and filed with the clerk.”

Sec. 11420-18 GC provides:

“When a special finding is inconsistent with the general verdict the former shall control the latter and the court may give judgment accordingly.”

Our first question in considering this assignment of error is whether the answer to interrogatory No. 2 is inconsistent with the general verdict within the meaning of §11420-17 and §11420-18 GC as above quoted.

It has been held that special findings cannot override the general verdict unless they are in irreconcilable conflict with it. Prendergast v. Ginsburg, 119 Oh St 360; Davis v. Turner, 69 Oh St 101; Chris Holl Hardware Co. v. Logan Brick Co., 84 Oh St 455. The conflict between the general verdict and special findings must be clear and irreconcilable to warrant setting aside the general verdict. Ohio Fuel Gas Co. v. Ringler, 126 Oh St 409.

In determining whether irreconcilable conflict exists between the general verdict and special findings, the court does not weigh the evidence but considers only the pleadings, issues and special and general findings. Board of Commissioners of Mercer Co. v. Deitsch, 94 Oh St 1; Fox v. Conway et al., 133 Oh St 273.

The Supreme Court in two comparatively recent cases, has reaffirmed the principles of law enunciated in the earlier cases and has marked clearly and unmistakably the path to be followed when considering special findings of fact of a jury in relation to its general verdict.

In the case of Klever v. Reid Bros Co., 151 Oh St 467, it was held:

“It is the duty of the court to harmonize, if possible, a special finding of a jury with its general verdict.” (Syllabus 1)

And in the case of McNees, appellee v. Cincinnati Street Railway Co., 152 Oh St 269, it was held:

“The answers of a jury to special interrogatories will not authorize a judgment different from that authorized by a general verdict where such answers can be reconciled with the general verdict. (Davis v. Turner, 69 Oh St 101, and Ohio Fuel Gas Co. v. Ringler, 126 Oh St 409, approved and followed.) ” (Syllabus 1)

With these principles in view we proceed to analyze the relationship between the general verdict and the finding of fact in answer to the special interrogatory number two.

It is first to be considered that the general verdict in favor of the plaintiff was a finding for her on the issues raised by the pleadings and the evidence. We have heretofore summarized the allegations of the petition making it unnecessary to detail the same at length here. Suffice it to say, that the specifications of negligence include and emphasize the claim that the exhibition of the revolver and its discharge occurred during a running conversation with the bus operator. The charge of negligence on the part of the operator as employee of defendant, under the doctrine of respondeat superior, in engaging in an unnecessary conversation with a passenger, is clearly raised by specifications of negligence two and four as follows:

“2. In permitting, suffering and allowing a passenger in a public motor vehicle to display, handle and demonstrate a firearm to the bus operator, when defendant knew, or in the exercise of the highest degree of care should have foreseen that in all probability a firearm would be discharged to the injury of other passengers, and the plaintiff in partimfiar.”
“4. Defendant was negligent in continuing to operate said bus at a time when a gun was being exhibited to him for plaintiff avers that said gun thereby was discharged due to a combination of the uneven movement of the bus and the manner in which the passenger was grasping the gun.”

The denial in the answer of defendant created the issues on this subject. The jury answered in part:

“Violation of company rule.”

We find no reference to “company rule” in the pleadings and this sentence standing alone would have little or no meaning when considered in relation to the pleadings alone. On the other hand, it is not in any way inconsistent with the general verdict. However, more light is thrown upon the subject when we consider the second sentence of the answer to the interrogatory, viz:

“Negligence in driver having unnecessary conversation with passenger and paying attention to conversation of passenger.” (Emphasis added.)

This answer certainly points up the issues raised in the petition generally, and specifications two and four particularly, where it is alleged that the bus operator was negligent in “permitting, suffering and allowing a passenger * * * to display, handle and demonstrate a firearm to him” * * * and was negligent “in carrying on a running conversation with a gun-toting passenger, thereby wholly failing and neglecting * *

While it is not within the province of this Court to consider and weigh the evidence in determining whether or not there is irreconcilable conflict between the general verdict and the special findings, we may consider that an issue was raised by the evidence as well as by the pleadings, when the trial court admitted into evidence the company rule and charged on that subject.

