author: By SKEEL, PJ.:

text:
    GEIGER et, Plaintiffs-Appellants, v. KOBIE, Defendants-Appellees.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22189.
    Decided June 25, 1951.
    Silas J. Blair, Cleveland, for plaintiffs-appellants.
    Kenneth G. Deubel, City Solicitor, Davis & Young, Cleveland, for defendants-appellees. ’ '
    Squire, Sanders & Dempsey, Cleveland, for intervenor. (Ira J. Lucal).
   OPINION

By SKEEL, PJ.:

This appeal comes to this Court on questions of law' from a decree for defendants entered in the Common Pleas Court of Cuyahoga County. The plaintiffs filed a petition as taxpayers seeking to enjoin the Mayor and Director of Public Service from carrying into execution the provisions. of an ordinance which had been passed by initiative petition authorizing the sale of property (exclusive of land and buildings) owned and used by the city of Berea in furnishing electric power to its citizens.

The'/City of Berea has owned and operated an electric light plant for a great many years. The initiated ordinance recites that the system has become antiquated, would require the expenditure of a large sum of money to modernize it, was inadequate to supply the needs of the community because of its rapid growth and that the rates fixed because of the cost of operation, exceeded those charged to the inhabitants for like service of surrounding communities. It further recited that it would be to the best interests of the people of Berea for the city to cease operating a municipally owned electric light plant. The votes of Berea approved the ordinance by a vote of 2427 in favor of the ordinance and 2208 against its passage.

The appellants present many claims of error, but when analyzed, they can be reduced to three in number. First, can an ordinance be initiated which provides for the sale by a municipal corporation, of all the property (except land and buildings) used by it in connection with the furnishing of light and power to the people of such city? Second, do the terms of the initiated ordinance contract for utility service to take the place of that to be discontinued by the sale of such property? Third, do the provisions of the initiated ordinance providing for the sale of the light plant property violate §§3698, 3699 and 3703 GC?

In considering the first question, we are not concerned with the provisions of Sections 5 and 6 of Article 18 of the Constitution of Ohio. These sections provide for the right of a municipal corporation to provide by ordinance for the purchase of or the right to construct a public utility and, if a petition signed by the proper number of electors seeks to subject such ordinance if and when passed by the Council to a referendum, that such referendum shall be had as provided by law. These provisions of the Constitution deal with a subject wholly different than is presented by this appeal. We here have for consideration the question of the validity of an initiated ordinance authorizing the sale of municipally •owned property used in furnishing electrical energy to 'the citizens of a municipal corporation.

The right of a city to enter into a contract to sell property used by it in conducting a public utility and to go out of such utility business is one which requires legislative authority. McQuillin on Municipal Corporations, 3rd Ed., Vol 2, Sec., 10.06.

The question of a municipal corporation determining to dispose of its light plant being a legislative matter, the right to initiate an ordinance authorizing the city to enter Into a contract for such purpose is provided for by Article II., Section 1 (f) of the Constitution and §4227-1 GC.

This section of the Constitution has just been considered' by the Supreme Court in connection with the right of people of a non-charter city to initiate an ordinance to repeal an ordinance passed as an emergency measure, providing for parking meters, the emergency feature of the ordinance preventing the ordinance thus passed from being the subject of a referendum. (Sec. 4227-3 GC.) In State ex rel Sharpe et al v. Hitt, Auditor, 155 Oh St 529.

Paragraphs 1 and 4 of the syllabus provide:

“1. Under Sec. If, Article II of the Constitution cf Ohio, both the initiative and referendum powers are reserved to the people of Ohio municipalities ‘on all questions which such municipalities may nor or hereafter be authorized by law to control by legislative action.’
“4. Where an ordinance relating to parking spaces and the installation and use of parking meters in connection therewith is passed by a municipal council, even though enacted as an emergency measure effective immediately and thereby not subject to the referendum, the electors of the municipality may initiate an ordinance for the repeal of such legislation, and where the initiative petition prepared and formulated for such purpose is in conformity with the provisions of §4227-1 GC, and is duly filed with the city auditor, that official is under the mandatory duty to certify such petition to the board of elections. (State ex rel Smith v. City of Fremont, 116 Oh St 469, overruled.)”

And at page 535 the court says:

“This and other courts have declared that constitutional statutory or charter provisions for municipal initiative or referendum should be liberally construed in favor of the power reserved so as to permit rather than preclude the exercise of such power, and the object clearly sought to be attained should be promoted rather than prevented or obstructed. State ex rel City of Middletown v. City Comm. of City of Middletown, 140 Oh St 348, 44 N. E. (2d) 459; 62 Corpus Juris Secundum 870, Municipal Corporations, Sec. 451 (b).

Our attention has been called to two cases: — Goodman v. Hamilton, 21 Oh Ap 465 and Ohio Power Company v. Davidson, 49 Oh Ap 184. These cases deal with the right to initiate an ordinance authorizing a municipality to purchase or construct a public utility. They are in direct conflict with each other, one holding that such an ordinance can be initiated and the other holding such initiated ordinance invalid. These cases are not in point with regard to an initiated ordinance authorizing the sale of utility property. We conclude that the trial court was correct in holding that the ordinance here under consideration was' properly initiated arid that the plaintiffs’ petition seeking to prevent and enjoin the public officials of Berea from carrying out the provisions of such ordinance was properly denied.

Coming now to the second question, we do not find that the ordinance as initiated contracted for utility service. The City Council of the city of Berea is in no way bound by this initiated ordinance to contract with the successful bidder to furnish electrical energy to the citizens of Berea. The City Council is free to grant a franchise for such service to anyone able to render the service required and needed for the citizens of Berea and an ordinance when passed by the Council authorizing such a contract will of necessity be wholly sepárate and apart from the initiated ordinance with which we are here concerned. The plaintiffs’ second assignment of error is, therefore, not well taken.

We also find that the plaintiffs’ contention that the initiated ordinance passed under the authority of Article II, Section 1 (f) of the Constitution violates the provisions of §§3698, 3699 and 3703 GO is not well taken. We affirm the finding of the trial court on that question for the reasons stated in the opinion of the court. i

For the foregoing reasons, the judgment of the trial court is affirmed. Exc. Order see journal.

HURD, J, THOMPSON, J, concur.


source: Caselaw Access Project

author: By THE COURT.

license: Public Domain

text:
    ROAN et, Plaintiffs-Appellees, v. HALE et, Defendants-Appellants.
    Ohio Appeals, Second District, Franklin County.
    No. 4400.
    Decided June 14, 1950.
    Ray E. Hughes, Columbus, for plaintiffs-appellees.
    Vorys, Sater, Seymour & Pease, Byron E. Ford, of Counsel, Columbus, for defendants-appellants.
   OPINION

By THE COURT.

This is a law and fact appeal' in which the plaintiffs seek to enforce the specific, performance of a contract for the purchase and sale of certain real estate in the City of Columbus, Ohio. The defendants who are and were at the time of entering into the contract owners of the real estate in question, entered into a contract in writing with plaintiffs by the terms of which they agreed to sell and the plaintiffs agreed to purchase the said property for the sum of $10,000.00 conditioned on plaintiffs being able to secure a sufficient loan to carry out the contract. After the contract was signed plaintiffs made application to the Franklin Building & Loan Association for a loan and that company in turn applied to the Veterans Administration in Cincinnati for the proper authorization as a condition precedent to make what is known as a G. I. Loan. An appraisal was made by that department which fixed the valuation at $10,000.00 for the property in its then condition and $10,600.00 if certain repairs were made. By the terms of the contract the defendants were to furnish an abstract showing a good title, but they refused to do so and refused to complete the contract unless the plaintiffs would purchase some of the household goods in the house for the sum of $2000.00 and assume a balance due on roof repairs which had been made after the parties had been negotiating, but before the contract was signed. The defense offered is that the defendants were induced to sign said contract on the plaintiffs’ representation that they could not secure a loan if they were paying more than $10,000.00; that upon this representation the purchase price was reduced from $12,000.00 to $10,000.00 upon the plaintiffs’ agreeing to pay $2000.00 for certain household goods. The defendants agree that these household goods were not worth $2000.00 but that this valuation was placed upon them for the purpose of receiving a total of $12,000.00. The plaintiffs both denied that there was any such agreement although they admitted that there was some conversation concerning the purchase of the household furniture for the amount as claimed by the defendants. The trial court in its opinion properly recognized that although the general rule is that parol evidence is inadmissible to vary the terms of the written contract, that there may be cases where parol evidence is admissible to prove a separate oral agreement constituting a condition precedent to the signing of the written instrument and where such condition precedent is proven and a separate agreement is breached by one of the parties, such breach may be a defense to the enforcement of the written contract. Since the written contract is admitted by all of the parties and the court recognized the proper legal principles applicable, the only remaining question is a factual one as to whether or not the collateral agreement was entered into. This was an affirmative defense and the burden was upon the dafendants to establish it by a preponderance of the evidence. The trial court found that the defendants failed in their proof, and after a careful examination of the entire record we are in accord with the findings of the trial court and the reasons given in its written opinion. Our judgment therefore will be the same as that of the trial court.

