author: By SKEEL, J:

text:
    BOUSE, Jr., Plaintiff-Appellant, v. BOARD OF REAL ESTATE EXAMINERS, Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23804.
    Decided June 13, 1956.

      Walter I. Krewson, for plaintiff-appellant.
    C. William O’Neill, Atty. Geni., Earl M. Merwin, Asst. Atty. Geni., for defendant-appellee.
   OPINION

By SKEEL, J:

This appeal comes to this Court on questions of law from a judgment of the Common Pleas Court affirming an order of the Ohio Board of Real Estate Examiners revoking the license theretofore granted by them to Hugo F. Bouse, Jr., as a real estate broker.

The faces can be briefly stated. The appellant and his wife were, on and before the time this action was instituted, the owners of approximately twelve acres of land in the township of Mantua, Portage County, Ohio. There is a large house and barn on the property. On December 12, 1952, the appellant and his wife entered into a written agreement to sell two acres of the twelve acre tract, being the part of said tract upon which the house was located at the northwest interesection of Center Road and Pioneer Trail, to Edith F. and William R. Lichota (husband and wife), for $16,000.00. Both Edith F. and William R. Lichota are lawyers but the contract was drawn by lawyers employed by them for that purpose. The purchasers paid $750.00 as a down payment to bind the bargain which amount the sellers admit they received. The contract specifically provides that no real estate broker is involved in the transaction. It also provides that possession shall be given on or before February 1st, 1953, but “if the owner continues to occupy the premises after that date, the owner will pay purchaser rent at rate of $200.00 per month.” It was also provided that the transaction was to be placed in escrow with The Cleveland Trust Company or company of equal standing. It was also provided that all the papers or documents of conveyance and money should be deposited with The Cleveland Trust Company within ninety days from December 12, 1952, with the further provision that the transaction should be completed within the same period. The sale included “carpeting on two floors, drapes, drape hooks, Venetian blinds on first floor, now in garage or on said property * * *.” The seller’s deed was deposited with the escrow agent of The Cleveland Trust Company on January 23, 1953, and on January 10, 1953, the buyers deposited the purchase price, partly in cash and partly by the commitment of the proceeds of a new mortgage to be filed for record when the property was conveyed. The purchasers then took possession of the property (before February 1st), moved in some furniture, and occupied the house as their residence. Some repairs were made by the purchasers, including the removal of some doors which were said to be “rotten” (and which have never been replaced) and the drapes were sent out to be cleaned at a cost of $20.00. These drapes were later sold to Mrs. Lichota’s mother by the purchasers for $25.00 and, therefore, never returned to the property.

At the time the sales agreement was entered into, it was represented by Bouse that there were two mortgages against the property, one to The Cleveland Trust Company, with a balance due of about $14,000.00, and the other to an attorney named John Nelson of Painesville, Ohio. Nelson filed with the escrow agent a waiver of the lien of his mortgage as to the property subject to the sale.

After the deed was deposited with the escrow agent, Bouse left the city and did not return until March 18th or 19th, 1953. In his absence, a title search was made which developed that there was a mortgage in favor of a Nellie Davis securing a debt of $3300.00 recorded against the property in addition to those above described. The escrow agent tried to reach Bouse about this development without success. However, he did reach a Miss Nellie Gottschalt living in Euclid, Ohio, who had negotiated the mortgage and was informed by her that the debt had been paid and the mortgage cancelled. The undisputed facts about this mortgage are that the debt was paid by check of Mrs. Bouse, dated July 17, 1952, made payable to Nellie Gottschalt, endorsed by her as received in payment of the Mantua-Bouse note and mortgage to be returned marked “Paid.” The check bears clearing house stamps of July 25, 1952 and August 2, 1952, and the punch marks show it was paid August 5, 1952. The mortgage, introduced into evidence, shows the satisfaction form was signed by Nellie Davis and dated in the same handwriting as that of the signature on July 18, 1952. This cancellation was recorded March 21, 1953. The evidence as to the foregoing facts about the Nellie Davis mortgage is without dispute and the complainant’s attempt to create doubt about these facts is without legal or factual substance.

As above indicated, the contract to sell the house and lot to Edith and William Lichota was dated December 12, 1952. Ninety days from that date would be March 12, 1953. The Lichotas went into possession of the property on about January 10th and were living there on March 13th, 1953 and continued to do so until early in April, 1953, and when they moved out, they padlocked the doors and have never surrendered the keys.

On March 13, 1953, William Lichota demanded and received from the escrow agent the return of his deposit, claiming a breach of the sales agreement in failing to present or have a clear title (because of the Nellie Davis mortgage) within the ninety day period. He was told by the escrow agent at the time he repossessed his deposit that the escrow agent had been told that the Nellie Davis mortgage had been paid and cancelled. When Hugo F. Bouse, Jr. returned to the city, either the 18th or 19th of March, William R. Lichota contacted him at once and demanded the return of the $750.00 deposit paid to Bouse when the contract was signed because of the alleged breach of the sales agreement as to title. Bouse told him that the Davis mortgage had been paid and he thought cancelled of record. As to the cancellation, he was mistaken. He procured the recording of its cancellation on March 21st or within two days. In the conversation with Lichota about the mortgage, Lichota demanded that Bouse sell him the whole twelve acre tract for $23,500.00 and threatened to have him arrested for unlawfully converting the deposit money unless some deal was made to his satisfaction. The complainant, Edith F. Lichota, on March 20th, 1953, signed the affidavit before the Clerk of the Cleveland Municipal Court, causing the arrest of Hugo F. Bouse, Jr. on a charge of converting to his own use funds ($750.00) belonging to Edith F. Lichota deposited with him in trust. He was put upon trial and found guilty but on appeal to this Court the judgment was reversed and final judgment entered for the defendant for the reason that there was no evidence of intent to defraud. The appellant thereafter refused to return the $750.00 on the advice of counsel. Thereupon, on July 15, 1953, Mrs. Lichota filed a complaint against Hugo F. Bouse, Jr., a licensed real estate broker, with the Ohio Board of Real Estate Examiners, charging him with:

1. Knowingly making misrepresentations in this case that his title was good.

2. Failure within a reasonable time to remit monies in his possession belonging to another.

3. Having threatened legal proceedings to intimidate his prospective purchasers. (This charge is not supported by statutory authority. See §4735.18 R. C., Paragraphs A. E. & W.)

Upon trial the State Board of Real Estate Examiners found:

“After careful consideration of the testimony of the Lichotas v. Hugo Bouse, the Board is of the opinion that the license No. 20682 of Hugo F. Bouse, Jr., should be and is hereby revoked, finding him guilty as charged with violations of Subsections 1, 5, and 23 of §4735.18 R. C. (Sec. 6372-42 GC.)”

An appeal from this order was taken to the Common Pleas Court of Cuyahoga County where, upon trial on February 3, 1956, upon the record made before the Board and additional evidence, this order was aflirmed.

The appellant claims the following errors:

“1. The Court erred in affirming an order of the State Board of Real Estate Examiners revoking the license of Hugo F. Bouse, Jr., Appellant, as a Real Estate Broker.
“2. The order of the State Board of Real Estate Examiners, Appellee, was against the manifest weight of the evidence and that the Court erred in affirming such order.
“3. The judgment of the Court of Common Pleas, affirming the order of the State Board of Real Estate Examiners, is not supported by sufficient evidence and is contrary to law.
“4. The Court erred in refusing to admit evidence offered by the appellant.
“5. Such judgment of the Court is contrary to law.”

Sec. 4735.01 R. C., provides in part as follows:

“(A) ‘Real estate broker’ includes any person, partnership, association, or corporation, foreign or domestic, who for another and for a fee, commission, or other valuable consideration, or who with the intention or in the expectation or upon the promise of receiving or collecting a fee, commission, or other valuable consideration, sells, exchanges, purchases, rents, or leases, or negotiates the sale, exchange, purchase, rental, or leasing of or offers or attempts or agrees to negotiate the sale, exchange, purchase, rental, or leasing of, or lists or offers or attempts or agrees to list, or auctions, or offers or attempts or agrees to auction, any real estate, or the improvements thereon or who buys or offers to buy, sells or offers to sell or otherwise deals in options on real estate or the improvements thereon * * *
“Neither of the terms ‘real estate broker’ or ‘real estate salesman’ includes a person, firm or corporation or the regular salaried employees thereof who performs any of the following acts:
“1. With reference to real estate or any interest therein owned by such person. . .”

Sec. 4735.18 E. C. as effective in 1952 and 1953, provides in part:

“The state board of real estate examiners may, upon its own motion, and shall, upon the verified complaint in writing of any person, investigate the conduct of any licensee and may suspend or revoke or refuse to renew any license at any time where the licensee, in performing or attempting to perform any act as a real estate broker or real estate salesman or in any transaction involving the leasing or sale of an interest in real estate, is guilty of any one of the following:
“(A) Knowingly making any misrepresentation;
<<$ * *
“(E) Failure within a reasonable time to account for or to remit any money coming into his possession which belongs to others;
“(W) Having published or circulated unjustified or unwarranted threats of legal proceedings which tended to or had the effect of harassing competitors or intimidating their customers;”

It was on the authority of paragraphs A. E, and W that the charges filed against the appellant were founded.

In 1955, the Legislature amended the first part of §4735.18 E. C., above quoted, to include after the words “* * * in performing or attempting to perform any act as a real estate broker or real estate salesman,” the following: “or where such licensee in handling his own property, whether held by deed or option or otherwise * * *.”

