text:
    STATE, ex rel. FOCKE, Relator, v. PRICE, Chief, Dayton Police Department, Respondent.
    Ohio Appeals, Second District, Montgomery County.
    No. 2348.
    Decided November 17, 1955.
    Joseph W. Sharts, Otterbein Creager, Dayton, for relator.
    Herbert S. Beane, Law Director, Arthur O. Fisher, Asst. Pros., William P. Keane, Pros., City Atty’s. Office, Dayton, for respondent.
    (COLLIER, J, of the Fourth District, sitting by designation in the Second District.)
   OPINION

By MILLER, J.:

This is an action in habeas corpus wherein the relator alleges that he is being unlawfully restrained of his liberty for the reason that the warrant upon which he was arrested was not issued in accordance with law.

The record reveals that the relator was arrested upon an affidavit sworn to by George Wartzbaugh, an investigator of the City Income Tax Department for the City of Dayton, charging him with a misdemeanor under Section 13 of Ordinance No. 13922 in that he refused to permit a duly authorized agent of the Superintendent of Taxation of said City to examine the books, records and papers of the relator for the purpose of ascertaining whether or not there was any tax due; that said affidavit was sworn to before one V. Richards, a deputy clerk of the Municipal Court of said City, who thereupon issued a warrant for the arrest of the relator upon the filing of said affidavit in the Municipal Court.

The record reveals further that the relator is now being restrained of his liberty by virtue of the arrest under said warrant.

The question presented is whether the deputy clerk had authority to issue the warrant, or may such writ be issued only by the clerk of said court? Sec. 2935.10 R. C., provides:

“Any judge or clerk of a court of record, or of any municipal court, or any magistrate, may issue process for the arrest of a person charged with an offense returnable in the court having jurisdiction thereof.”

The power of the clerk is also defined in the Uniform Municipal Act, to-wit: Sec. 1901.31, Section (E) R. C.:

“The clerk of a municipal court shall have * * * power to issue and sign all writs, process, subpoenas issuing out of the court * *

The duties of a deputy clerk of such court are defined by section (H) of the above statute, to-wit:

“* * * Each deputy clerk shall take an oath of office before entering upon the duties of his office, and when so qualified, may perform the duties appertaining to the office of the clerk. * * *.”

The law defining when a warrant may issue is set forth in §2935.11 R. C., to-wit:

“When an affidavit charging a person with the commission of an offense is filed with a judge, clerk, or magistrate, if he has reasonable ground to believe that the offense charged has been committed, he shall issue a warrant for the arrest of the accused.”

Counsel for the relator urges that under §1901.31 R. C., the clerk has the power to issue the warrant and that §2935.11 R. C., requires that in exercising such power he must determine if reasonable grounds exist to believe that the offense charged has been committed. It is the contention of the relator that the power conferred upon the clerk requires an act of discretion which may not be delegated to a deputy. But we find that the Ohio authorities do not support the conclusion that such power is discretionary. It is said in 5 O. Jur. (2d) 27, Section 12, that the issuance of a warrant is a ministerial act, which may be compelled by mandamus. Citing Hornack v. State, 39 Oh Ap 203, 177 N. E. 244, and State, ex rel. Goodman v. Redding, 87 Oh St 388, 101 N. E. 275. In the Hornack case, supra, the court held that even in the issuing of a search warrant a ministerial act is involved, and a finding of probable cause by a judge or magistrate is not required. It is interesting to note that the opinion in this case was written by Judge Weygandt, who stated on page 205:

“Before commenting upon the wording of the newly-enacted statute in question, it should be noted that by the great weight of general authority the issuance of warrants, whether for search or for arrest, is regarded as a ministerial act. In 5 Ruling Case Law, 626, under the subject of ‘Clerks of Courts,’ appears the following:
“ ‘The courts uniformly hold that the office of clerk of a court of justice is ministerial, and that it includes no judicial authority except by constitutional or legislative provision. There is some conflict of opinion as to the judicial or ministerial nature of certain specific duties of a clerk of court; but if his official duty is prescribed by law, then his action in performance of that duty is ministerial.’ ”

And at page 206:

“ ‘When an official duty does not belong inherently to the office itself, but may be devolved upon some other officer to perform, it is ministerial and its performance may be required by mandamus.
“ ‘The duty assigned by statute to a municipal court judge of issuing warrants, where the complaint and affidavits are sufficient, is ministérial and one which may be controlled by judicial power, and mandamus lies to compel the issuing of such warrants.’
“Then, too, in the Rosanski ease, supra, the opinion contains the general statement that the issuance of warrants, whether for search or for arrest, is a ministerial act.”