HORNBECK and WISEMAN, JJ, concur.


author: By HUNSICKER, J:

text:
    KILKO, Plaintiff-Appellant, v. CLEVELAND (City) et, Defendant-Appellees.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 21763.
    Decided February 19, 1951.
    Thomas Begley, J. T. Feighan, Jr., James Metzenbaum, Cleveland, for plaintiff-appellant. ' .
    Lee C. Howley, Law Director, R. J. Selzer, Edw. J. McDermott, Asst. Law Directors, Cleveland, for defendant-appellees.
    (STEVENS, PJ, HUNSICKER, J, DOYLE, of. 9th District, sitting by designation in the 8th District.)
   OPINION

By HUNSICKER, J:

This is an appeal on questions of law from a judgment of the Court of Common Pleas of Cuyahoga County, Ohio, wherein that court refused to enjoin the enforcement of the zoning ordinance of the City of Cleveland, Ohio in its application to the premises of the appellant, Steve Kilko.

The notice of appeal was filed on questions of law and fact but the action was submitted to this court on questions of law.

The case was tried in the court below upon an agreed statement of facts, which, with the exhibit attached thereto, is about 14 pages in length and consequently will not be set forth in full herein. The pertinent parts of such agreed statement of facts are:

The zoning ordinance of the City of Cleyeland became effective November 5, 1929; the premises in question herein are located in a “B” dwelling house district by the terms of such zoning ordinance; prior to 1929 and up to 1934, the premises were occupied as “non-conforming use” to-wit, a meat market and grocery — by the predecessor in title of the appellant, Steve Kilko, herein called Kilko; in 1934 Kilko’s predecessor in title obtained a restaurant license and began operation of a restaurant on the premises; as soon as the restaurant began operation, a liquor license was obtained from the Department of Liquor Control of the State of Ohio; from ,1934 to and including 1948, Kilko’s predecessor in title obtained yearly from the City of Cleveland a restaurant license for the premises herein and also a liquor license from the State of Ohio; Kilko purchased the premises herein on March 20th, 1948; Kilko, after his purchase of the premises herein, sought and obtained a transfer of the liquor license from the State of Ohio, but neglected to secure a restaurant license from the City of Cleveland; in May of 1948, a complaint was made concerning Kilko’s operation of these premises; after investigation by the proper authority, Kilko was ordered to cease operation of his business because it was in violation of the zoning ordinance of the City of Cleveland and the restaurant license heretofore-issued for the premises to Kilko’s predecessor in title was cancelled; Kilko then made application to the Commissioner of Buildings and Housing for .a “certificate of compliance” to continue the operation- of the liquor business on these premises; the “certificate of compliance” was refused and the case certified to the Board of Zoning Appeals of the City of Cleveland; such Board of Zoning Appeals, after a hearing duly had, refused to grant Kilko the right to operate his liquor business in such premises.

The parties in the agreed statement of facts concede, that the question involved herein is limited as follows:

“* * * did the finding of the Board of Appeals of the City of Cleveland, in sustaining the Commissioner of Buildings and Housing, constitute an abuse of discretion and is the City of Cleveland estopped from enforcing the provision of the zoning ordinance because of the fact that a duly appointed administrative official of the City of Cleveland has continued to issue licenses, to plaintiff’s predecessor in title from the year 1934 to 1938, inclusive, contrary to the provisions of the zoning ordinance?”

Nowhere in such agreed statement is there a disclosure as to a permit to change the grocery and meat market to a restaurant, or that large sums of money were spent to make such change, although counsel for Kilko makes an assertion concerning such permit, and the expenditures made to effect the change.

We have reviewed all the claims of error set forth by counsel for appellant, Kilko, and from our examination of the matters herein, we will discuss only one of such claims.

This claim and the question which arises therefrom is determinative of this appeal. It may be stated in the language used by the parties in the agreed statement of facts as follows:

“* * * is the City of Cleveland estopped from enforcing the provision of the zoning ordinance because of the fact that a duly appointed administrative official of the City of Cleveland has continued to issue licenses to plaintiff’s predecessor in title from the year 1934 to 1948 inclusive, contrary to the provisions of the zoning ordinance?”

3 Pomeroy’s Equity Jurisprudence (Fifth Edition) §805, sets forth some general requisites for the application of equitable estoppel. The author also, in such article, calls attention to the fact that the courts have modified or limited these elements, and hence théy are to be accepted only as guides in the application of equitable estoppel. The author states these rules as follows:

“* * *. 1. There must be conduct — acts, language, or silence —amounting to a representation or a concealment of- material facts. 2. These facts must be known to the party estopped at the time of his said conduct, or at least the circumstances must be such that knowledge of them is necessarily imputed to him. 3. The truth concerning these facts must be unknown to the other party claiming the benefit of the estoppel, at the time when such conduct was done, and at the time when it was acted upon by him. 4. The conduct must be done with the intention or at least with the expectation, that it will be acted upon by the other party, or under such circumstances that it is both natural and probable that it will be so acted upon. There are several familiar species in which it is simply impossible to ascribe any intention or even expectation to the party estopped that his conduct •will be acted upon by the one who afterwards claims the benefit of the estoppel. 5. The conduct must be relied upon by the other party, and, thus relying, he must be led to act upon it. 6. He must in fact act upon it in such a manner as to change his position for the worse; in other words, he must so act that he would suffer a loss if he were compelled to surrender or forego or alter what he has done by reason of the first party being permitted to repudiate his conduct and to assert rights inconsistent with it * * *.”

The Courts in Ohio have applied the principles of equitable estoppel to municipal corporations as well as to individuals.

16 O. Jur. Estoppel, p. 653, Sec. 75 et seq. and authorities therein cited.

State ex rel Simmons v. Wieber, et al, 145 Oh St 121 at p. 127.

Baxter, Trustee v. Village of Manchester, 64 Oh Ap 220.

Judge Washburn, a former Judge of the Eighth District, while sitting in the Ninth District, in the case of Joseph v. City of Akron, 19 Oh Ap 412 at p. 415, said:

“In Ohio, as in most states, the statute of limitations, ''as such, does not run against municipalities as to their title and rights in streets which they hold in trust for the public; such rights are not extinguished by mere non-use or adverse possession due to laches, negligence or nonaction of municipal authorities, but Ohio, in common with many other states, recognizes the doctrine that there are exceptional cases where there has been such conduct on the part of the public authorities relied and acted upon by an adjacent owner, as will estop the public from retaking possession of a portion of a street occupied by such adjacent owner. That is, the circumstances may be such that the private rights of individuals are of more persuasive force in a particular case than the rights of the public, and in such a case it is found to be more just to enforce an equitable estoppel against the municipality rather than permit it to retake possession of such street.” (Emphasis ours.)

A collection and annotation of authorities on the applicability of the doctrine of estoppel against government and governmental agencies is found in 1 A. L. R. (2d) 338, et seq. Prom the reported cases in Ohio and in other states, the doctrine of estoppel in pais, or as it is better known, equitable estoppel, has been applied against municipal corporations in a wide variety of cases, even though not applied with the same strictness as it is in matter arising between private individuals.

The question in the instant case, however, concerns the applicability of the doctrine of estoppel in a matter wherein the police power of the municipality is involved. The authority of a municipality to enact a zoning ordinance is well recognized in this state as a lawful exercise of the police power. We would hence direct our inquiry to the question of whether estoppel can be raised affirmatively in an action to enjoin the enforcement of such zoning ordinances.