The amendment can have no effect on the rights of the parties to this appeal. It is argued by the Attorney General that the amendment was only for the purpose of clarifying the then meaning of the statute that a real estate broker is amenable to the provisions of the act in dealing with his own property. This contention is supported by the provisions of the first paragraph of §4735.18 E. C. just quoted. While it is true that a statute restricting and regulating the rights of citizens to engage in a business or profession is in derogation of common law and must be strictly construed, yet the interpretation of such a statute must give due consideration to the purposes to be accomplished and the manner in which such purposes are expressed. Here, the provisions of the statute grant the Ohio Board of Real Estate Examiners the power to suspend or revoke or refuse to reissue a license for any of the reasons named in the statute in performing or attempting to perform any act as a real estate broker, * * * or in any transaction involving the leasing or sale of an interest in real estate * * *. While the amendment makes the meaning of this clause clearer, it did not, in effect, add anything to the power of the Board in seeing to it that a real estate broker conducts himself in the sale of or otherwise dealing with his own property in compliance with the standards required by the licensing act. We must, therefore, overrule the contention of the appellant that the Board did not have jurisdiction of the appellant under the charges preferred by Mrs. Lichota which were drawn upon the authority of the provisions of §4735.18 E. C.

The assignments of error are first that the order of the Ohio Board of Real Estate Examiners was against the weight of the evidence; second that the judgment of the court, affirming the order of the Board, is against the manifest weight of the evidence, and third, both the order and judgment are contrary to law.

The first charge in the complaint filed with the Board is that the licensee violated the following provisions of the law:

“(1) Knowingly making any misrepresentation (in this case that his title was good).”

A careful reading of the record fails to show or disclose a scintilla of evidence to support this claim. No fair-minded person could come to any other conclusion on this issue but that the failure to cancel the Davis mortgage was the result of oversight or unintentional neglect. What possible purpose could there be in withholding the recording of the cancellation of a mortgage after the debt has been paid? Certainly there was a complete failure to show an untrue representation knowingly made. This charge of the complainant must be overruled.

The second charge in the complaint was to the effect that Hugo P. Bouse, Jr. failed within a reasonable time to remit monies in his possession belonging to another. The basis of this charge is that Bouse owed the legal duty to return the down payment of $750.00 to the purchasers because he had breached the sales agreement by not presenting a title clear of the Davis mortgage and that the purchaser, after the time had passed within which performance was to be completed, had a legal right to cancel the sales agreement. The question is, therefore, presented, - - do the facts justify the conclusion that the alleged breach would support an action to cancel the agreement? The record discloses a number of attempts to show that the parties considered the dates or time fixed for the performance of certain obligations of the sales agreement were “of the essence” of the agreement. Such evidence was inadmissible as seeking a conclusion of law from the witness. But the legal question as to whether the date the transaction was to be closed, which was fixed in the contract as ninety days after acceptance, “was of the essence” is in part determinative of the question of the right of the buyers to rescind the agreement and demand the return of the deposit money.

In considering this question, the following undisputed facts are important. The purchasers were both lawyers and their legal representative drew the agreement. The contract, as drawn by them, provided the same date for depositing the deed with the escrow agent and the closing of the transaction, that is, both were required to be done within ninety days from the date of acceptance. While the deed was deposited much earlier, it could have been deposited on March 12th, which would have made it highly improbable that the transaction could be concluded on that day, particularly if the deed had been filed in the closing minutes of the business day. The agreement provided that possession of the property should be surrendered to the buyers by February 1st; that failure to do so would make the seller liable to pay rent at $200.00 per month from that day. The fact is that the buyers took possession about January 10th, 1953. While in possession, they made some physical changes in the property, including disposing of some cellar doors (which were never replaced) which “improvements” they said cost $1200.00. They also disposed of the “drapes” which had been sold to them as a part of the premises in the sales agreement. These facts show that on March 13th, 1953, when the purchasers demanded and received back the money deposited with the escrow agent, as to them the contract was no longer executory. They had received and were enjoying the benefit of the use of the property. They did not tender back the property they then possessed under the agreement. In fact, while in possession, their conduct with respect to the property was such that they could never return it in the condition in which they received it. Under these circumstances and at the point of time when rescission was demanded, it is clear that the time within which the seller was required to present a clear record title was not of the essence of the agreement. Performance had proceeded to such a point that either party, in seeking relief against the other under the agreement, either in rescission or for specific performance, would have to seek relief in equity. The case of Hayes Mfg. Corp. v. McCauley, 140 F. 2nd 187 (C. C. A. Ohio 1944), held that as a general rule, in equity time is not of the essence of a contract unless made so by its express terms or is so treated by the parties or is necessary from the nature of the contract. The phrase “Time is of the essence of a contract” means in equity that performance by one party at a time or within a period specified in the agreement is essential to enable him to require performance by the other party or is so material that failure to perform at the time prescribed will deprive the other party of some part of the benefits of the agreement. It is not to be denied that at law in dealing with a contract no part of which has been performed in an executory agreement, a party can not be compelled to receive late performance. But after part performance, it becomes a question of fact as to whether or not delay will deprive the other party of any part of the full benefit due him under the agreement.

Here the purchasers were enjoying the full benefit of the use of the property. They had deposited only one-half of the purchase price. They were not yet liable for interest on the principal of the mortgage, the proceeds of which would complete the total purchase price. A delay of a few days after notice to the seller of the uncancelled Davis mortgage to afford them the opportunity to clear the title would, under the circumstances, have been no detriment whatever to the purchasers continuing to enjoy the full benefit of their bargain. It is to be doubted whether the escrow agent had the legal right to return the deposit to the buyer without the seller’s consent unless sufficient time had passed from the discovery of the uncancelled Davis mortgage to give him the right to act on his own behalf under the terms of the escrow agreement. Certainly he had no right to recognize the demands of only one party to the escrow agreement without the consent of the other.

Under the circumstances and the undisputed evidence, the buyers were not, on the 13th day of March, 1953, or at any subsequent date until the filing of these charges, entitled to the return of the down payment of $750.00 as a matter of law. We hold that the conduct of Hugo F. Bouse, Jr. in refusing to return the down payment, as shown in the evidence, did not constitute a violation of Paragraph E of §4735.18 R. C., and that an order or judgment finding him guilty of such violation is not supported by any evidence.

The final charge of “having threatened legal proceedings to intimidate his prospective purchaser” is likewise not supported by any credible evidence or based on statutory authority. If there ever was a case in which purchasers attempted to force their will or demands beyond the terms of an agreement to buy land (with the help of law enforcement and administrative agencies), against the seller because of a supposed default of one of the provisions of the agreement, this is the case. The buyers had the seller arrested and charged with converting trust funds. This charge was filed two days after his return to the city. This was the first notice he had that a mortgage not mentioned in the sales agreement appeared on the record uncancelled. Before causing the arrest of the appellant, William Lichota had been told that the mortgage had been paid (which fact was demonstrated to be true). The demand for the return of the money accompanied with a refusal to give up possession of the property, claiming $1200.00 for socalled improvements and $20.00 for cleaning the drapes and padlocking the house when they did move out, the attempt to have a lien declared against the property for the $750.00 in a foreclosure proceeding in Trumbull County, without first reducing the claim to judgment, and finally, the filing of this complaint, show a course of conduct on the part of the purchasers wholly unjustified by the facts. Whatever was done by the appellant or his counsel seemed reasonably justified. The so-called threat was made by counsel for Bouse. It will be remembered that Bouse was discharged as not guilty after appeal in the criminal proceeding. The so-called “threat” was carried out and there is now pending an action for malicious arrest and prosecution. A real estate agent does not have to surrender his right to defend his reputation to retain his license as a real estate broker.

It must also be concluded that the act or threat complained of does not bring the conduct of Bouse or his counsel within the provisions of Paragraph W of §4735.18 R. C. as above quoted. The circumstances here did not involve a competitor or his customer. There is no justifiable grounds for holding Bouse violated Paragraph W of §4735.18 R. C.

Upon a careful consideration of the record and the evidence as it has application to the three charges preferred by Edith Lichota against Hugo F. Bouse, Jr., appellant herein, such appellant is as a matter of law entitled to a judgment discharging him therefrom.

Judgment reversed and final judgment entered for the appellant.

Exceptions noted. Order see journal.

KOVACHY, PJ, HURD, J, concur.


source: Caselaw Access Project

license: Public Domain

text:
    RUTHER, Relator, v. SWEENEY, Sheriff, Respondent.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24019.
    Decided October 3, 1956.
    Michael A. Picciano, Alan Meltzer, for relator.
    Prank T. Cullitan, Pros. Atty., for respondent.
   OPINION

By SKEEL, J:

This motion for bail was filed by the relator in an appeal on questions of law from a judgment entered in the common pleas court denying his right to release from custody in an action in habeas corpus. The relator was arrested on a fugitive warrant about June 5, 1956, at the request of the State of Florida, where he is now wanted on a charge of robbery. The relator’s arrest was occasioned by an executive warrant issued by the Governor of Ohio in an extradition proceeding as a fugitive from justice from the State of Florida, under the authority of Chapter 2963 R. C.

Section 2 of Article IV of the Constitution of the United States, in part, provides:

“* * * A person charged in any state with treason, felony, or other crime who shall flee from justice, and be found in another State, shall, on demand of the executive authority of the State from which he fled be delivered up, to be removed to the State having jurisdiction of the crime. * * *”

Under our Uniform Extradition Act (Chapter 2963 R. C.), the only place providing for bail is where a defendant has been arrested by a peace officer without a warrant upon reasonable information that the accused stands charged in another state with a crime where the penalty or term of imprisonment exceeds one year. (Secs. 2963.12 to 2963.14 R. C.) By reason of the fact that the proceeding by which the relator is now held in custody has gone beyond his arrest at the direction of a magistrate, he is now being held on the Governor’s warrant to await the officer from the demanding state. There is no provision for bail after the relator is held in custody for extradition on the warrant of the Governor of Ohio issued in accordance with and under the authority of Chapter 2963 R. C.