Following the principles of law laid down by the supreme court that if it is reasonably possible so to do, special findings of a jury must be harmonized with the general verdict, we have no difficulty in reaching the rather obvious conclusion that there is no irreconcilable conflict, but on the contrary, complete harmony between the general verdict and special findings Numbers one and two. Undoubtedly the special finding No. 2 leaves something to be desired in the way of completeness, because it failed to include all of the elements of fact raised by the pleadings and the issues. The question presented practically called for a summation of all the elements of negligence contained in the issues the jury was called upon to determine. In the main, these issues were decided by their general verdict. It is naturally difficult for a jury of laymen to answer a question with a nice discriminating sense of logic requiring a certain degree of legal acumen when they are obliged to compress a finding of fact within the narrow limits of a question such as was here presented. Apropos of this phase of the subject, the comment in 39 O. Jur., 1089, Sec. 363, may be considered pertinent:

“Juries are usually composed of men who are not learned in the forms of law or exact in their use of language, and all reasonable intendments should be made in order to sustain their verdicts, when the validity of such verdicts is challenged on merely technical grounds.”

As stated in the beginning, the facts of this case are novel, so much so that counsel have looked in vain for a completely similar factual situation but this should not make it too difficult to apply settled principles of law.

For the reasons generally stated, we find no errors prejudicial to the rights of defendant. The judgment of the Common Pleas Court is therefore affirmed. Exceptions noted. Order see journal.

THOMPSON, J, concurs.

SKEEL, PJ, dissents. (See dissenting opinion.)

DISSENTING OPINION

By SKEE'L, PJ.

The facts have been fully stated in the majority opinion and need not here be repeated. The only basis upon which the plaintiff would have a legal right to recover against the defendant must be founded upon her claims that the defendant was negligent in failing to protect her against the unlawful discharging of a firearm by a fellow passenger. The allegations of negligence are:

1. The defendant failed to furnish plaintiff with safe passage on its public conveyance by allowing and permitting a passenger to handle and exhibit a gun in such a manner as to be discharged.

2. In permitting a passenger to display, handle and demonstrate a gun to the operator and should have foreseen in all probability it would be discharged injuring plaintiff.

3. In failing to immediately prevent by word or action the display of a firearm in said bus when the operator should have known and anticipated that revolvers are likely to go off at any time to the hurt of passengers in the vicinity.

4. In negligently carrying on a running conversation with a gun-toting passenger thereby failing and neglecting to consider and have an awareness of the danger to the plaintiff.

5. In negligently continuing to operate said bus at a time when a gun was being exhibited to him (the operator) it being averred that the gun was discharged due to a combination of the uneven movement of the bus and the manner in which the passenger was grasping the gun.

There is no dispute in the evidence but that a passenger (a city policeman) did have in his possession a 32 Colt Automatic and that as he was showing it to the bus operator it was discharged. The element of time as to when the passenger got on the bus and whether or not the gun was exhibited and discharged before the operator could (in the exercise of the highest degree of care consistent with the operation of the trolley bus), do anything to prevent the passenger from continuing in conduct that might result in injury to other passengers, is in considerable dispute.

No consideration is given, nor was the attention of the jury called to an equally important question. The passenger who had the pistol was a police officer experienced in the care and use of firearms. His possession of a firearm was entirely within the law. His personal conduct, other than attempting to display the automatic pistol to the operator, is not drawn into question by the pleadings or the evidence. To what extent, therefore, under the admitted facts there existed a hazard against which the operator should have acted or had a right to act, was not given any consideration, although it presented an important jury question. A judgment for the plaintiff which gave no consideration to this question or which was very weak on the time element, was therefore not supported by sufficient evidence. The amount of the verdict was also excessive. The plaintiff’s evidence shows conclusively that she did not lose a single day from her work because of the alleged injury said to have been occasioned by the accidental discharge of the pistol.