“2. The doctrine of estoppel is applicable to municipal corporations where they have the power to act or contract, but is not applicable where the subject-matter of the contract is ultra vires, illegal or malum prohibitum.”

Baxter, Trustee v. Village of Manchester, 64 Oh Ap 220.

The grant of a license to operate a restaurant is not a contract between a municipality and one of its citizens; such license connotes a privilege, not an agreement.

This license was not issued, so far as the agreed statement of facts shows, by the division of the municipality that is charged with supervision of the zoning ordinance. We see no need to discuss the question, that naturally arises, as to whether the issuance of a license by one division of the city government not charged with the supervision of a zoning ordinance, can work an estoppel against the city.

We do not find any reported case in Ohio where a similar factual situation as in the instant case, is discussed or decided. However, several cases in other jurisdictions on the question of estoppel as applied to the enforcement of a zoning ordinance have been called to our attention. These cases are cited under the title of Estoppel, in -31 Corpus Juris Secundum, §142 b, as authority for the following statement:

“The government or its instrumentalities are not estopped by acts of its officers or agents in entering into agreements or arrangements to do what the law does not sanction or permit; and it may not be estopped by acts of its officers or agents in violation of positive law, as by acts in violation of a zoning ordinance or of fire regulations.” (Emphasis ours.)

The comprehensive zoning ordinance of the City of Cleveland, to which reference is made in the agreed statement of facts, makes any violation thereof, after notification, a misdemeanor. (Sec. 211-36 GC).

In the instant case, the City of Cleveland, through its officers, issued a restaurant permit for many years to Kilko’s predecessor in title. The city thus acted, not in a proprietary capacity, nor in the exercise of its contractual powers, but in the discharge of governmental functions through public officers of limited authority.

A municipality may, in some instances, be estopped by the act of its officers if done within the scope and in .the course of their authority or employment, but estoppel does not arise if the act done is in violation of law. There never was, in the instant case, authority to issue a lawful permit to operate a restaurant on the premises here involved. Estoppel, under the circumstances in the instant case, cannot, therefore, prevent the city from enforcing the restrictions of the zoning ordinances.

We have examined all other claimed errors, and find none prejudicial to the substantial rights of the appellant.

• Judgment affirmed. Exc.

STEVENS, PJ, DOYLE, J, concur.


author: By EMMONS, J.

text:
    HENDRIX, Plaintiff, v. HENDRIX, Defendant.
    Common Pleas Court, Summit County.
    No. 177983.
    Decided February 20, 1951.
    J. Noon Marsh, Akron, for plaintiff. . .
   OPINION

By EMMONS, J.

, In this case the defendant is an inmate of the Missouri State Penitentiary, having been sentenced for forgery. The Sheriff of Cole County, State of Missouri, was appointed and authorized by the Sheriff of Summit County, Ohio, to serve summons and a copy of the petition upon the defendant in the penitentiary. This was done and return made according to law, but there was no service by publication.

Query: Is this good service so as to give this Court jurisdiction in the instant case to pronounce a divorce for the plaintiff in an uncontested divorce action?

In 11 Decisions Reprint, 760, a common pleas court concluded that §11297 GC prevailed in divorce cases and that when service may be made by publication, personal service of a copy of the summons and petition may be made out of the state, however, that is a section of the statute that governs service of summons generally, but in divorce actions, which are governed exclusively by statute, there are two sections under the heading of divorce and alimony, to-wit: §§11983 and 11984 GC, which alone are controlling in service of summons in divorce cases.

Sec. 11983 GC provides:

“When the defendant is a resident of this state, the clerk shall issue a summons directed to the sheriff of the county in which he or she resides'or is found.”

By “the county” the legislature did not intend it to be a county of another state, it meant a county within the State of Ohio.

Sec. 11984 GC provides:

“If the defendant is not a resident of this state or his residence is unknown, notice of the pendency of the action must be given by publication as in other cases.”

This case is not parallel to the case of Tucker v. Tucker, reported in 143 Oh St page 658, for the reason that there personal service was irregularly made on the defendant which was not quashed, or sought by him to be quashed, and wherein he filed an answer in which was incorporated an entry of appearance and waiver of - issuance and service of summons and a denial of the material affirmations of the petition. Such facts are not present in this case.

Divorces are social expediencies created by statute and governed solely by them. When a special statute is irreconcilable with a general statute the specific statute prevails. Thus §11984 GC controls in divorce actions over §11297 GC, which is general in nature.

Sec. 11984 GC is a mandatory statute and a strict compliance therewith is necessary.

Since the defendant is out of the State of Ohio and cannot be served personally in Ohio, and is a nonresident, the only other alternative is service by publication and mailing a copy of the summons and petition to the defendant, unless, as in Tucker v. Tucker, after irregular personal service the defendant waived the issuance and service of summons, entered his appearance and filed his answer in the case.

The Court therefore finds that since service in the instant case was not had in conformity to the statutes of the State of Ohio the Court has no jurisdiction to grant the divorce in the instant case until such a time as the service of summons has been rectified. The case is therefore continued for that purpose.


author: By THE COURT:

text:
    BLACKMAN, Admr., Appellant, v. ZELIGS, Appellee.
    Ohio Appeals, First District, Hamilton County.
    No. 7404.
    Decided May 7, 1951.
    Nichols, Wood, Marx & Ginter, Cincinnati, for appellant.
    Brumleve, DeCamp & Wood, Cincinnati, for appellee.
   OPINION

By THE COURT:

Mary Ferber broke her hip bone. The family physician was called and in accordance with his recommendation, she was taken to the Jewish Hospital. Again, on his recommendation, the defendant, an orthepedic surgeon was employed to perform the required operation of setting the bone so that it would knit properly. He recommended what is described as a hip pinning operation. This operation was performed on December 11th, 1946. On December 11th, 1947, Mary Ferber filed this action, charging that the defendant was negligent in the course of the operation and, as a result, she sustained burns from chemicals to her back extending from her shoulder all the way down to a point midway between her liips and knees.

At the close of the evidence, the court sustained the defendant’s motion for an instructed verdict and entered judgment on the verdict rendered under such instruction. It is from that judgment that this appeal was taken.

The appellant urges two reasons for his contention that the issue of negligence should have been submitted to the jury. (1) It is urged that this situation called for the application of the res ipsa loquitur doctrine. Its application is only justified when the instrumentality or instrumentalities that cause the injury are in the exclusive control of the defendant and the circumstances are such as to indicate that injury would not have resulted had due care been exercised. Under such circumstances, the issue of negligence should be submitted to the trier of the facts and it would be justified, but not required, to draw the inference of negligence.

The impossibility of applying that -doctrine in this case is that the defendant did not have exclusive control of the agency — the chemical — that. allegedly caused the injury. The operation was performed in a hospital selected by the plaintiff. The hospital prepared the patient for the operation and furnished all the accessories including the chemicals, etc., required in the operation and its employees applied the chemicals. Under such circumstances the doctrine of res ipsa loquitur is not helpful, because even assuming an inference of negligence could be drawn, such negligence could not be attributed to the defendant. It would .be attributed with greater force to the hospital employees.

(2) It is said that independently of the rule of res ipsa loquitur, there is evidence of negligence. It is said that the defendant admitted that the burns were caused by benzine applied in preparing the patient for operation. This was denied by the defendant, but assuming it to be true that the burns were caused by the benzine, that is not evidence that defendant was negligent. The defendant took no part at all in preparing the patient for the operation. He took no part in the application of benzine and his attention was not attracted by any improper action by the hospital employees in applying the benzine. Negligence, if any, on the part of the hospital employees could not be attributed to the defendant. As soon as his attention was called to the condition of the patient’s back on the following morning, he gave it the proper treatment.

We find that there was a failure of proof of plaintiff’s claim of negligence on the defendant’s part and that, therefore, the court did not err in instructing a verdict for the defendant.

For these reasons, the judgment is affirmed.