Sec. 2963.09 R. C., provides that after the issuance of the Governor’s warrant the person sought to be extradited shall be taken before a judge of a court of record who shall inform him of the demand for his surrender and the crime charged against him; that he has the right to demand and procure legal counsel and that he may test the legality of his arrest by seeking a writ of habeas corpus within the time prescribed by the court. This the relator has done in this case, and it is from the denial of the right to release as shown by the judgment of the court of common pleas upon the trial on the merits of the habeas corpus proceeding that this appeal on questions of law is now before this court.

The common pleas court, after entering its judgment against the relator and after notice of appeal was filed, denied relator’s application for bail pending appeal and the relator was remanded to jail in the custody of the respondent, the Sheriff of Cuyahoga County.

Sec. 2963.09 R. C., in providing the right to a trial by a proceeding seeking a writ of habeas corpus on the issue of the legality of relator’s arrest, does not provide the procedure to be followed in seeking release from custody. It must be, therefore, that the legislature intended that the procedure provided for in Chapter 2725 R. C., dealing with “Habeas Corpus” and the provisions of the Appellate Code are to be applicable on an appeal from the granting or denial of release in a habeas corpus proceeding. Sec. 2725.18 R. C. provides:

“When the person brought before a judge under §2725.12 R. C., is confined or detained in a legal manner on a charge of having committed a crime or offense which is bailable, the judge may recommit him or let him to bail. If such person is let to bail, the judge shall require him to enter into a recognizance, with sufficient surety, in such sum as the judge finds reasonable, after considering the circumstances of the prisoner and the nature of the offense charged, and conditioned for his appearance at the court where the offense is properly cognizable. The judge forthwith shall certify his proceedings, together with any recognizance, to the proper court. If the person charged fails to give such recognizance, he shall be committed to prison by the judge.”

This section is cited only to show that where the crime with which one, who seeks release through a writ of habeas corpus, is charged is a bailable offense, the judge is empowered at his discretion to admit the relator to bail during the pendency of the habeas corpus proceeding. This was done in the trial court in this case before trial on the merits but upon the denial of release and upon entering judgment against the relator the trial judge refused bail on appeal.

A proceeding in habeas corpus is in essence a judicial proceeding controlled, unless otherwise provided by law, by the rules of civil as distinguished from criminal procedure.

In the case of Henderson v. James, Warden, 52 Oh St 242, 259, the Supreme Court of said:

“A proceeding in habeas corpus is essentially a civil, and not a criminal proceeding. In Ex parte Tom Tong, 108 U. S., 556, Chief Justice Waite used this language on page 559:
“ ‘The writ of habeas corpus is the remedy which the law gives for the enforcement of the civil right of personal liberty. Resort to it sometimes becomes necessary, because of what is done to enforce laws for the punishment of crimes, but the judicial proceeding under it is not to inquire into the criminal act which is complained of, but into the right to liberty notwithstanding the act. Proceedings to enforce civil rights are civil proceedings, and proceedings for the punishment of crimes are criminal proceedings. In the present case the petitioner is held under criminal process. The prosecution against him is a criminal prosecution, but the writ of habeas corpus which he has obtained is not a proceeding in that prosecution. On the contrary, it is a new suit brought by him to enforce a civil right, which he claims, as against those who are holding him in custody, under the criminal process. * * * The proceeding is one instituted by himself for his liberty, not by the government to punish him for his crime. * * *
“ ‘Such a proceeding on his part is, in our opinion, a civil proceeding, notwithstanding his object is, by means of it, to get released from custody under a criminal prosecution.’”

Sec. 2725.26 R. C. provides:

“The proceedings upon a writ of habeas corpus must be recorded by the clerk of the court in which such proceedings were had, and may be reviewed on appeal as in other cases.”

A writ of habeas corpus is a collateral remedy and is independent of the legal proceeding under which the detention is sought to be justified. In re Cattell, 146 Oh St 112, at page 117.

It must follow that, being a collateral remedy that is not a part of the extradition proceeding and which is civil in character, with an appeal provided for as in other cases (§2725.26 R. C.), that when an appeal is taken the procedure in civil cases must be followed. Certainly every judgment of a court of record is reviewable by the Court of Appeals under the authority of Art. 4, Sec. 6, Ohio Constitution and §2725.26 R. C. Prior to the enactment of the Revised Code, §12187 GC (now §2725.26 R C.) provided for a “review on error,” the change being made in the recodification of 1953 to comply with the appellate procedure act of 1936.

Even if the right to appeal were not provided in a proceeding in habeas corpus upon judgment entered in the common pleas court by §2725.26 R. C., such right to appeal to the Court of Appeals on questions of law is provided by Art. 4, Sec. 6, Ohio Constitution, and the procedure for such an appeal is provided in Chapter 2505 R. C.

Sec. 2505.09 R. C., provides:

“No appeal shall operate as a stay of execution, except as provided in §2505.11 and 2505.12 R. C., until a supersedeas bond is executed by the appellant to the adverse party with sufficient surety and in such sum, not less than the amount of the judgment and interest, as is directed by the court making the order which is sought to be superseded or by the court to which the appeal is taken. Such bond shall be conditioned as provided in §2505.14 R. C.”

Secs. 2505.11 and 2505.12 R. C., have no application here. Sec. 2505.14 R. C., provides for the terms of the supersedeas bond, the court having power to prescribe the conditions thereof.

Sec. 2505.17 R. C. provides:

“Execution of a judgment or final order, other than those enumeerated in §§2505.01 to 2505.45, inclusive, R. C., of any judicial tribunal, or the levy or collection of any tax or assessment therein litigated, may be stayed, on such terms as are prescribed by the court in which the appeal is filed, or by a judge thereof.”

In the Henderson case, supra, the court said on page 261:

“It is also claimed that section 6725, does not apply to a judgment of discharge on habeas corpus. That section provides:
“ ‘Execution of a judgment or a final order, other than those enumerated in this chapter, of any judicial tribunal, or the levy of collection of any tax or assessment therein litigated, may be stayed on such terms as may be prescribed by the court in which the petition in error is filed, or by a judge thereof.’
“Because the circuit court stayed the execution of the judgment or final order of discharge without fixing any terms, other than the simple stay, it is claimed that the above section is not applicable to such case, and that there can be no stay, except on such terms as may be prescribed by the court. The answer to this is that the court has ample power to stay the execution of the judgment or final order, and it may grant the stay upon such terms as it sees fit, and if in the opinion of the court no other terms than the stay itself are required, the stay may be so granted. In the case at bar, while no terms were prescribed in the order of stay, in fact the prisoner remained in the custody of the warden until the hearing of the petition in error. The order of stay might well have been upon the terms that the warden safely keep the prisoner until the final hearing.
“We think, therefore, that §6725 R. S. is applicable to a stay in habeas corpus proceedings.”

Sec. 6725 R. S. became §12223-17 GC and is now §2505.17 R. C., the section last quoted, supra.

Aside from the power conferred on the court of appeals by §2505.17 R. C. to stay the execution of a judgment in a habeas corpus proceeding pending appeal upon such terms “as may be prescribed by the court” in the last paragraph of §2501.02 R. C., which section fixes the jurisdiction of the court of appeals as provided by Art. 4, Sec. 6, Ohio Constitution. This section of the Revised Code provides:

“The court on good cause shown may issue writs of supersedeas in any case, and all other writs, not specially provided for or prohibited by statutes, necessary to enforce the administration of justice.”

The court of appeals is by the foregoing sections authorized to stay the judgment of the common pleas court denying the appellant the right to be released from custody and hold that he is legally detained upon whatever terms the court deems proper under the circumstances.

We are not unmindful of the authority to the contrary to be found in the annotation in 63 A. L. R. 1460 and also in 143 A. L. R. 1354. These cases, however, for the most part, are decided against the right to bail because of the absence of statutory authority, and where it was claimed the right to release on bail was to be found in the inherent power of the court in the administration of justice. These cases are not in point. In every case where the right to release the relator on bail in an appeal from a denial of release in a habeas corpus case was based on statutory authority the holdings are in complete accord with our conclusions in this case.

We, therefore, grant the relator’s motion for stay of execution pending appeal of the judgment finding he is legally in the custody of the sheriff on the Governor’s warrant granting extradition to the State of Florida as a fugitive from justice. The relator is granted the privilege of being released from custody until the final determination of this appeal conditioned upon his giving a bond to the State of Ohio and Sheriff of Cuyahoga County in the sum of $2500 with the further condition that he shall not leave the jurisdiction of this court and will abide and perform the order and judgment of this court after hearing of this appeal on the merits and pay costs and loss occasioned by any default on his part and further that he will prosecute this appeal with due dispatch. The bond with proper surety as prescribed by law herein required is to be to the satisfaction of the Clerk of this Court.

KOVACHY, PJ, HURD, J, concur.


author: By THE COURT:

text:
    STATE, Plaintiff-Appellee, v. WEAVER, Defendant-Appellant.
    Ohio Appeals, Second District, Madison County.
    No. 197.
    Decided October 20, 1955.
    William S. Culp, West Jefferson, for plaintiff-appellee.
    Vradelis & McCray, Anthony J. Vradelis, Dayton, for defendant-appellant.
   OPINION

By THE COURT:

Submitted on motion of appellee to dismiss the appeal for failure of appellant to file his brief within the time prescribed by Rule VII of this Court.

The appeal is in a criminal prosecution. The original action was against appellant in Mayor’s Court. From sentence and judgment an appeal was prosecuted to the Court of Common Pleas where the judgment of the Mayor’s Court was affirmed. This appeal is from the judgment of the Common Pleas Court.