It should also be noted that §2935.10 R. C., provides that any clerk of a court of record, or municipal court, may issue process for the arrest of a person charged with an offense. The word “power” is not found in this section as in §1901.31 R. C., which relator relies upon. This section clearly indicates that no discretion is required to be exercised by the clerk for the issuing of a warrant, but that it is a duty imposed upon the clerk.

Relator cites the case of Nicholas v. Cleveland, 125 Oh St 474, but this case is not parallel with the case at bar for it involved a search warrant issued by a deputy clerk when the statute did not give such power to the clerk. Sec. 13430-3 GC, then provided:

“A warrant for search shall not be issued until there is filed with the judge or magistrate, an affidavit. * * *.”

It will be noted that under this section no provision is made for filing the affidavit with the clerk. In holding that the clerk had no power to issue the warrant, the court stated, at page 479: “The clerk is merely a ministerial officer; his function is to carry out the orders of the judge.”

It therefore appears to this Court that the arrest of the relator was lawful. When such facts appear a discharge from custody by a writ of habeas corpus can not be allowed. In re Burson, 152 Oh St 375:

“Where a person restrained of his liberty is in custody of an officer under process issued by a court or magistrate, or by virtue of a judgment or order of a court of record, and the court or magistrate had jurisdiction to issue the process, render the judgment or make the order, a discharge from custody by the writ of habeas corpus will not be allowed. Such person has an adequate remedy at law by way of review on appeal.”

See also §2725.05 R. C.

We are therefore of the opinion that the writ may not be allowed.

HORNBECK and COLLIER, JJ, concur.


source: Caselaw Access Project

author: By FESS, J.

license: Public Domain

text:
    STATE, ex rel. STEVENS, etc., Relator, v. INDUSTRIAL COMMISSION OF OHIO et, Respondents.
    Ohio Appeals, Second District, Franklin County.
    No. 5387.
    Decided November 4, 1955.
    R. Brooke Alloway, James F. DeLeone, Columbus, for relator.
    Hon. C. William O’Neill, Atty. Geni., Paul Tague, Jr., Asst. Atty. Geni., Columbus, for respondents.
    (FESS, J, of the Sixth District; NICHOLS, PJ, and GRIFFITH, J, of the Seventh District, sitting by designation in the Second District.)
   OPINION

By FESS, J.

Relator brings his action in mandamus against the Industrial Commission on behalf of himself and some sixteen hundred other claimants similarly situated. Relator alleges in part that his claim for additional compensation was dismissed on August 13, 1954; that an application for rehearing was granted on February 21, 1955, and that on April 22, 1955, a hearing was held and a portion of the evidence submitted on behalf of relator was reduced to writing.

Relator further alleges that the procedural sections of the Workmen’s Compensation Act were amended effective October 5, 1955, and that pursuant thereto the respondent has disbanded its rehearing section, has ceased to hold hearings pursuant to former §4123.51 R. C.. and has failed and refused to set relator’s claim for further hearing and to permit him to offer further testimony on behalf of his claim under the provisions of such section, and has caused his claim to be considered as pending on appeal before respondent under §4123.516 R. C.

Relator further says that his cause of action accrued under §4123.51 R. C„ and was commenced prior to October 5, 1955, and that by respondent’s failure to provide facilities, set the claim for further hearing and refusal to permit relator to complete the testimony in behalf of his claim under said section, substantial rights accruing to relator have been impaired, and relator has been deprived of his property without due process of law in violation of the Constitutions of the United States and of Ohio; that relator has no adequate remedy at law and the action of the respondent constitutes a gross abuse of discretion and error of law.

Relator prays that a peremptory writ of mandamus issue requiring respondents to hear and determine relator’s claim under former §4123.51 R. C., and commanding them to cease and desist hearing relator’s claim under §§4123.512 to 4123.519 R. C., inclusive, or if said writ be refused, an alternative writ of mandamus issue commanding respondents so to do or to show cause why they should not so do, and for such other and further relief as may be just and proper.

Relator also makes application (supported by affidavit) for himself and the class he represents for an order ancillary to the permanent relief sought in his petition, commanding respondents to cease and desist holding hearings in relator’s case and all others of his class, pursuant to §§4123.512 to 4123.519 R. C., until the constitutionality of the statutes is finally determined.

Two questions arise upon the application for an alternative writ and ancillary injunctive relief.

1. Although the interests of the class whom relator seeks to represent are analogous in so far as the procedure adopted by the Commission is concerned, it is obvious that they have several and distinct interests arising under differing circumstances. Inasmuch as the claims of many may be more speedily allowed under the new procedure, such claimants do not have a community of interest in the subject of the action or the relief sought. Davies v. Columbia Gas & Electric Co., 151 Oh St 417; Colbert v. Coney Island, Inc., 97 Oh Ap 311. The relief sought for and on behalf of the class must therefore be denied.