HILDEBRANT, PJ, MATTHEWS, J, & ROSS, J, concur.


text:
    HOLLMAN, Plaintiff-Appellant, v. SMITH, Defendant-Appellee, McCLINTON, Defendant-Appellant, BURDELL, etc., Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22105.
    Decided May 14, 1951.
    Beach & Warner, Cleveland, for plaintiff-appellant (Ida Hollman).
    C. K. Gillespie, Cleveland, for defendant-appellee (Alex Smith).
    Beach & Warner, Cleveland, for defendant-appellant (C. McClinton).
    Mark L. McCave, Cleveland, for defendant-appellee (D. Bur-dell).
    (DOYLE, J, of the 9th District sitting by designation in 8th District.)
   OPINION

By SKEEL, PJ.:

.This appeal comes to this court on questions of law and fact. The plaintiff’s second amended petition alleges that the defendants own and possess as tenants in common, a house and lot known as 6615 Outhwaite Avenue in the City of Cleveland. The plaintiff alleges that she acquired the complete title, ownership and right of possession to said property by virtue of a warranty deed from Francis Burich, on July 31,1944, which deed was recorded October 13, 1944. Thereafter and prior to October 15, 1948, Mattie Smith, plaintiff’s grandmother, died intestate leaving defendant, Alex Smith, her surviving spous.e and defendant Catherine McClinton (Mattie Smith’s daughter and plaintiff’s mother) and defendant Deborah Burdell, a minor (Mattie Smith’s daughter) her sole heirs at law and next of kin. That after the death of Mattie Smith, the defendant Alex Smith, brought an action against plaintiff and her former husband, Harry Holhnan, seeking a mandatory injunction .to require said defendants to acknowledge a deed which had been recorded May 16, 1947 as required by law. (This deed although the petition contains no allegation describing it, was from the plaintiff (her then husband, Harry Hollman, releasing dower) deeding a one-half interest in the Outhwaite property to Mattie Smith and Alex Smith, which deed was signed by the grantors but not acknowledged before the 16th day of May, 1947.) This action was dismissed November 4, 1948. The . said defendant, Alex Smith on the 5th day of November' instituted probate proceedings to. administer the estate of Mattie Smith, the administration being concluded and final account approved by the probate court April 26, 1948. That as a part of the probate proceedings of said estate, a land sale proceeding was instituted to sell 3/4 interest of said property which was alleged to be the deceased’s interest therein and the defendant Alex Smith, as surviving spouse, purchased said interest for $2,060.00, (the appraised value) paid partly in cash and partly in assuming the unpaid balance of a purchase mortgage due to Francis Burick. The said sale was approved by the probate court April 12, 1949. The petition then alleges that the plaintiff seeks a declaratory judgment as to the rights of the parties in said property.

The second aause of action asks for partition of the property. The third cause of action alleges that defendant, Alex Smith, is collecting the rents and asks an accounting therefor and that he be enjoined from attempting to evict the plaintiff.

The fourth cause of action seeks to impress a trust against the holder of the legal title of said property for the benefit of the plaintiff because she has received no consideration for her interest therein.

The answer of the defendant, Alex Smith, denies that he acquired his complete title as alleged by the plaintiff in her first cause of action. He admits that he was the husband of Mattie Smith who died July 5, 1947; admits he instituted a mandatory injunction suit as alleged and that said suit was dismissed; admits he was the administrator of his wife’s estate and that the final account was approved by the probate court; admits that a land sale proceeding was had in probate court and that he as the surviving spouse purchased the interest of his deceased wife in said property and has collected rents and has attempted to eject the plaintiff. This defendant denies all of the other claims of plaintiff. He then alleges that on February 11, 1947, the plaintiff and her husband deeded a one-half interest in said property to Mattie Smith and on May 16, 1947 they deeded a one-half interest therein to Mattie Smith and this defendant and that on April 7, 1949 in the land sale proceeding the 3/4 interest of Mattie Smith, deceased, was in said proceeding deeded to this defendant and that all of said deeds were given for a valuable consideration.

The reply of the plaintiff put in issue the affirmative allegations of the answer and a guardian was appointed for the minor defendant and an answer filed as provided by law.

The evidence is not in dispute as to how the plaintiff first acquired title to the property. On July 31, 1944, she purchased said property from Francis Burich, the consideration being $3,000.00, $500.00 in cash and balance secured by mortgage payable in monthly installments of $30.00.

The evidence on the other issues is in conflict but there seems to be no real controversy over the first deed to Mattie Smith, now deceased, dated January 30, 1947 and recorded February 11, 1947. The plaintiff testified that she expected to be paid for such one-half interest on the basis of what she paid for the property. However, her husband testified that they wanted his wife’s grandmother to have an interest in the property and that the deed was one of gift. It must be noted that no claim was filed against the estate of Mattie Smith for any claimed purchase price. We must conclude that such deed was a deed of gift and that the plaintiff can not now make any claim either legal or equitable to this one-half interest.

The real controversy has to do with the legal effect of the deed executed after the contract of May 12, 1947 and recorded May 16,1947 to Mattie Smith and Alex Smith, her husband, for a one-half interest in said property, signed by Ida Hollman and release of dower by her then husband, Henry Hollman, the deed showing that it was acknowledged October 29, 1948 and re-reeprded November 12,1948, after the death of Mattie Smith.

The plaintiff first went to live in the property with her family as a tenant in 1939. Her family then consisted of her grandmother, Mattie Smith, her mother, Catherine McClinton, and her mother’s sister, a minor, Deborah Bur dell. She was married to Harry Hol.lman in 1940 who then came to live in the property. There were tenants in the building other than the plaintiff’s family. The plaintiff’s husband was called into the service and while in the service the plaintiff decided to buy the house and he made a special trip home to carry out the deal. The property was deeded to the plaintiff July 31, 1944 and deed recorded October 13, 1944, $500.00' being paid down and a mortgage of $2,500.00 given back to the grantor payable at $30.00 a month. The plaintiff, with her allotment and other income from tenants, paid about $60.00 per month so that the mortgage obligation was reduced much more rapidly than was contemplated. After Harry Hollinan returned from the service a one-half interest in the property was deeded to Mattie Smith, January 28, 1947, the deed having been recorded February 13, 1947. Prior to this Mattie Smith was married to Alex Smith in October 1946, and he came to live in the property. The plaintiff and her husband began to have domestic trouble and a divorce was filed by plaintiff in July, 1947. Before this, in May, 1947, the plaintiff and her husband went to Mr. Ben Ruby because, as she testified, he, plaintiff’s husband, wanted his part out of the house. Mr. Ruby drew a contract, whereby the plaintiff and her husband, for the consideration of $160.00 and the assumption of the obligation to pay the balance of $900.00 due on the mortgage plaintiff and her husband then owed, they agreed to sell and deed a one-half interest in said property to Mattie Smith. The contract was dated May 12, 1947. It provided that $10.00 was paid upon the execution of the contract, the balance of $150.00 to be paid upon delivery of the deed. The plaintiff and her husband agreed that $10.00 was paid the first time they went to Mr. Ruby’s office and that the balance was paid at a later time. A deed was made out to carry into effect the terms of the agreement. The plaintiff claims that the deed and the contract were drawn at the same time. This is denied by the defendant and Mr. Ruby who drew both instruments and who testified the deed was drawn a few days after the contract. The deed is in evidence. The day of its execution was left blank followed by the words ‘May-1947.’ It was signed by both plaintiff and her husband-and witnessed by Ruby and his stenographer. It was entered for record on May 16th. Mr. Ruby testified that he refused to take the acknowledgment, because Harry Hollman was not there when he delivered the deed to Mrs. Hollman and she agreed to have it acknowledged by a notary public in the neighborhood when signed by her husband. A notation to that effect was found on the deed in Ruby’s handwriting. The deed was recorded without the acknowledgment. These facts point strangely to the fact that plaintiff and her husband are incorrect in their recollection of what was done on these occasions. They both testified that Ruby refused to acknowledge the deed because Alex Smith, ofie of the grantees, was not there, the grantees in the deed being both Mattie and Alex Smith. Such an explanation is, of course, untrue, and casts great doubt as to the accuracy of.the Hollman story as to what took place in Mr. Ruby’s office. One thing is established beyond question which we again repeat — that the plaintiff and her husband both signed the contract and the deed and that Mattie Smith paid Harry Hollman $10.00 the day the contract was signed — May 12, 1947, and the balance of $150.00 was paid a few days later, and the grantees, assumed by the contract, to pay off the balance due on mortgage then in the amount of $900.00. This was the consideration recited in the contract for the remaining Hz interest in the property.