We have held on three cases that Rule VII does not apply to appeals in criminal cases: State v. Jarcho, 65 Oh Ap 417; State v. Thompsett et al, 65 Oh Ap 378 and State, ex rel. Merrill v. Moore, 83 Oh Ap 525. We had, however, held that:

“The provisions of §13459-3 GC, as to the time of filing appellant’s briefs in criminal cases are mandatory, and are in no wise governed by the rules of the Courts of Appeals.” 3rd Syl. State v. Jarcho, supra.

But the Supreme Court in the last case of State v. Nickles, 159 Oh St 353, holds that §13459-3 GC, is merely directory.

The briefs of appellant were filed on October 1, 1955.

In the situation thus presented, the motion will be overruled.

The delay in filing appellant’s brief is unfortunate and no cause therefor appears. We will not delay the presentation of this case on its merits. If counsel for appellee desires we will assign the appeal for hearing at Dayton so that it may be adjudicated at any early date.

MILLER, PJ, HORNBECK, J, concur.


author: By HUNSICKER, J:

text:
    MOORE, Plaintiff-Appellee, v. WILLIAMS et, Defendants-Appellants.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23611.
    Decided February 23, 1956.
    Charles Fleck, David Perris, for plaintiff-appellee.
    B. Bill Murad, Michael A. Picciano, for defendants-appellants.
    (STEVENS, PJ, HUNSICKER, J, DOYLE, J, of the Ninth District, sitting by designation in the Eighth District.)
   OPINION

By HUNSICKER, J:

This is an appeal on questions of law and fact.

The case has been tried in this court de novo on the transcript of testimony taken in the Common Pleas Court, along with the exhibits and deposition there submitted. This court adheres to the rulings made in the trial court with respect to the admission and rejection of evidence and exhibits.

Agnes Y. Moore is the owner of property at 3774 E. 143rd Street, Cleveland, Ohio. Buck Williams and his wife, Rosa, are owners of adjoining property on the south, known as 3778 E. 143rd Street. Mrs. Moore is asking this court for a mandatory injunction against Mr. and Mrs. Williams, ordering them to remove a fence which Mr and Mrs. Williams have erected on the lot line separating the two properties. Mrs. Moore says that this fence prevents her from using a driveway over the Williams land, upon which driveway she claims an easement for ingress and egress to the rear of her property. Mr. and Mrs. Williams deny that any easement over this driveway ever was created, or arose, in favor of Mrs. Moore or her predecessors in title.

In the course of the trial in the court below, counsel for Mrs. Moore were asked several times by the trial judge upon what theory they were claiming the easement. The answer given by one of counsel for Mrs. Moore was as follows, at page 95 of the transcript of testimony: “I am claiming that an easement was created through the ownership of two properties, a common driveway between them, and it isn’t a question of mere use.”

Again, when counsel for Mrs. Moore was asked by the trial judge, “Are you claiming your easement by grant or by prescription?” he replied, “I would say by grant. And to show that, I want to prove that the common owner of both properties and the common owner put the first driveway on both lots.”

Later, on page 193 of the transcript, one of counsel for Mrs. Moore said:

“If I didn’t create an easement through severance and the deed made, then I don’t have any. * * * We don’t need to go into the question of adverse possession. My position is, the man owning it severed it, and then, recognizing the circumstances, gave it by deed in ’29. and the fact that it was open and visible, of course, is part of it.”

The question, then, for this court to determine, is whether there was created by a joint owner of these two properties an easement by grant for driveway purposes over the land now owned by Mr. and Mrs. Williams. This is the sole theory upon which this case was presented to the court.

The evidence shows that: Sam and Mary Caputo bought what is called herein 3774 E. 143rd Street on September 3, 1917, and 3778 E. 143rd Street on August 9, 1920; on March 31, 1922, the Caputos sold both parcels to Joel Kalish; on October 16, 1924, Kalish sold both parcels to Rose Rosenfeld; on March 24, 1925, Rose Rosenfeld sold both parcels to Adolph Rachbuch.

Thereafter, parcel 3774 E. 143rd Street was owned as follows: from March 24, 1925, to April 13, 1926, by Adolph Rachbuch; from April 13, 1926, to July 1, 1926, by Rose Rosenfeld; from July 1, 1926, to May 11, 1928, by Adolph Rachbuch; from May 11, 1928, to March 18, 1929, by Rose Rosenfeld (Weisberg); from March 18, 1929, to June 27, 1929, by Sam Rosenfeld; from June 27, 1929, to January 20, 1930, by Eva J. Saeheroff; from January 20, 1930 (title obtained by sheriff’s deed — foreclosure of mortgage), to August 13, 1930, by Equity Savings and Loan Company.

On September 4, 1930, a permit to build a garage in the rear of this parcel was obtained.

From August 13, 1930, to September 17, 1935, by Angelo and Mary Vedda; from September 17, 1935, to November 15, 1946, by Jennie Bionda; from November 15, 1946, to February 15, 1952, by Joseph Rogner; from February 15, 1952, to August 8, 1952, by Sadie Perkins; from August 8, 1952, to present time, by Agnes Y. Moore.

After March, 1925, 3778 E. 143rd Street was owned as follows: from March 24, 1925, to October 31, 1925, by Adolph Rachbuch; from October 31, 1925, to July 1, 1926, by Rose Rosenfeld; foreclosure of mechanic’s lien pending since April 9, 1926; from July 1, 1926 to June 20, 1927, by Adolph Rachbuch; from June 20, 1927, to July 6, 1928, by Mark B. Mead, purchaser at sheriff’s sale; from July 6, 1928, to June 12, 1931, by John M. Errington; from June 12, 1931, to May 24, 1943, by Equity Savings and Loan Company; from May 24, 1943, to present time, by Buck M. Williams and Rosa Williams, the appellants herein.

On June 27, 1929, Sam Rosenfeld and Rose Rosenfeld, husband and wife, gave a quitclaim deed for sublot 136, also known as 3774 E. 143rd Street, to Eva J. Sacheroff. In this deed to sublot 136, the following statement is found:

“Also and together with the right to a driveway in common between the owners and, or, occupants of the premises herein conveyed and the premises immediately adjoining and adjacent thereto, on and along the southerly line thereof. Said driveway being parallel to said southerly line of said premises herein conveyed and seven feet in width, beginning from the westerly side of Kinner Avenue (now known as East L43rd Street) and extending back of equal width to the rear line of said premises herein conveyed 100 feet. Also the privilege of ingress and egress in, on and along said driveway. This easement to be construed as an easement running with the land herein conveyed.”

At this time — June 27, 1929 — neither Sam nor Rose Rosenfeld owned sublot 138, also known as 3778 E. 143rd Street, for the record above set out shows that John M. Errington was the then owner of this sublot 138.

Sam Rosenfeld or Rose Rosenfeld could not grant any right in sublot 138 or transfer any interest therein by the quitclaim deed to Eva J. Sacheroff. There is no other provision contained in any of the deeds, and there is no independent grant of an easement to any part of the premises known as 3778 E. 143rd Street, found in the evidence submitted to this court.

There is likewise no evidence of an implied grant contained in the evidence herein. At the time both properties were ownd by Rose Rosenfeld, there was no garage in the rear of 3774 E. 143rd Street, for permission to build such a garage was not obtained until September 4, 1930, at which time this property was owned by Angelo and Mary Vedda

We believe we have covered in minute detail all that the evidence shows with respect to a possible claim of easement as made by Agnes Y. Moore herein. The evidence fails to establish such right. The case of Trattar v. Rausch, 154 Oh St 286, is no authority for the claim of Mrs. Moore, for the court there said:

“2. An easement in or over the land of another may be acquired only by grant, express or implied, or by prescription.
“3. Implied easements are not favored because they are in derogation of the rule that written instruments speak for themselves.
“4. An implied easement is based upon the theory that whenever one conveys property he included in the conveyance whatever is necessary for its beneficial use and enjoyment and retains whatever is necessary for the use and enjoyment of the land retained.
“5. To be the basis of an implied easement upon the severance of the ownership of an estate a use must be continuous, apparent, permanent and necessary.”

The appellee in this appeal on questions of law and fact has failed to establish her claim. The request for a mandatory injunction is denied. The parties will prepare and submit an appropriate journal entry, assessing the costs, including the cost of the transcript of all the testimony, against the appellee, Agnes Y. Moore.

Decree accordingly.

STEVENS, PJ, DOYLE, J, concur.


author: By BARTLETT, J.

text:
    HANIGOSKY, d. b. a. TASTY BITE SHOPPE, etc., Appellant, v. BOARD OF LIQUOR CONTROL, etc., Appellee.
    Common Pleas Court, Franklin County.
    No. 195923.
    Decided November 13, 1956.
    John T. Feighan, Jr., Cleveland, for appellant.
    C. William O’Neill, Atty. Geni., S. Noel Melvin, Asst. Atty. Geni., for appellee.
   OPINION

By BARTLETT, J.

THE ORDER OF THE BOARD OF LIQUOR CONTROL (AFFIRMING THE ORDER OF THE DIRECTOR OF LIQUOR CONTROL REJECTING THE APPLICATION OF APPELLANT FOR A C-2 PERMIT), IS HEREBY AFFIRMED AND THE APPEAL THEREFROM DISMISSED.

This is an appeal under §119.12 R. C., seeking reversal of an order of the Board of Liquor Control, affirming the action of the Director of the Department of Liquor Control in rejecting appellant’s application for a C-2 (carry-out) permit.

Counsel for appellant objects that there was no showing of a “full and complete hearing,” before the Director. The statutory requirement for a “full and complete hearing” is solely for the benefit of such organizations named in the statute, being the church and school in the instant case. Meyer v. Dunifon, 88 Oh Ap 246.

The next objection of counsel for the appellant, is to the admission of the journal entry, Exhibit C, of the Department of Liquor Control, setting forth fully the objections of the church and school authorities on which the Director of the Department based his rejection of said application. This court is of the opinion that findings in said journal entry are the best evidence that a “full and complete hearing” was afforded the organizations affected thereby, and that their objections were substantial rather than merely formal.