2. A writ of mandamus compels action or commands the performance of a duty, while a decree of injunction ordinarily restrains or forbids the performance of an act. State, ex rel. Smith v. Industrial Commission, 139 Oh St 303. And a proceeding in mandamus, wherein an order is sought directing the Industrial Commission to cease disbursing certain funds, is essentially one in injunction and not mandamus, and is not within the jurisdiction of the Court of Appeals Cf. State, ex rel. Smith v. Industrial Commission, supra. It is conceivable that in a proper case, ancillary injunctive relief may be had incident to the determination of issues arising under extraordinary remedies, in order to maintain matters in statu quo. Cf. State, ex rel. Ellis v. Board, 70 Oh St 341. In our opinion the only distinction between the instant case and the Smith case is that the amended petition herein incidentally seeks injunctive relief, but proceeds in the main upon mandamus and a separate application for ancillary relief by way of injunction is made. Upon the amended petition and application, the primary relief sought is injunctive, — to require the Commission to cease and desist hearing claims under the mandate of the amended sections. That portion of the amended petition seeking injunctive relief is therefore denied and the application for ancillary injunctive relief is overruled.

3. An order may be entered upon the amended petition requiring the respondents to proceed to hear relator’s claim pursuant to the provisions of §4123.51 R. C., or to show cause why they have not done so, on a day to be fixed in said order agreeable to the Court and counsel for the respective parties.

NICHOLS, PJ, GRIFFITH, J, concur.


author: By BARTLETT, J.

text:
    TURNER, Admrx., Plaintiff, v. PFISTERER, Defendant.
    Common Pleas Court, Franklin County.
    No. 188546.
    Decided September 23, 1954.
    Vorys, Sater, Seymour & Pease, for plaintiff.
    Benoy & Sebastian, for defendant.
   OPINION

By BARTLETT, J.

MOTION TO STRIKE LAST PARAGRAPH FROM THE ANSWER OVERRULED.

Action for damages resulting from defendant’s automobile allegedly knocking decedent to the pavement and into the path of another car which ran over her body and dragged it about a block. Decedent died from such injuries so received.

Last paragraph of defendant’s answer avers: “Plaintiff (as administratrix) has been fully compensated for any damage which the next of kin of the decedent may have sustained by the payment of $500.00 on October 22, 1953, from David McWherter.” The answer also names David McWherter as the driver of the other car that struck decedent.

Motion of plaintiff is that the foregoing averment of payment be stricken from the answer.

The release of one joint tort feasor is a release of all, and satisfaction as to one operates as satisfaction as against the others, even though the contrary be stipulated. Ellis v. Bitzer, 2 Ohio 89.

In the case of Klages v. Kronenbitter, et al., 25 C. C. (N. S.) 191:

The answer sets forth the payment of $800.00 by the owner of the truck which collided with defendant’s car and which struck plaintiff “as a full, complete and adequate compensation for all injuries received by said plaintiff.”

A demurrer to this answer was overruled; and the Circuit Court of this district held as follows:

“It is a contract in settlement in full for the injuries received for a specified sum of money which was paid, and bars an action on account of the same injuries against a party other than the one with whom the settlement was made.”

Whatever consideration is received on a covenant not to sue, must be applied to the payment pro tanto of the recovery. 34 Cyc. 1090.

Payment is new matter and should be pleaded as an affirmative defense. Fewster v. Goddard, 25 Oh St 276.

A general denial does not authorize proof of payment. Worst v. Colonial Savings Bank and Trust Co., 11 Oh Ap 308; 29 O. Jur. Sec. 588, p. 1253.

“The term (new matter) comprehends every fact, not appearing in the petition, which defeats the action, and which the plaintiff is not required to prove to make out his case.” 31 O. Jur. Pleading, Sec. 157, p. 719.
“Also, the plaintiff is entitled to insist that any new matter constituting a defense be stated in the answer, to the end that he may have notice of it in time to meet it; and in the absence of any allegation thereof in the answer, proof of new matter is not permitted.” 31 O. Jur. Pleading, Sec. 152, p. 711.

It is true that there is authority to the effect that payment of an obligation by a stranger thereto, does not innure to the benefit of the defendant to diminish or extinguish his liability. Phillips Code Pleading, Sec. 437, p. 461; Klein v. Thompson, 19 Oh St 569; Dernham, Guardian, etc., v. Cincinnati Traction Co. 21, N. P. (N. S.) 418

However, the answer in the instant case identifies the person making the payment as the driver of the other car involved in the collision resulting in the injuries causing decedent’s death.

This Court is, therefore, of the opinion that McWherter on the face of the pleadings is not a stranger to rights of the plaintiff in the instant case; and that the case of Klages v. Kronenbitter, supra, is controlling in the instant case, and such payment was properly pleaded as new matter.