The plaintiff filed for divorce from Harry Hollman in July of 1947 and decree was entered in October or November.

Mattie Smith died July 5, 1947. Probate proceedings were filed to administer her estate. A land sale was necessary to provide the money to pay the debts of the estate. It was alleged in this proceeding that Mattie Smith was the owner of a 3,//4 interest in said property. The defendant, Alex Smith, surviving spouse, elected to purchase the interest of Mattie Smith at its appraised value. The amount paid into the estate either by way of credits or money was $2,090.54, the commissioner’s deed to Alex Smith being dated April 6, 1949.

After the probate proceeding had been in progress, it was discovered that the deed for the last Hz interest of the plaintiff which had been recorded May 16, 1947, had not been acknowledged. The defendant, Alex Smith, then filed an action against the plaintiff and her husband seeking a mandatory injunction directing them to acknowledge the said deed. The petition was filed October 19, 1948. On the same day, an affidavit for constructive service was filed stating that Harry Hollman resided at 1021 Field Street, Hammond, Indiana. The return of service by publication was filed November 8, 1948. The precipe for service requested that a copy of the petition be mailed to Harry Hollman at 1021 Field Street, Hammond, Indiana, and was filed with the precipe for service on Ida Hollman.

The plaintiff after she rceeived the summons went to the office of Sam Griff, attorney at law. She paid him $20.00 for his services, the receipt being dated October 27, 1948. Mr.Griff testified .that both the plaintiff and Harry Hollman came to his office and when told about the suit and also, that théy had both signed the deed, he advised them to acknowledge the deed which they did. They had the deed with them on this occasion or brought it a day or two later because Mr. Griff took their acknowledgement on October 29, 1948, two days after the receipt for the $20.00 fee. The dped as thus acknowledged was delivered to Alex Smith’s -lawyer and was recorded November 1st. On November 4, 1948, the case seeking a mandatory injunction directing Ida Hollman and Harry Hollman to acknowledge the execution of the deed last referred to was dismissed by Alex Smith.

This plaintiff, Ida Hollman, and her former husband deny that the lawsuit of Alex Smith was settled as claimed, Harry Hollman testifying that he was not in Cleveland on that day and this plaintiff claiming that Mr. Griff was employed to defend the suit and not acknowledge the deed. Harry Hollman does admit that he came to Cleveland after receiving a court paper in the mail, but says that his visit was about answer day, which was November 20,1948, as to summons service on Ida Hollman and December 18, 1948, a-s to Harry Hollman, served by publication. !He places his visit on the 18th of November, because as he testified, he was notified the case would then be for trial. He could have known nothing about the answer day in his co-defendant’s summons and there was no other communication asking him to come to' Cleveland. The probability, therefore, is that he came to Cleveland after receiving the court paper around the 28th of October, 1948.

The plaintiff and her former husband’s denial of acknowledging the deed is, therefore, not supported by credible evidence, the court concluding that giving due consideration to all the evidence on this question, it is far more probable that the plaintiff and Harry Hollman did acknowledge the execution of the deed conveying the plaintiff’s remaining one-half interest in the property to Alex Smith and Mattie Smith, then deceased, but who was living when the deed was executed by both grantors.

A 'contract to sell real estate followed by a defectively executed deed, the full consideration agreed upon having been paid at the time of the execution of the deed, it being established by the evidence that it was intended as a conveyance, such deed passes an equitable right in the property 'to the grantees.

13 O. Jur. page 843, parag. 28; Barr v. Hatch, 3 O. 527; Williams v. Sprigg, 6 Oh St 585.

This being true, Mattie Smith during her lifetime became the owner in equity of the interest in the property set forth and described in the deed now under consideration. All that took place after her death was that the grantors acknowledged the attestation and the deed re-recorded. The defect was therefore, cured and the plaintiff is now estopped from asserting any claim based upon her own failure to carry out in full the terms of her contract to sell such property and is further estopped from challenging the title in her grantees or their heirs or assigns. A decree will, therefore, be entered for the defendants as in Common Pleas Court. Order see journal.

HURD, J, DOYLE, J, concur.


text:
    BYERS, Estate of, In re.
    Ohio Appeals, Second District, Franklin County.
    No. 4531.
    Decided December 4, 1950.
    Bowers, Stafford & Bowers, New Philadelphia, for Esther M. Wolf, appellant.
    John C. Fergus, Columbus, for appellee, Carl F. Fergus, Admr., etc.
   OPINION

By THE COURT.

Submitted on motion by the plaintiff-appellee seeking an order dismissing the appeal on law and fact for the reason that it is not a case in chancery and is therefore not so appeal-able. The record discloses that the action was brought pursuant to the provisions of §10506-67 GC for the purpose of discovering concealed assets.

This is not a chancery case and the motion will be sustained. The case will be retained, however, for determination on appeal on questions of law only. The appellant will be granted the time provided for by Supplement to Rule VII of this Court in which to perfect the said appeal. Motion for extension of time is sustained in accordance with this opinion.

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

ON LAW APPEAL FROM A JUDGMENT

No. 4531.

Decided January 25, 1951.

By THE COURT.

This is a law appeal from a judgment of the Probate Court finding the appellant, Esther M. Wolf, guilty of concealing assets belonging to the Estate of Sylvia J. Byers, deceased.

Briefly stated the record reveals that the said Sylvia J. Byers was critically ill with no available funds for hospitalization or medical attention, but that she did own a certain piece of real estate. In order to obtain the necessary money she decided several weeks before her decease to sell the property, granting to her daughter, Esther M. Wolf, appellant, full power of attorney to sell and “deposit my money in her name.” The property was accordingly sold but the proceeds were deposited in a financial institution in a joint or survivorship account in the name of Sylvia J. Byers or Esther M. Wolf. The appellant is now in possession of the balance of this money after the payment of all necessary expenses. She testified that the account was opened in accordance with the express wishes of her mother, which, if true, would constitute a gift inter vivos.

The record reveals further that several months prior to the granting of the power of attorney the decedent made a will by which she bequeathed to her husband that part of her estate to which he would be entitled under the laws of descent and distribution and the residue to her three children. The record does not reveal that the power of attorney was ever revoked. The appellant was not corroborated in her statement that the money was deposited in accordance with her mother’s request. The appellant is contending that the judgment of the Court is against the manifest weight of the evidence. In giving consideration to all of the evidence presented we cannot concur in this conclusion. We think the law is well stated in Caple, Admr., v. Crane, 31 Oh Ap 6, Judge Williams saying on page 7:

“We think the rule is that, where the donor is dead, one one who seeks to establish title to-personal property by gift inter vivos from the deceased donor must support his claim' by clear and convincing evidence. Flanders v. Blandy, 45 Oh St, 108, 12 N. E., 321; Van Pelt, Exr., v. King, 22 Oh Ap 295, 143 N. E. 163.”

The rule of law here pronounced is fully supported in 20 O. Jur. 66.

The trial court found that the evidence was not sufficient to establish an intent to make á gift, saying in his opinion:

“Her testimony was unsupported by any other testimony. The Court, of course must consider the interest of Mrs. Wolf in her testimony. Her testimony was a self-serving declaration * * one of the most significant things * * * is the fact that the dealings of Mrs. Wolf in the proceeds of the property were entirely contrary to the testamentary plan of her mother as shown by her will. It is not only contrary to the testamentary plan, as shown by her mother, but contrary to the provisions of the power of attorney.”

Since the trial court is the sole judge of the credibility of the witnesses we cannot say that it erred in failing to give full credence to her testimony.

It is further claimed that the Court abused its discretion by denying the appellant the right to be heard or present briefs at the conclusion of the trial, but the record does not disclose that such a request was made by counsel. It merely shows that at the conclusion of the case the Court said:

“I am ready to decide this matter now. Ordinarily, if there is any doubt in the mind of the Court, the Court will invite counsel to give their opinions; and if there are any legal questions, the Court invites counsel to submit briefs in support of their respective contentions. In this case, there is no matter of fact about which the Court is in doubt; no legal questions in which the Court has any doubt, and therefore the Court will proceed now to decide this matter.”

We find no prejudicial error in this assignment. Finding no error in the record, the judgment will be affirmed.