The journal entry affords proof that the Director had ample evidence to warrant a finding that issuing of such permit, would be detrimental to the best interests of the church and school objecting, and therefore, not “advisable.” Any other approach thereto, would open the flood gates to the commercial seekers of such privileges and plant the mischief itself right on the door-steps of the churches and schools affected.

The hearing before the Director of Liquor Control is limited to the “advisability” of the issuance of the permit (§4303.26 R. C.); and this court is not required to determine the issue as to advisability of issuing the permit, but only to find whether the order of the Board, in the exercise of its discretion, upon a consideration of the entire record, “is supported by reliable, probative and substantial evidence and is in accordance with law.” (Sec. 119.12 R. C.).

This court so finds and, therefore, affirms the order of the Board of Liquor Control and dismisses the appeal therefrom. Counsel for appellant may have his exceptions.


author: By PHILLIPS, PJ.

text:
    TENNESSEE GAS TRANSMISSION COMPANY, Plaintiff-Appellant, v. MATTEVI et, Defendants-Appellees.
    Ohio Appeals, Seventh District, Columbiana County.
    No. 728.
    Decided February 9, 1956.

      Harrington, Huxley & Smith, Youngstown, Moore & Moore, Lisbon, for plaintiff-appellant.
    Kitch & Kendall, Salem, for defendants-appellees.
   OPINION

By PHILLIPS, PJ.

By an action filed in the Probate Court of Columbiana County plaintiff, a corporation, sought to appropriate a 692 foot strip of defendants' land situated in Center Township, Columbiana County, comprising .477 acres, and a temporary easement across such land, comprising 1.472 acres, for the construction and maintenance of a gas transmission pipe line.

The trial judge entered judgment upon the verdict of the jury for $5375.00 returned for defendant, and from that judgment plaintiff appealed to this court on questions of law.

The 692 foot strip, which enters defendants’ 25.38 acre tract of land from Ohio State Route 172, cuts a triangular parcel of about seven acres off the easterly portion of such tract, which contained a deposit of coal, a running stream which crosses the highway at the apex of such triangle, two operating gas wells, a power line, and a right of way for highway purposes 892 feet long and between 55 and 70 feet wide.

There is evidence that the laying of plaintiff’s pipe line prevents strip mining defendants’ 25.38 acre tract of land as a unit; that regardless of the quantity of coal underlying the seven acre tract its isolation makes strip mining thereof at a profit impossible; and that stripable coal in such general area sells for twenty-five to thirty cents per ton depending upon the depth, quantity, quality and thickness thereof.

There is evidence of drillings on adjacent lands in the instant case which were in close proximity to several other drillings on defendants’ land, and definitely establish a uniform pattern of existence and thickness of a seam of coal in the area in question.

While the evidence discloses that the remaining 18.38 acres of the original tract likewise can not be strip mined at a profit, yet as we understand it this was not claimed as a basis of damage. We interpret defendants’ claim for damages as based upon the impossibility of strip mining the entire tract as a unit.

Admitting that they had been advised by plaintiff’s agent that the coal was not an issue in the case plaintiff’s witnesses testified to a nominal appraisal of $300.00 and $202.00 respectively.

Defendant Mattevi placed the value of the rights in the land taken at $450.00, and the damage to the residue at $9050.00, or a total of $9500.00 because of the impossibility of strip mining the tract as a unit.

Defendants’ witnesses testified respectively that the damages to the residue of defendants’ land would be $7200.00, $1800.00 of which would be for the value of the coal under the land appropriated, and $5400.00 under the triangular shaped parcel of land; that the value of the rights in the land taken based on the coal underlying the land appropriated was $550.00, and the value of the residue on the triangular tract and the approach thereto on the west would be $7350.00, or a total of $7900.00.

The evidence is conflicting and contradictory as to the amount of coal underlying the 25.38 acre tract, and also under the triangular tract, and varies from a seam thickness of 24 inches situated 18 to 20 feet beneath the surface of the land to a 4 foot seam of coal situated 44 feet below the surface, to a 54 inch seam situated 63 feet below the surface, to 24% inches situated 48 feet below the surface; that the coal contains between 7793 and 10216 BTU and 41% and 31% ash respectively, and 14298 BTU and 4.10% dry ash; and evidence of an indication of the presence of some mineral other than coal in such deposits.

Plaintiff contends that “the probate court erred in admitting testimony in regard to the presence of coal on property not owned by the” defendants, namely that coal was found in an oil well drilled on lands south of their property, and as to the thickness of coal on land on the north thereof, and argues:—

“It is the contention of the appellants that the above testimony was irrelevant and immaterial and that it was highly prejudicial to the interests of the appellant in this action. It is common knowledge and the evidence taken from drill holes in the affected area in this case demonstrates that the coal in this area is not consistent in thickness and therefore the inference which was created for the jury by this testimony was not justified and harmful to the appellant.”

Defendants contend:—

“As pointed out in the summary of the testimony above the trial judge restricted the evidence of coal on lands not owned by appellees to evidence of drillings within 200 feet of appellees land. Two of the drillings on neighbor Bowman’s land were made within 50 feet or so of appellee’s land, i. e. the 7 acres isolated by the pipe line, and a third drilling was within 200 feet. Evidence of some 17 other drillings on Bowman’s property was not introduced.
“It is a matter of common knowledge, and the testimony indicated, that coal is found in veins or seams which follow definite patterns and are found in large areas. Such seams of coal do not respect property lines.”

Defendants contend by brief:—

“It is well settled in Ohio that for the purpose of showing the existence, quantity and quality of coal in certain lands, it is competent to prove that seams of coal have been opened and mined upon other lands in the immediate vicinity and similarly situated, in connection with the opinions of witnesses skilled in the geological formations of the neighborhood that like seams exist on the land in question. Stambaugh v. Smith, 33 Oh St 584 (1873). * * *
“In the analogous case of determining damages for breach of covenant as to development of oil land, it has been held that evidence of the development and existence of oil on contiguous land is properly admitted. Empire Oil and Refining Company v. Hoyt, 112 Fed. (2) 356 (CCA Mich.).”

We find no error prejudicial to plaintiff in the respects charged in the assignment of error under consideration. The objection to testimony of the presence of coal in immediate contiguous lands of landowner Bowman goes to the weight and not the competency of such testimony.

Next plaintiff contends that "‘the probate court erred in not allowing evidence as to the purchase price of the appellee’s property to be admitted on cross-examination of the appellee, Joseph Mattevi,” which plaintiff argues was “extremely vital to the plaintiff, since Mr. Mattevi was allowed to testify that the 25 acre parcel involved in the appropriation action, only one-third of the farm which he had purchased, had a fair market value in 1954 of $30,000, even though the only building located on the 25 acre parcel was a hog pen which Mr. Mattevi valued at $25.00 to $30.00. Mr. Mattevi was also allowed to testify that the market value of his entire farm in 1954 was $75,000.00 to $80,000.00.”

Defendants argue, in which argument we concur, that:—

“It appears to be general rule in the United States and in the State of Ohio, that evidence of the price paid for property which is the subject of appropriation proceedings is admissible, if the following conditions are satisfied:
“(a) The sale must be bona fide.
“(b) The sale must be voluntary, not forced.
“(c) The sale must have occurred relevantly in point of time; and
“(d) The sale must cover substantially the same property which is the subject of the appropriation action.”

We believe that under the pleadings and the evidence the damages to the residue of defendants’ land was limited to the damages to the twenty-five acre tract.

“When, in a proceeding to fix the value of real estate taken for public purposes, evidence is offered on cross-examination of the sale price of other land, its competency depends upon whether there was an actual sale sufficiently near in point of time, whether the other land is similar in character, location, and other circumstances relating to value, and whether the sale was in a fair and open market, and this should be determined by the trial judge in the exercise of a sound discretion; and such determination will not be disturbed by a reviewing court, unless an abuse of discretion is shown.”

We believe that the evidence of the price which defendants paid for their seventy-five acre farm nine years before the appropriation action, which proprty was substantially different than the parcel which plaintiff claims to be the subject of the appropriation action, and during which intervening period coal was discovered and mining commenced, was properly excluded, well within the sound discretion of the trial court.

Next plaintiff claims that “the property owners failed to submit sufficient evidence to sustain the burden of proof resting upon them as to special damages to the residue, to-wit: damages for loss of coal in the ground.”

“It is the province of the jury to pass upon and weigh the evidence, and to pass upon the credibility of the witnesses. * * * Nor does the law countenance any invasion by the court of this province and function of the jury. * * *” 39 O. Jur., Section 138, Page 727.

Plaintiff argues by brief that:—

“Thus it can be seen from the above review of the testimony that the property owners’ witnesses consisted of one stripping operator, who did not have the equipment to do the job, a coal lease dealer, who was highly biased against the appellant, and the property owner himself; none of whom had any information as to the quality or marketability of the coal in question and all of whom were figuring on seven acres of coal. On the other hand, the appellant’s witnesses as to the value of the coal in question were the only stripper who had a lease on the land and who abandoned it and a successful stripper who had the equipment to do the job but said it was physically impossible to do it and make a profit. The appellant contends that there is demonstrated a clear failure on the part of the property owner to carry the burden of proof which rested upon him and that accordingly the judgment in his favor should be reversed.”

Obviously this court hearing an appeal on questions of law can but concur in the statement of defendant by brief that this court “is in no different position than the trial court, and cannot substitute its interpretation of the facts for that of the jury. The only level at which the relative merits of the disputed facts can be considered by the court is on the question of the manifest weight of the evidence.”

We find no error prejudicial to plaintiff as charged in the assigned ground of error under dispute.