Coming now to the question of the consistency of the general verdict with the answer to the second interrogatory. Before setting forth the interrogatory it should be noted that objection was interposed to the introduction of the company rule which objection should have been sustained by the court and the overruling of such objection constituted prejudicial error.

Proceeding upon the record, however, as it now stands the interrogatories were as follows:

“1. Do you find from the evidence in the case that the coach driver was guilty of any negligence?” To which interrogatory the jury answered, “Yes.”
“2. If your answer to Interrogatory No. 1 is in the affirmative, then answer No. 2.
“State in which respect that negligence consisted.”

To which interrogatory the jury answered:

“Violations of company rule. Negligence in driver having unnecessary conversation with passenger and paying attention to conversation of a passenger.”

From the foregoing answers the jury to be consistent should have found against the plaintiff for the reason that the violation of a rule prohibiting unnecessary conversation with a passenger could not be the proximate cause of the plaintiff’s injuries, sustained because of the failure to prevent a passenger from discharging a firearm. The verdict is, therefore, inconsistent with the answers to the interrogatories and under the provisions of §11420-18 GC, if the general verdict is inconsistent with the special findings, the court is bound by the special findings. The violation of the company rule not being or claimed to be a proximate cause of plaintiff’s injuries the judgment of the court should have been for the defendant.


author: By THE COURT.

text:
    JOHNSON, Plaintiff-Appellant, v. BISHOP, Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 4414.
    Decided October 2, 1950.

      Binns & Tresemer, I. M. Harris, Henry G. Binns, of Counsel, Columbus, for plaintiff-appellant.
    Ballard, Dresbach & Crabbe, Robert W. Newlon, Lloyd E. Bilger, Newlon and Bilger, of Counsel, Columbus, for defendantappellee.
   OPINION

By THE COURT.

This is an appeal on questions of law from a judgment rendered upon the verdict of a jury. The action was one for personal injuries resulting from the collision of two automobiles. We have carefully examined the record, the bill of exceptions, assignment of errors and briefs of counsel and find that none of the error assignments is well taken. The Court’s instruction to the jury contained a correct statement of the legal principles applicable to the issues raised and any omissions to charge cannot be fatal, as the record discloses no request was made by the appellant for an additional charge because of any omission. Carle v. Courtright, 69 Oh Ap 69; Monroeville v. Root, 54 Oh St 523. The judgment is neither contrary to law, nor against the manifest weight of the evidence. The judgment will be affirmed.

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


text:
    KIGER, Plaintiff-Appellant, v. KOEHLER et, Defendants-Appellees.
    Ohio Appeals, Second District, Franklin County.
    No. 4006.
    Decided September 13, 1949.
    George O. Kiger, Columbus, for himself.
    Carl W. Lortz, Columbus, for defendants-appellees.
    Decided September 6, 1950.
   OPINION

By THE COURT.

Submitted on motion by the plaintiff-appellant for an extension of time for the filing of brief and “petition in error.” The notice of appeal is designated as an appeal on law and fact. The action is one for damages and is therefore not appealable as such. The Court on its own motion will dismiss the law and fact appeal and permit the appeal to stand on questions of law only as provided by §12223-22 and §11564 GC. The appellant will be granted leave to file bill of exceptions, assignments of error and brief in accordance with supplement to Rule VII of this Court.

The motion will, therefore, be sustained.

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

ON MOTION TO DISMISS APPEAL

No. 4006.

By THE COURT.

This is a motion to dismiss the appeal for the reason that the appellant has failed to file his bill of exceptions, assignment of errors and brief in compliance with a court order of December 16, 1949.

The motion will be overruled, but the judgment will be affirmed for the reasons assigned, as we think this to be the proper procedure.

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