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


author: By SKEEL, PJ.

text:
    KOVAR, Plaintiff-Appellant, v. CLEVELAND (City), Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22025.
    Decided February 26, 1951.
    H. J. Dworkin, Cleveland, for plaintiff-appellant.
    Lee C. Howley, Director of Law, Jas. M. McSweeney, Asst. Director of Law, Cleveland, for defendant-appellee.
   OPINION

By SKEEL, PJ.

This appeal comes to this court on questions of law from a judgment entered on behalf of the defendant. The plaintiffs’ petition prays for an order restraining the defendants from disposing of dogs, taken and placed in the pound of the City Dog Warden under the provisions of Sec. 2911-1 and 2911-3 of the Municipal Code of Cleveland, by giving or selling them to hospitals or laboratories for experimental and research purposes.

The trial court sustained the defendant’s demurrer to the plaintiffs’ petition and the plaintiffs not desiring to plead further entered final judgment for the defendant.

The plaintiffs’ petition, after general allegations setting forth the corporate authority of the City of Cleveland and the qualifications of the Mayor and the Safety Director, alleges that this action is brought by the plaintiffs as taxpayers after a request in writing upon the Director of Law, and his refusal to bring suit to enjoin the City of Cleveland and its authorized officers from collecting, harboring, selling and giving away dogs to hospitals, clinics and laboratories for experimental purposes.

The plaintiffs then set forth the provisions of Sec. 2911-3 of the Municipal Code of Cleveland dealing with the disposition of unclaimed dogs placed in the pound,' because they were found unmuzzled as provided by Sec. 2911-1 of the Municipal Code of Cleveland. It is then alleged that the Director of Public Safety issued an order to the Dog Warden directing that unredeemed stray dogs be sold or given to hospitals and laboratories for research or experimental purposes; that until they are so disposed of, tax funds are expended in collecting such dogs from the streets of the City, and in housing them and maintaining them until disposed of. That since July, 1947, over 2000 dogs have been thus made available to hospitals and laboratories for experimental purposes.

The petition further alleges that the unauthorized and illegal operation of said business of procuring dogs for public institutions is an expense to the taxpayers and constitutes a waste and misapplication of public funds. That §3633 GC, authorizing City Council to provide by Ordinance to collect and dispose of stray dogs, running at large, was passed for the protection of the public, and was not intended to authorize and does not authorize the City to engage in large scale commercialization of the collection and sale of such dogs to hospitals and other institutions for purposes of vivisection

The petition further alleges that Section 2911-3 of the Municipal Code of Cleveland does not empower the Dog Warden to deliver unredeemed impounded stray dogs to hospitals or laboratories for experimental purposes and that any attempt to do so is without authority and constitutes a gross abuse of discretion by such public officer. The petition further alleges that the plaintiffs have no adequate remedy at law and prays that the City, the Mayor and the Safety Director be enjoined from collecting, procuring, maintaining, selling and/or giving away dogs to hospitals and laboratories.

To this petition, the defendants filed a demurrer alleging that it did not state a cause of action, which demurrer was sustained by the trial court. The plaintiffs then indicated to the court that they did not desire to plead further, whereupon the court dismissed the petition and entered judgment against the plaintiffs for costs.

Plaintiffs claim the following errors:-

1. In sustaining the defendant’s demurrer.

2. In dismissing plaintiffs’ petition and entering final judgment in favor of the defendants.

To determine whether or not a cause of action is stated we will first examine the statutes of Ohio dealing with the subject.

Sec. 5652-9 GC provides:

“Dogs not wearing valid registration tags which have been seized by the county dog warden, and impounded as herein-before provided, shall be kept, housed and fed for three days, at the expiration of which time, unless previously redeemed by the owners thereof, such animals shall either be sold or humanely destroyed; provided, however, that no dogs so sold shall be discharged from said 'pound until such animal shall have been registered and furnished with a valid registration tag as hereinbefore provided. A record of all dogs impounded, the disposition of the same, the owner’s name and address, where known, and a statement of costs assessed against such dogs, as hereinafter provided, shall be kept by the pound keeper and a transcript thereof by him furnished to the county treasurer quarterly.”

This section is found in Part Second, Title I, dealing with the Taxation and is a part of Chapter 12 of such Title, headed “Levying Taxes.” The sections just preceding §5652-9 GC deals with the registering of dog kennels, and also the registering of dogs, providing the manner in which registrations shall be accomplished and the fees to be charged. These sections also provide that each dog shall wear a metal tag evidencing that it has been registered. Failure' to wear such tag is prima facie evidence of lack of registration and if so found, the dog shall be subject to impounding, sale, or destruction as provided by §5652-9 GC.

The City of Cleveland is a Home Rule city under Section 3 of Article XVIII of the Constitution of Ohio. It is therefore empowered to enact all local police, sanitary and other similar regulations as are not in conflict with the general law.

Secs. 2911-1 to 2911-3 inclusive, provides for the muzzling of dogs by owners when they are permitted to run at large, and providing further that police officers and dog wardens of the City shall impound any dogs found at large unmuzzled in the public highways, parks, buildings or .other, public places.

Section 2911-3 of the Municipal Code of Cleveland is as follows:

“It shall be the duty of the police officers and dog wardens of the City of Cleveland when any unmuzzled dog is found at large in the public highways, public parks, public buildings or other public places in violation of §2911-1 to take up and impound such dog in a city pound. No dog shall be released from the pound until the cost of taking up, impounding and keeping said dog is paid to the city, in an amount to be fixed by or under the authority of the director of public safety, which in no event shall be less than two dollars ($2.00). Any dog unredeemed after five (5) days from the time of being taken and impounded may be destroyed or otherwise disposed of upon the order of the director of public safety: but if such dog has a license number, an effort shall be made to loc.ate the owner immediately upon taking up of such dog. The payment of charges for redeeming a dog from pound, shall not' be construed to exempt the owner of such dog, from prosecution under the provisions of §2911-1 and §2911-2 hereof. (Ordinance No. 74612; Passed July 6, 1926. Effective August 16, 1926.)”

This Ordinance is one dealing with the public health and safety of the citizens .of Cleveland and comes clearly within the proper exercise of the police power conferred upon the City by Section 3 of Article XVIII of the Constitution.

Even if this were not true, §3633 GC confers upon all municipal corporations the power to deal with the danger and annoyance of dogs running at large.

Sec. 3633 GC provides:

“To regulate, restrain and prohibit- the running at large, within the corporation, of cattle, horses, swine, sheep, goats, geese, chickens and other fowls and animals, and to impound and hold them, and on notice to the owner, to authorize the sale of them for the penalty imposed by any ordinance, and the cost and expenses of the proceedings; to regulate or prohibit the running at large of dogs and provide against injury and annoyance therefrom and to authorize the disposition of them when running at large, contrary to the provisions of any ordinance.”

This section of the. General Code of Ohio is a' part of Title 12 dealing with Municipal Corporations, and is found in Division II “General Powers, Chapter 1, Enumerated Powers.” This section directly authorizes a municipal corporation “to regulate and prohibit the running at large of dogs and provide against the injury and annoyance therefrom, and to authorize the disposition of them when running at large, contrary to the provision of any ordinance.”

Both by its constitutional right of home rule and by the powers conferred upon municipal corporations by §3633 GC,' the City of Cleveland has the right, in the interest of the safety and health of its citizens to provide that no dog should be permitted to run at large unless muzzled and to provide that any dog found at large unmuzzled should be impounded. The City has the right to- impound unmuzzled dogs even though they may have been registered under the provisions of the General Code of Ohio dealing with that subject hereinabove referred to.

The ordinance provides that if- such dog is licensed, by which is meant “registered,” an effort should be made to contact the owner, giving the owner five days in which to redeem his dog, upon paying the cost of impounding and keeping him which in no case shall be less than two dollars ($2.00). If the dog is not redeemed within five (5) days, then he “may be destroyed or otherwise disposed of upon the order of the director of public safety.”

The plaintiff’s petition also charges that the dog warden is collecting dogs in large numbers for hospitals and experimental laboratories. There is no claim that the dogs taken-by the Dog Warden were muzzled or that their impounding was unlawful. The fact that large numbers of unmuzzled dogs were found running at, large evidences the need for the protection of the public afforded by the ordinance.