Finally plaintiff contends that “the verdict and judgment are contrary to the weight of the evidence as presented by the appellants and the appellees.”

As suggested before the evidence is decidedly conflicting and contradictory on every issue in the case. The jury was in a much better position to determine the weight to be given to the evidence of the various witnesses than this court. The trial judge had the advantage, which this court does not have, of having seen and heard the numerous witnesses and likewise is in better position, than is this court, to determine the weight to be given to the testimony of the witnesses. The trial judge did not, and we cannot disturb the verdict of the jury nor the judgment of the trial court entered thereon on the grounds that the verdict of the jury and judgment of the trial court are against the manifest weight of the evidence.

The judgment of the court of common pleas is affirmed.

NICHOLS, J, concurs in judgment.

GRIFFITH, J, concurs.


author: By McBRIDE, J.:

text:
    DALE et, Plaintiffs, v. BRYANT, Jr. et, Defendants.
    Common Pleas Court, Montgomery County.
    No. 110967.
    Decided March 22, 1957.

      Curtner, Brenton & O’Hara, By J. Paul Brenton, Dayton, for plaintiffs.
    Harold B. LeCrone, Dayton, for defendants.
   OPINION

By McBRIDE, J.:

This case was heard and submitted on an application for a permanent restraining order. The defendants include the owner of the land and the operator of an automobile salvage business which regularly burns vehicles in the open. By agreement, the City Auto Sales, Incorporated, was substituted as defendant for David Barrar.

As appears on Exhibit 1 and from the inspection by the court the area involved includes a “U” shaped plat which, while it has no zoning or restrictions, has been and is used exclusively for residence purposes by several hundred individuals. The only permanent exception is one community grocery store. The north central portion inside the “U” does not appear to be a part of the plat. This portion includes several residences on larger tracts, a narrow open field to the highway and a seven acre tract located in the center of the entire area. It is upon this seven acres that the defendant, John Bryant, commenced his salvage business. The plat itself appears to be rather old. It consists of lots so small that many owners have more than one. The streets are unimproved and some incomplete. There are no side walks, some outside toilets, local water supply and relatively inexpensive housing. However, as indicated, the area is entirely devoted to residential use with the exception of the community store and one or two temporary variations which no longer exist.

The seven acre parcel in the center of this community was used for agricultural purposes until early 1956. At that time used automobiles were moved in for storage. About the middle of October 1956 the defendant, John Bryant, leased the land from City Auto Sales, Incorporated, on a month to month basis for the purpose of carrying on the business of salvaging the metal from automobiles by means of the open burning process. Complaints immediately arose and this suit was filed within approximately sixty days after the defendant commenced his operation.

It appears that, at least in this instance, salvage operations are divided into two functions. The first consists of the storage and stripping of parts for sale with no or only incidental burning. The second consists exclusively of burning, mostly of stripped cars, with only incidental salvaging of a few readily salable parts. The defendant, John Bryant, undertook the latter phase of this salvage program, anticipating a change in his operation as his capital improved. Storage of cars and parts is not a significant item.

The defendant admitted that he burns off about twenty cars a week, usually two or more at the same time. He and the owner of the land agreed to avoid burning on Mondays because of its effect on clothing hung out to dry. This burning off of paint, oil, upholstery, mats, rubber tubing and the like is an essential step for salvaging metal for future industrial use.

When the process is conducted in the open without modern equipment bellows of smoke, flying particles, lacy fragments of burnt paint and offensive and unnatural odors are produced and distributed over the surrounding area at the will of the wind and the whim of atmospheric pressure. The burning witnessed by the court and described by neighbors on the witness stand with details as to soiled wash, smoke, and soot deposits on homes, offensive and noxious odors that lingered after the smoke disappeared clearly establish a continuing nuisance in the heart of a residential community.

The area of the effective nuisance is limited and cannot be compared to that of the huge burning garbage dumps which formerly enveloped portions of this county. However the area of effective nuisance is not confined to the seven acres and it does produce damage to real and personal property surrounding the operation and it does cause substantial physical discomfort to the ordinary person, hundreds of whom have resided in their own homes in this area for a period of time long before the salvage operation commenced.

The operation of a business which salvages used cars and parts in an open lot or other area is a junk yard and is not a nuisance per se. The mere storage of automobiles upon the premises does not invade the rights of adjoining owners. Unsightliness of a junk yard does not violate rights of neighbors any more than an unsightly house or other building. Bohley v. Crofoot, 7 Abs 667. A court of equity will not control another in the lawful use of his premises when he does not violate the rights of others. 30 O. Jur. 344.

The nature and definition of private and public nuisances is so well established by the cases and so thoroughly briefed by counsel that repetition is unnecessary here. The court will therefore confine its discussion to the more significant phases of the subject involved in this case: the burning of automobiles for salvage and the initiation of such an activity in an established residential area.

Nuisance is a relative matter which must be determined by its character and magnitude in connection with all of the surrounding circumstances in the same area. A junk yard in a neighborhood given over to maufacturing enterprises is not a nuisance. However where such a business is operated on a large scale in an exclusively residential neighborhood with incessant noise and dirt it is a nuisance. Weishahn v. Kemper, 32 Oh Ap 313, 167 N. E. 468, motion to certify overruled. An injunction will issue at the suit of residents of long standing in an otherwise quiet residential neighborhood to restrain a motor express company from operating a very noisy business during certain hours of the night. McCambridge v. Mahoning Express Company (App) 17 Abs 632; Schlueter v. Billingheimer, 14 W. L. B. 224. An injunction will not issue to prevent the raising of ducks, in a farm area, of several hundred unavoidably noisy ducks, which could be heard by the plaintiff in her home four hundred feet away. De Albert v. Novak, 3 O. O. 425, 78 Oh Ap 80. An injunction has been allowed on one lot operated as a junk yard, but denied on another two hundred feet away because the latter was almost surrounded by buildings devoted to manufacturing purposes. Grundstein v. Ashland, 25 O. N. P. (N. S.) 493. It is error to reject evidence and special instructions of law concerning the nature of the business and the character of the neighborhood. Eller v. Koehler, 68 Oh St 51.

Where the business of salvaging used automobiles and parts includes the open burning of cars for the purpose of removing paint, enamel, upholstery and rubber parts and creates obnoxious and offensive gases, odors, smoke, and flying foreign substances, which pass over and upon adjoining residences, the rights of the neighboring home owners are invaded. The owner or operator of such a business will be enjoined. State, ex rel., v. Grillot, 71 Abs 329. While this court has recognized the continuing need for proper facilities in this community, nevertheless new activities of this nature may not be initiated in established residential areas. The rule as to a fit and suitable area for such activities, discussed by the Supreme Court in 1903, is equally applicable today.

“Whether it be a case of injury to real property, or a case of personal annoyance or inconvenience, or of interference with the comfortable enjoyment of one’s property, or whether the question be as to the existence of a nuisance, or as to the extent of the alleged injury, or as to whether the defendant’s act caused the injury, and though the inquiry be before a chancellor or a jury, the contiguity of the alleged nuisance to the plaintiff’s property and the nature of the vicinage is always a pertinent circumstance to be considered. The matter of locality may be of much or little weight in arriving at a conclusion, nevertheless the parties have the right to have the controversy heard and determined with all the light that locality may throw upon it. The mutual interests of urban populations require this. For example, if one unnecessarily erects, maintains and operates a noisy, smoky machine shop, or rolling mill, in the midst of a section of a city or town already wholly given up to residences, possibly many of them of elaborate design and great cost, there would be less excuse for the offender in so using his own property, than if he had chosen a place which had been wholly or in part given up to trade and manufactures. All that can be required of men who engage in lawful business is that they shall regard the fitness of locality In the residence sections of a city, business of no kind is desirable or welcome. On the other hand one who becomes a resident of a trading or manufacturing neighborhood, or who remains while in the march of events a residence district gradually becomes a trading or manufacturing neighborhood, should be held bound to submit to ordinary annoyances, discomforts and injuries which are fairly incidental to the reasonable and general conduct of such business in his chosen neighborhood. The true rule would be that any discomfort or injury beyond this would be actionable; anything up to that point would not be actionable.” Eller v. Koehler, 68 Oh St 56.

A situation similar to that of the instant case appears in Bohley v. Crofoot, 7 Abs 667. The plaintiff owned and occupied his residence prior to the acquisition and use by the defendant of an adjoining lot in the village of Medina. The defendant in the operation of his business of wrecking automobiles upon his property caused gases, noises, odors and smoke, which passed upon and over the premises of the plaintiff and injured him in the quiet and peaceable use and enjoyment of his premises. The court of appeals held that such conduct was an invasion of the rights of the plaintiff and granted an injunction. The defendant violated the order and was found guilty of contempt. Williams v. Bohley, 8 Abs 355.

Ohio cases support the right of an adjoining owner to recover damages and, if the injury is irreparable, to obtain equitable relief where his rights are disturbed by smoke, odors and dirt created by a neighbor. Fry v. Queen City Paper Co., 34 O. O. 454, 46 Abs 249, 79 Oh Ap 64, 66 N. E. 2d 252; Kepler v. Industrial Disposal Co., 84 Oh Ap 80, 39 O. O. Ill, 85 N. E. 2d 308; McLung v. North Bend Coal & Coke Co., 9 C. C. 259, 6 C. D. 243; Graham & Wagner, Inc., v. Ridge, 41 Oh Ap 288, 179 N. E. 693; 30 O. Jur. 354. Relief by way of abatement may also be granted under certain circumstances against an established industry located in what is designated an industrial district. Antol et al, v. Dayton Malleable Iron Company (App), 30 Abs 312.