The claims of the plaintiff, therefore, cannot be founded upon the number of dogs taken, so long as those that were impounded were running at large, unmuzzled.

There remains but one question as tó whether or not a cause of action is stated under the ordinance and that is, whether or not the authority conferred upon the director of public safety to destroy or otherwise dispose of dogs impounded under the ordinance confers upon such officer the power to give or sell dogs impounded to hospitals or laboratories for experimental purposes.

It is the claim of plaintiffs appellants that the means of “otherwise disposing of dogs” must be spelled out in definite terms by the City Council and that because of the failure of the Council to define the limits of the safety director’s duties, this part of the ordinance constitutes an attempt to invest the safety director with legislative power.

It should be noted in passing, there is no allegation in the petition that the safety director is acting inhumanely in the disposition of the dogs impounded under the authority of the ordinance. If the City Council desires to define more specifically the means of disposing of dogs impounded it is their duty to do so. Such matter is for the consideration of the City Council and not the courts.

Carrying out the mandate of the ordinance in “otherwise disposing of dogs” legally impounded is in fact the performance of a ministerial or administrative duty. The safety director in performing such duty must act in good faith to accomplish the work delegated to him. Circumscribed only by the necessity of due diligence and compliance with all general rules, and laws in the conduct of the work which would include §13376 GC, dealing with the subject of cruelty to animals, the safety director is, by the ordinance, empowered to dispose of dogs impounded and not called for, to the best advantage possible.

The right to delegate such duty to the director of public safety is supported by the following authorities.

In the case of Yee Bow v. Cleveland, 99 Oh St 269, the action was to restrain the City of Cleveland from enforcing a city ordinance regulating certain laundries. The ordinance provides in part that public laundries cannot be maintained or operated without a license from the commissioner of assessments and licenses, to whom applications were required to be made. These applications were then transmitted to the health commissioner of the city for investigation and report. Thereupon the health commissioner was required to make an examination of the premises for the purpose of ascertaining whether the location, construction and ventilation of such laundries and the sanitary and drainage arrangements thereof were ‘sufficient to properly protect the public health and the health of the persons to be employed in such proposed laundry.’ Among other requirements provided for in said ordinance was the requirement that ‘all rooms used in connection with such laundry shall be provided with adequate ventilation by means of windows, air-shafts, air-ducts or other mechanical apparatus, if needed, so as to at all times insure a free circulation of fresh aid in such laundry.’

The court held in the third paragraph of the syllabus:

“3. An ordinance imposing on an administrative officer as a prerequisite to the issuance of a license, the duties of ascertaining whether sanitary and drainage arrangements are sufficient to protect the public health and whether ‘adequate ventilation’ and ‘adequate plumbing and draining facilities’ are provided on the premises, does not confer arbitrary legislative or judicial powers upon such officer in a constitutional sense. If his conduct should prove to be arbitrary or palpably unwarranted, resort may be had to the courts.”

See also: State ex rel Moock v. Cincinnati, 120 Oh St 500; 28 O. Jur. page 108, Sec. 68.

We conclude, therefore that the court was not in error in sustaining the demurrer of the defendant.

Judgment affirmed. Exc. Order see journal.

HURD, J, McNAMEE, J,concur.


author: By THE COURT: By THE COURT: By THE COURT.

text:
    CODY et, Plaintiffs-Appellees, v. MILLER, Defendant-Appellant.
    Ohio Appeals, Second District, Montgomery County.
    No. 2137.
    Decided March 9, 1951.

      R. J. Stoecklein, Dayton, for plaintiffs-appellees.
    Clifford R. Curtner, Dayton, for defendant-appellant.
   OPINION

By THE COURT:

Submitted on motion of plaintiffs-appellees to dismiss the appeal on the ground that the order appealed from is not a final order. The appeal is from an order vacating a judgment entered on a directed verdict in favor of the defendant and granting a new trial.

This action was commenced on June 25, 1947. The Supreme Court of Ohio has just recently held, in Klever v. Express, Inc., 154 Oh St 491, that:

“An order by a Court of Common Pleas granting a motion for a new trial in an action commenced prior to the effective date of the amendment to Section 6, Article IV of the Constitution of Ohio, in 1945 and prior to the amendment in 1947 of §12223-2 GC (122 Ohio Laws, 754), does not constitute a judgment or final order reviewable by the Court of Appeals, unless it clearly appears that the court in making such order abused its discretion. (Hoffman v. Knollman, 135 Oh St, 170, approved and followed.)
“The term, ‘abuse of discretion,’ as it relates to an order granting a motion for a new trial, connotes more than an error of law or of judgment; it implies an unreasonable, arbitrary'or unconscionable attitude on the part of the court in granting such motion. (Paragraph two of the syllabus in the case of Steiner v. Custer, 137 Oh St, 448, approved and followed.) ”

In the instant case there is no claim made by counsel for the appellant in his assignments of error and brief that the trial court abused its discretion in sustaining the motion for new trial. The claim is made that the trial court committed an error of law.

In the Klever case the action was commenced in 1942 prior to the amendment of Section 6, Article IV of the Constitution of Ohio, effective January 1, 1945 and prior to the amendment of §12223-2 GC, effective 'September 30, 1947. In the instant case the action was commenced on June 25, 1947, after the effective date of the amendment to Section 6, Article IV, of the Constitution, but prior to the amendment of §12223-2 GC, However, the court in the Klever case held that the amendment of Section 6, Article IV of the Constitution did not operate to validate and revitalize §12223-2 GC, as it then existed for the reason that the court had held in the case of Hoffman v. Knollman that the provision in that section, making an order granting a motion for new trial a final order, was unconstitutional. Inasmuch as the principle of law laid down in Hoffman v. Knollman applied to actions instituted prior to the effective date of the last amendment to §12223-2 GC, the order of the Common Pleas Court in the instant case granting the motion for new trial was not a final order from which an appeal could be taken to this Court unless it clearly appeared that the trial court abused its discretion.

Motion to dismiss the appeal will be sustained and cause remanded.

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

ON APPLICATION FOR REHEARING

No. 2137.

Decided March 22, 1951.

By THE COURT:

Submitted on application of defendant-appellant for a rehearing on the motion to dismiss the appeal.

The Court erroneously applied the principle of law laid down in Klever v. Express, Inc., 154 Oh St 491. In the instant case in the trial court the judgment was entered on a directed verdict in favor of the defendant, which was after-wards vacated and a new trial granted. The principle of law laid down in Durbin v. Humphrey Co., 133 Oh St 367, 14 N. E. (2d) 5, is applicable.

The first paragraph of the opinion, on page 368, is as follows:

“The sustaining of appellee’s motion for a new trial, after • setting aside a judgment rendered in favor of appellant upon its motion for a directed verdict, took away appellant’s right to have final judgment entered in its favor, and is a final order from which appeal may be prosecuted. Jacob Laub Baking Co. v. Middleton, 118 Oh St, 106, 160 N. E., 629; Hocking Valley Mining Co. v. Hunter, 130 Oh St, 333, 199 N. E., 184; Michigan-Ohio-Indiana Coal Assn. v. Nigh, 131 Oh St, 405, 3 N. E. (2d), 355; Murphy v. Pittsburgh Plate Glass Co., 132 Oh St, 68, 4 N. E. (2d), 983.”

The application for rehearing is hereby granted and the motion to dismiss the appeal is hereby overruled.

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

APPEAL ON QUESTIONS OF LAW

No. 2137.

Decided April 19, 1951.

Per CURIAM.

The petition alleges a contract of bailment of household goods delivered by the plaintiffs to the defendant for storage and safekeeping at a specified monthly rate; that such goods were to be returned to the plaintiffs upon demand; that plaintiffs made a demand on the defendant for redelivery of the goods and tendered the storage charges; and that defendant failed to comply, all to plaintiffs’ damage in the sum of three thousand dollars.

The answer admitted that plaintiffs stored certain household goods with the defendant and that the defendant was unable to return the goods because they were destroyed by fire of an unknown origin. Defendant pleads a special contract limiting liability and a general denial. The reply denied affirmative allegations in the answer.

It is claimed the trial court erred, first, in holding that a warehouseman, in the absence of an agreement to the contrary, is an absolute insurer, of the goods bailed; second, in placing the burden of proof upon the defendant to dispel a prima facie case when, in fact, plaintiffs failed to prove negligence, the plaintiffs having elected to prove negligence rather .than to depend on a prima facie case.