Burning of materials which regularly produce smoke, obnoxious odors, and flying foreign substances may be enjoined where it produces a substantial annoyance, actual physical discomfort, or property damage, even though there may be no actual personal injury or sickness in the medical sense. The plaintiff is not required to establish that he is suffering some ailment or disease, nor is it necessary that he be forced to abandon his home. Eller v. Koehler, 68 Oh St 51; Kepler et al, v. Industrial Disposal Co., 84 Oh Ap 80, 39 O. O. Ill, 85 N. E. 2d, 308; Adams v. Snouffer (App) 55 Abs 14, 87 N. E. (2d) 484; 30 O. Jur. 386. It has been held error to sustain the defendant’s demurrer to the evidence at the close of the plaintiff’s case where the evidence tends to show damages by way of physical discomfort to the plaintiff in the use of his premises. Frey v. The Queen City Paper Co. (2nd Dist.), 79 Oh Ap 64, 34 O. O. 454, 46 Abs 248, 66 N. E. 2d 252.

It is true that the value and nature of residence properties is an element that may be considered however in cases of this nature it is more significant that the area is exclusively residential in character and the owners and occupiers of the property are persons of ordinary sensibilities and are entitled to the use and enjoyment of their respective homes without interference from an unreasonable use.

The defendants argue that a necessity exists in this county for the disposal of an increasing volume of automobiles; that the court should impose regulations which would answer the need and protect the plaintiffs as was done in the case of public garbage and refuse. State v. Grillot, 128 N. E. 2d 552, 930; 71 Abs 164, 329. The power of a court to enjoin or modify common law nuisances which interfere with the rights of others is inherent in a court of general jurisdiction. This equitable power to impose conditions for modification, rather than abatement, of individual nuisances should not be confused with the primary legislative right to regulate the same subject. Courts may modify a common law nuisance where modification is adequate to eliminate the nuisance or where a clear and immediate public necessity requires a compromise between conflicting individual rights.

Under the conditions found in the instant case modification will not eliminate the nuisance without destroying the objective. Further, there is no clear and immediate public. necessity for the disposal of used cars, especially by one whose activity did not exist several months ago. The modification or alternate method of landfill, imposed by the court as a substitute for burning garbage dumps, is impractical where the objective is the salvaging of metal.

It is also argued that there are others burning and salvaging automobiles in the section west of Dayton. The area of effective nuisance in this type of burning is limited. The existence of other similar activities outside this limited area is not a defense and is not material in the instant case.

The court finds that the operation of this new salvage business in the center of an established residential community in the county creates an actionable nuisance of a serious, substantial and permanent nature, incapable of being compensated by damages and that equitable relief by way of an injunction is the only adequate remedy available.

A permanent order is granted at defendants’ costs, restraining the defendants, John Bryant, Jr. and City Auto Sales, Incorporated, from burning any used cars and parts on the premises and from causing smoke, offensive odors, dirt and flying foreign substances to pass over and upon other residences in the community.

An entry will be prepared accordingly.


author: By THE COURT.

text:
    111 BAR, INC., Plaintiff-Appellant, v. BOARD OF LIQUOR CONTROL et, Defendants-Appellees.
    Ohio Appeals, Second District, Franklin County.
    No. 5424.
    Decided March 7, 1956.

      John A. Wiethe, Marvin N. Kolstein, Cincinnati, for plaintiff-appellant.
    C. William O’Neill, Atty. Geni., S. Noel Melvin, Asst. Atty. Geni., Columbus, for defendants-appellees.
    (FESS, J, of the Sixth District, sitting by designation in the Second District.)
   OPINION

By THE COURT.

This is an appeal from a judgment of the Common Pleas Court affirming an order of the Board of Liquor Control which on appeal had affirmed an order of the Department of Liquor Control, suspending a Class D-5 permit of appellant for a period of 30 days on each of two charges against him, the suspensions to run concurrently. Charge No. 1 is that permittee and/or his agent or employee did knowingly and wilfully allow in and upon the permit premises immoral, improper and indecedent conduct in that he or his agent or employee aided and abetted prostitutes soliciting in and upon the permit premises; and, too, he or his agent or employee was convicted in the Municipal Court of Cincinnati for aiding and abetting prostitution in and upon the permit premises.

On the appeal to the Common Pleas Court, Judge Marshall in affirming the order of the Board handed down a written opinion which in conjunction with the record made before the Board we have carefully considered. We find that Judge Marshall gave attention to the errors assigned in this Court and in the affirmance in our judgment, reached the proper conclusion. We could add little, if anything, to this opinion by restating the reasons which support it.

Four errors are assigned: That the Court erred in admitting evidence which it is asserted was hearsay; that it erred in refusing to admit character evidence on behalf of permittee; that it erred in holding that the finding and order of the Board were supported by reliable, probative and substantial evidence, and in inflicting the penalty upon appellant for the act of his servant.

The evidence which it is claimed was hearsay may not be so classified because it consisted of statements made, either by the employee of permittee against whom the charge is directed, or, by one of the women who is claimed to be a prostitute, in the presence of the employee. In this situation the testimony was not hearsay. Rose v. State, 13 O. C. C. 342; Hinz v. State, 15 O. C. N. S. 88.

The evidence which it is claimed the Board should have admitted related to the reputation of the permittee in the operation of his place of business. Ordinarily, this testimony would have been admissible. However, we cannot say that to refuse to admit it was prejudicial to the permittee. It was not claimed that he knew anything about the events upon which the charges were predicated or that he participated in them in any manner whatever. So that, the good reputation which he may have sustained could have been to no advantage one way or the other as related to the charges.

Upon the principal question the validity of the order of the Board, Judge Marshall reached the conclusion which was justified by the record.

We find no error assigned well made. The judgment will be affirmed.

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


text:
    SKINNER, Plaintiff-Appellant, v. FASCIANO, Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23647.
    Decided October 15, 1956.

      Herbert A. Horn, John A. Pasquale, John A. Pasquale, of Counsel, for plaintiff-appellant.
    Leanza, Bernard & Hodous, Robert F. Longano, of Counsel, for defendant-appellee.
   OPINION

By SKEEL, J:

This appeal comes to this Court on questions of law from a judgment of the Common Pleas Court of Cuyahoga County dismissing that part of petitioner’s cause of action seeking reimbursement for funds expended for the support of the petitioner and the child of the parties between the time it is alleged the respondent abandoned his family and the date of the trial of this action. The action is being maintained on the authority of the “Support of Dependent Act” as provided in Chapter 3115 R. C.

Under the definition of §3115.01 R. C. of the Act, it is said:

“(F) ‘Duty of support’ means any duty of support imposed or imposable by law, court order, decree, or judgment, whether interlocutory or final, and whether incidental to a proceeding for divorce, legal separation, separate maintenance, or otherwise.”

The legal right to reimbursement for money expended for support by one who has made such expenditures for the support of one entitled by law to support comes within this definition as “as duty of support imposed by law” when read in the light of the other provisions of the Act.

Sec. 3115.02 R. C., provides:

“The state, or a political subdivision thereof, having furnished support to an obligee, has the same rights under §§3115.01 to 3115.15, inclusive, R. C., as the obligee who received such support has to secure reimbursement of expenditures so made.” (Emphasis added.)

Sec. 3115.10 R. C., provides:

“When a court of this state, acting as a court of a responding state, finds a duty of support, it may order the defendant to furnish support or reimbursement for support and may subject the property of the defendant to the order.
“Such court shall transmit to the court of the initiating state a copy of all orders of support or for reimbursement of support.”

The parties were married at Baton Rouge, Louisiana, December 24, 1941. A child was born of the marriage March 9, 1944. It is charged by the petitioner that the respondent abandoned his family and has failed to furnish support from June, 1949 to the date of the trial of this action. By the petitioner’s amended and supplemental petitions she alleges and there is evidence in the record to support such allegation that she has expended seventy five dollars a month in furnishing support to the minor child of the parties because of the default of the respondent which would total about $5,300.00.

The trial court upon trial sustained the motion of respondent to dismiss that part of petitioner’s claim seeking reimbursement and granted her claim for continuing support ordering the respondent to pay the petitioner $10.00 per week plus poundage for the support of his child.

There is now in full force and effect reciprocal laws on the subject of “Support of Dependents” available to residents of Ohio in the State of Louisiana (§13.1667 R. S.).

The right of the petitioner for reimbursement for funds expended for support under the foregoing provisions of the Ohio Law is one of first impression in this state. The purpose of the Support of Dependents Chapter (§3115 R. C.) is to enforce the civil liability against one who is in default of his obligation of support imposed by law and who has left the jurisdiction of the state where those who are entitled to such support reside, thereby obviating the necessity of subjecting the one charged with default of such support of being arrested and extradited to the jurisdiction of the default under the Criminal Law. This statute is one which the Court must construe liberally. Sec. 3115.02 R. C., supra, shows conclusively that it was the purpose of the legislature to give full protection to a petitioner who has been abandoned without support by one who by law owes the duty of support. This section provides that a political subdivision that has donated support “has the same rights * * * as the obligee who received such support has to secure reimbursement of expenditure so made.”

Sec. 3115.10 R. C., supra, provides for the right of the petitioner to an order by the court against one who owes the duty of support “for reimbursement of support” when the evidence shows the relator was in default and had been in default prior to the date of the action.

These sections so clearly declare the right of the petitioner to reimbursement of money expended by her because of the relator’s default that further discussion seems unnecessary.

For the foregoing reasons, the judgment of the Common Pleas Court, dismissing petitioner’s claim for reimbursement, is reversed and the cause on that subject remanded for further proceedings according to law.

KOVACHY, PJ, HURD, J, concur.


author: By ZOOK, J.

text:
    SMITH, Plaintiff, v. PFEIFFER, Defendant.
    Municipal Court, Akron.
    No. 327789.
    Decided February 20, 1957.
    Holub & Holub, Akron, for plaintiff.
    Seikel, Seikel & Vinopal, Akron, for defendant.
   OPINION

By ZOOK, J.