All errors are discussed and treated under one heading. Under §8477 GC, a warehouseman is not an absolute insurer; he is liable "for any loss or injury to the goods caused by his failure to exercise such care in regard to them as a reasonably careful owner of similar goods would exercise.” Vol, 49 O. Jur, 1305, 1306; Vol. 56 Am. Jur. 387, 388. The record does not support appellant’s contention that the trial court held that a warehouseman is an absolute insurer.

Under §8464 GC, when the plaintiffs established ownership of the goods, 'delivery for hire to the warehouseman and failure to redeliver to the plaintiffs on demand, a prima facie case was made out. The burden was on the plaintiffs to prove these facts. The proof of these facts then -cast the burden upon the defendant to explain the loss. It' Is conceded that the plaintiffs established a prima facie case-except demand. Plaintiffs claim there is sufficient evidence to warrant a conclusion that a demand for redelivery was; made. The defendant contends that no formal demand was made. The evidence shows that plaintiffs’ goods, together with other goods, in storage, were totally destroyed by fire. One of the plaintiffs, upon learning of the fire, went to the defendant’s place of business and inquired for his furniture. The defendant told the plaintiff that it had been destroyed in the fire. Thereupon plaintiff paid the defendant the charges. The law does not require the doing of a vain and useless thing. Agricultural Insurance Co. v. Constantine, 144 Oh St 275, 288, 58 N. E. (2d) 658. Under the circumstances a formal demand to deliver the furniture was not necessary. Vol. 9 O. Jur. page 495, Section 258; Vol. 67 C. J. page 530, Section 158. See also Buffalo Grain Co. v. Sowerby, 195 N. Y. 355, 88 N. E. 569. A prima facie case was thus established by the plaintiffs.

The plaintiffs presented evidence in an attempt to prove that defendant did not use due care. The plaintiffs, as a part of their case in chief, called two inspectors of the Pire Department who testified that the cause of the fire was unknown; that the Department had made certain recommendations to the defendant, prior to the fire, with which defendant had not complied; that they could not state that the fire was due to the negligence of the defendant or to his failure to reasonably careful owner of similar goods would exercise.” Vol, 40 O. Jur, 1305, 1306; Vol. 56 Am. Jur. 387, 388. The record does not support appellant’s contention that the trial court held that a warehouseman is an absolute insurer.

Is the plaintiff denied the right to go to the jury on the ground that this evidence was presented in the plaintiffs’ case? The defendant introduced no testimony. It is claimed by the defendant that the plaintiff lost the benefit of a prima facie case by presenting evidence that the furniture was destroyed by fire and in an attempt to show that the defendant did not safely keep the goods. The defendant contends that by attempting to prove more than a prima facie case, the effect was to place the burden on the plaintiffs to prove negligence and if the evidence did not establish the negligence of the defendant that' the plaintiffs had failed in their proof. The defendant relies chiefly on the case of Blackburn v. Norris, 46 Oh Ap 469, 189 N. E. 262, and Syndicate Parking, Inc. v. General Exchange Insurance Corp., 17 Abs 596. Support is found in these two cases for defendant’s contention. However, plaintiffs contend that the law announced in these two cases has been overruled in the later case of Agricultural Insurance Co. v. Constantine, 40 Abs 569, 56 N. E. (2d) 687, which was certified to the Supreme Court on the ground that it was in conflict with the judgment pronounced in Blackburn v. Norris. The Supreme Court, in 144 Oh St 275, affirmed the judgment of the Court of Appeals in the Constantine case. The plaintiffs also cite Hanlon v. J. E. Miller Transfer & Storage Co., 149 Oh St, 387, 79 N. E. (2d), 220. It is the contention of the plaintiffs that, under the doctrine of the Constantine and Hanlon cases the burden, under the facts in 'this case, was on the defendant to prove by a preponderance of the evidence that the loss was not due to the defendant’s failure to exercise due care.

In the Constantine case our Supreme Court, on page 285, held:

“The authorities are uniform in holding that proof of those facts makes out a prima facie case of liability whether the action be based upon breach of contract or upon negligence, and that the defendant must explain the loss of the bailed property.” .

On page 286 the Court finally stated the rule as follows:

“The rule supported by the weight of authority may be stated thus: A bailee may ordinarily rebut the presumption of negligence or lack of due care by proof of loss arising from theft or fire. Where, however, the bailee proves loss of the bailed article by theft but attempts no explanation of the circumstances and offers no proof of facts from which an inference of due care may be drawn, he does not rebut the presumption of negligence arising from his failure to return the bailed property. See Brown on Personal Property, 330, Section 87; 8 Corpus Juris Secundum, 348, Section 50; 6 American Jurisprudence, 452, Section 372, and cases citéd.”

The Constantine case was not an action brought under §8484 GC. However, it did lay down the general rule in Ohio applicable to bailments. In the Hanlon case the syllabus is as follows:

“Under the provisions of §8464 GC, when a warehouseman refuses or fails to redeliver goods in compliance with a proper demand by the holder or depositor, the burden is on such warehouseman to prove the existence of a lawful excuse for such refusal or failure.
“The proof of such affirmative defense must be by a preponderance of the evidence.
“In an action ex contractu under favor of this statute, the burden remains on the plaintiff bailor to prove a breach of the contract on the part of the defendant bailee by refusing or failing to redeliver the goods after a proper demand therefor.”

In the Hanlon case the trial judge instructed the jury that “The burden is upon the defendant to prove the existence of a lawful excuse for its failure to redeliver said goods upon demand, by a preponderance of all the evidence.” The Supreme Court, in commenting on this instruction, stated that it was given in almost exact language of §8464 GC, and that the trial judge was not in error in so instructing the jury.

In that case the court quotes at length from Vol. 6 Am. Jur. page 447, Section 369; Vol. 8 C. J. S. page 342, Section 50, and also Vol. 40 O. Jur. page 1315, Section 80, which latter holds:

“The statutory rule of §8464 GC, removes all doubt from the question of the burden of proving the existence of a lawful excuse for nondelivery and places the burden squarely upon the warehouseman to establish, by a preponderance of the evidence, a lawful excuse for nondelivery.”

See, also, Brenton v. Sloan’s United Storage & Van Co., 315 Ill. App. 278, 42 N. E. (2d), 945, and Benning Warehouse Co. v. Widener (U. S. C. A.), 172 P. (2d), 910.

This Court is of the opinion that in the instant case the plaintiffs were not deprived of the benefit of their prima facie case by the introduction of additional evidence on the question of whether the defendant exercised due care. The cause of action was in contract and not in tort. The introduction of this additional evidence did not change the cause of action from one in contract to one in tort. The plaintiffs having established a prima facie case, the burden was then on the defendant to prove by a preponderance of the evidence that he had used due care.

Finding no error in the record prejudicial to the rights of the defendant, judgment is affirmed.

Judgment affirmed.

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

APPLICATION FOR REHEARING DENIED

No. 2137.

Decided May 10, 1951.

By THE COURT.

The application for rehearing raises no new question and is hereby denied.

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

ON MOTION TO CERTIFY

No. 2137.

Decided June 6, 1951.

By THE COURT:

Submitted on motion of defendant-appellant to certify the case to the Supreme Court on the ground that the judgment of this Court is in conflict with the judgment in Agricultural Insurance Co. v. Constantine, 49 Abs 569, Blackburn v. Norris, 46 Oh Ap 469, and Syndicate Parking, Inc. v. General Exchange Insurance Corp., 17 Abs 596.

The Constantine case was certified to the Supreme Court on the ground that it was in conflict with the judgment in Blackburn v. Norris. We commented on the Supreme Court opinion in the Constantine case and also the Blackburn v. Norris and Syndicate Parking, Inc. v. General Exchange Insurance Corp. in our original opinion. In our original opinion we followed the principle of law, laid down by the Supreme Court in Agricultural Insurance Co. v. Constantine, 144 Oh St 275, and more particularly Hanlon v. Storage Co., 149 Oh St 387, which construed §8464 GC, which controlled in this case. Sec. 8464. GC was not involved in the cases cited in the motion.

Motion to certify is hereby overruled.

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