This cause is before the court on the motion of the General Motors Corporation for an order setting aside the service of summons made on it as the garnishee herein.

The defendant, Walter G. Pfeiffer, is a resident of the city of Akron and was properly served with summons. The General Motors Corporation maintains a place of business in Cuyahoga County designated as Chevrolet Motor Division, and was there served by the sheriff of Cuyahoga County with an order of attachment issued by the clerk of this court and forwarded to him for service. The Garnishee now contends that the Municipal Court of Akron does not have jurisdiction for the service of such an order and notice to a garnishee located in another county.

The statute creating the municipal court contains the following language:

“In any action or proceeding of which a municipal court has jurisdiction the court or any judge thereof has power (B) to issue any necessary order in any proceedings before and after judgment, for attachment of person or property, arrest, aid in execution * * * for which authority is conferred upon the courts of common pleas or a judge thereof, or upon justices of the peace.” Sec. 1901.13 R. C.

The statute further provides:

“In any civil case or proceeding if no special provision is made in §§1901.01 to 1901.38, inclusive, R. C., the practice and procedure shall be the same as in courts of common pleas.” Sec. 1901.21 R. C.

The statute further provides:

“In any civil action or proceeding at law in which * * * a defendant resides or is served within said territory, the court may issue summons * * * all other writs, * * * including executions, necessary or proper for the complete adjudication of the issues and determination of the action, * * * to the sheriff of any other county against one or more of the remaining defendants.” Sec. 1901.23 R. C.

It would appear from the foregoing that the Municipal Court has like power, within its jurisdictional limits, to issue writs to the sheriff of another county as has the Court of Common Pleas.

In Perma Construction Company v. William Ferguson, Opinion No. 3637, Ninth Judicial District, the court by inference held that a Court of Common Pleas has jurisdiction in and of execution proceeding to issue summons for service on garnishees residing in other counties. It would seem to follow that if summons in an aid of execution proceeding may be so served, a garnishment before judgment could equally well be maintained. It seems to be well settled therefore that a Court of Common Pleas has the jurisdiction which is attempted to be exercised in the present case by the Municipal Court of Akron.

By reason of the statute above quoted, this court is of the opinion that the Municipal Court has like jurisdiction with the Court of Common Pleas in the matter here at issue and therefore has the jurisdiction to have an order of attachment and notice to garnishee served on a garnishee in another county by the sheriff of that county. (See also Attorney General’s Opinion No. 2491, April 14, 1953.)

The motion of the garnishee is overruled. Exceptions allowed.


author: By CONN, J.

text:
    GIBSON, a Minor. Plaintiff-Appellant, v. JOHNSTON et, Defendants-Appellees.
    Ohio Appeals, Second District, Montgomery County.
    No. 2379.
    Decided December 10, 1956.
    Emanuel Nadlin, Dayton, for plaintiff-appellant.
    Marshall & Smith, Dayton, By P. Eugene Smith, of Counsel, for defendants-appellees.
    (CONN, J, of the Sixth District, sitting by designation in the Second District.)
   OPINION

By CONN, J.

This is an appeal on questions of law from a judgment of the common pleas court sustaining a demurrer to plaintiff’s petition and entering judgment for the defendants.

Similar action was taken by the trial court in three companion cases, and from the judgments entered therein appeals were taken to this Court on questions of law, said cases being numbered in this Court as numbers 2380, 2381 and 2382.

Appellees have filed motions in this Court in cases Nos. 2380, 2381 and 2382, each consisting of two branches; first, appellees move to dismiss said appeals respectively on the ground that appellant has failed to file briefs pursuant to Rule VII of the Rules of the Courts of Appeals of Ohio; and, second, in the alternative, appellees move the Court to order the consolidation of each of the three cases for purposes of this appeal with Case No. 2379, pending herein.

The transcript of the record and original papers show that appeals were duly filed in each of said cases and that the legal questions embraced therein are identical.

It is the opinion of the Court that on the basis of the records before us and the liberal application of Rule VII, the motion of appellees, as to both branches, should be overruled.

Plaintiff brings this action against defendants to recover damages alleged to have been sustained by her father and proximately caused by the negligence of defendant, Marilyn Anne Johnston, a minor approximately 16 years of age, when, in operating a Chevrolet automobile on U. S. Highway No. 25 on August 14, 1954, at about 8:50 o’clock a. m., she negligently struck plaintiff’s father who, as a pedestrian, was crossing said highway at said time.

The plaintiff’s father was severely and permanently injured; that defendant, Kenneth B. Johnston, is the father of defendant, Marilyn Anne Johnston, and that he had co-signed the driver’s license for his daughter, pursuant to the statute.

Plaintiff sets forth in her petition eight specifications of negligence of said defendant in operating her motor vehicle at the time her father was injured, and further alleges:

“Plaintiff further says that, as a child, she has common law rights in the maintenance of the family relationship against wrongful interference by outsiders; that she has a right to her father’s society, care, companionship and nurture, as well as to her physical, intellectual and moral training; and that the negligent acts of the Defendant have injured and adversely affected her common law rights with her father as hereinbefore described, and because of the said negligent acts she has been substantially deprived of these rights as her detriment and will in the future be permanently deprived of these rights to the extent of the permanent disability suffered by her father and the resultant limitations to him.”

Plaintiff further alleges that she has been damaged in the sum of $20,000.00 and for which she prays judgment.

Similar petitions were filed in each of the companion cases and in each a prayer to recover damages against defendant.

To plaintiff’s petition, and to the petitions in the companion cases, defendant filed general demurrers on the ground that the petitions, respectively, do not state facts which constitute a cause of action. As pointed out above, the trial court sustained the demurrer of defendant in each of the actions and dismissed the petition.

Upon consideration of the allegations of plaintiff’s petition, and like averments in the companion cases, and the oral arguments and briefs of learned counsel, the court has reached the conclusion that the trial court was not in error in sustaining defendants’ demurrers and dismissing said actions. As briefly as possible, we shall indicate the bases of our conclusion.

We first call attention to the suggestions of appellant that the correct legal theory on which this case should be prosecuted is that of “wanton and wilful negligence.” Reference to negligence as being “wanton and wilful” is now regarded as a misnomer. In oral argument, counsel for appellant conceded that additional allegations in plaintiff’s petition, or wanton or wilful misconduct, as the proximate cause of plaintiff’s injury and damage, would have been no more potent, as a basis of plaintiff’s right to recover, than the averments of negligence as now set forth in the several petitions.

Appellant contends that a child, under the common law, has legally protected rights in the maintenance of the family relation against interference by third persons, and the fact that such rights have not been recognized, or have been denied in some instances, is not a valid reason to deny them in the instant cases. This contention assumes that the common law in all instances recognizes that wherever there is a wrong, there is also a remedy, and that the common law is sufficiently, flexible to protect family rights of all members of the family unit in the instant eases. However, a wrong, in legal contemplation, is the violation of a legal right and is redressed through a legal remedy. The maxim, “Ubi Jus, ibi remedium,” liberally translated, declares that a legal wrong is the resultant of the violation of a legal right, for which the law provides a remedy. A wrong not within the scope of the law of a given jurisdiction, either from the standpoint of the common law, or when not prescribed by statute, cannot be regarded as a legal wrong.

The duty of the parent to support, educate and protect the child was given recognition under the common law, but the reciprocal rights of the child in relation to his interest in the society and affection of the parent, were not recognized under the common law as construed and applied in this state, except as may be modified by statute. It follows that a child does not have a right of action for an injury which he has sustained in his relation with his parents, proximately caused by the negligent act of a third person.

It appears that several courts, as cited in appellant’s brief, have held that a child has a cause of action against a third person for maliciously alienating the parent’s affection, on the ground that a child has the right of “consortium” of his parents, or, more broadly stated, “a legally protected interest in the maintenance of the family relationship.” On this premise, it is contended that no valid reason exists for disallowing a child the right to recover for serious and permanent injuries to a parent, caused by the negligence of a third person.

The authorities relied on by appellant are not in accord with the courts of a number of jurisdictions, including Ohio, and, as pointed out in the brief of appellee, in Ohio there is no such right of action, “whether it be for loss of consortium with the injured parent or however else the right be characterized.”

The cases are reviewed and annotated in 162 A. L. R. 824, 12 A. L. R. 2d, 1178, and Supplement thereto. See also 14 Mich. Law Review, 177.

We call attention to the case of Gleitz, III, a minor, v. Gleitz, Sr. et al, 88 Oh Ap 337, where it was held, as stated in the syllabus, as follows:

“In Ohio, an infant, acting through a next friend, cannot maintain an action against third persons for damages for loss of the love, affection, society, guidance or companionship of his or her father, even though the acts of such third persons which caused such loss were willful and malicious.”

We quote from the opinion of Judge Stevens, page 338:

“Concededly no such action was known to the common law, and there is in Ohio no statutory authority for the maintenance of such an action.
“It is urged by the appellant, however, that, upon the principle ‘there shall be no wrong without a remedy therefor,’ plaintiff should have been permitted to present his case to a jury, and that if the law, either statutory or common, affords no remedy to plaintiff, then the courts should create such a remedy.
“Much has been said and written concerning ‘judicial empiricism,’ or the right of courts to legislate. However, the members of this court are of the opinion that the right to create new legal rights and remedies is by the supreme law of our state vested in the legislative bodies, and not in the courts; and we do not feel constrained to encroach upon the prerogatives of the legislative branch of the government.”

The Court is in accord with the pronouncement in the Gleitz case The wrong complained of, not constituted a violation of a legal right under the established policy of this state, it follows that no cause of action is stated in the respective petitions and that the judgments of the trial court should be affirmed, with costs, and each cause remanded to the court of common pleas for execution.

HORNBECK and WISEMAN, JJ, concur.