Motion to strike from the answer the last paragraph overruled.

Entry accordingly with exceptions of counsel for plaintiff.


author: By DOYLE, J:

text:
    STEVISON, Plaintiff-Appellant, v. CUMMINS et, Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23596.
    Decided February 2, 1956.
    B. Bill Murad, for plaintiff-appellant.
    Alvin Spiegel, Moses Krislov, for defendant-appellee.
    (STEVENS, PJ, HUNSICKER and DOYLE, JJ, of the Ninth District, sitting by designation in the Eighth District.)
   OPINION

By DOYLE, J:

This is an appeal from a judgment for the defendant and against the plaintiff, rendered in the Municipal Court of Cleveland.

The action was prosecuted by Robert Stevison, a former employee of John F. Cummins, doing business as The Cleveland Union Leader, for the award of severance pay, claimed by him to be due under the terms of a contract entered into for his benefit and that of others, between the defendant newspaper publisher, and the Cleveland Newspaper Guild as the bargaining agent for the employees of the paper.

Under the terms of the contract, effective as of June 1, 1951, it is obvious that the plaintiff would be entitled to a judgment if the contract was in force and effect at the time of the plaintiff’s resignation. That question, however, was put in issue by the defendant, and it was specifically denied that the contract was in force and effect at the time of the plaintiff’s employment severance.

The Court, pursuant to trial, in a written “conclusions of fact found separately from conclusions of law,” made upon motion pursuant to §2315 R. C., found that an agreement had been entered into between the Cleveland Newspaper Guild and The Cleveland Union Leader which terminated the severance pay provision of the contract of June 1, 1951, and specifically provided that “severance pay was not to be payable in the event of a voluntary quit or resignation.” The Court further found that "the plaintiff has failed to establish by preponderance of the evidence that, at the time of his resignation or voluntary quit, there was in effect any agreement entitling him to severance pay in said event.”

This Court is not in a position to challenge this finding of the Trial Court, for the lack of a proper bill of exceptions. The bill before us is narrative in form, and fails to show that it contains all of the evidence. We therefore must indulge the presumption that the Trial Court had before it sufficient evidence to reach its conclusion.

In Regan, Admx., v. McHugh, 78 Oh St 326, the policy of this state is stated as follows:

“2. That a bill of exceptions contains all the evidence offered upon the trial of a cause can be shown only by the certificate of the trial judge.”

In the case before us, there is no certificate to that effect.

Further, “Where the ground of reversal is that the verdict is not sustained by the evidence, it must affirmatively appear that the bill of exceptions contains all the evidence." See: Gardner, Ohio Civil Code, Sec. 11564, and cases cited under note 4 thereof.

In conclusion, we determine that the finding of fact made by the Trial Court was sufficient to justify a judgment for the defendant.

Judgment affirmed.

STEVENS, PJ, HUNSICKER, J, concur.


author: By THE COURT.

text:
    CALDERON, d. b. a. CASTLE BAR, Appellant, v. BOARD OF LIQUOR CONTROL et, Appellees.
    Ohio Appeals, Second District, Franklin County.
    No. 4983.
    Decided February 8, 1954.
    Kosling & Battisti, Frank J. Battisti, of Counsel, Youngstown, for appellant.
    Hon. C. William O’Neill, Atty. Geni., Robert Krupansky, Kiehner Johnson, Asst. Attys. Geni., Columbus, for appellee.
   OPINION

By THE COURT.

This is a law appeal from the judgment of the Common Pleas Court sustaining an order of the Board of Liquor Control revoking the D-5 and D-2 liquor permits issued by the Department to the appellant. The charge was illegal sale of intoxicating liquor on Sunday and also hindering and obstructing the investigation. The appellant is not urging that the order of the Board is not supported by reliable, probative and substantial evidence, but is contending that, in arriving at this conclusion and fixing the penalty, it gave consideration to evidence not properly in the record. It appears that the proceedings before the Board, which were held on March 11, 1953, were properly filed in the Common Pleas Court, but that there was attached to the same certified copies of journal entries of the Board showing that the appellant had been found guilty on three prior occasions of violations for which suspensions had been ordered. Two of these we re for Sunday sales and the other was for a violation of the Board’s regulation with reference to gambling. An examination of the journal entry recites that the Board made its finding from the “evidence” and which, as certified, does not include the prior convictions. These were merely attached to the record subsequent to the certification. Therefore, it must be concluded they were not given consideration in determining the issues presented. Such attachments to the record may not be considered by a reviewing Court when not legitimately made a part of same. The leading case in Ohio on the general subject is Goldsmith v. The State, 30 Oh St 208, the second paragraph of the syllabus of which is as follows:

«* i- + Exhibits and affidavits, given in evidence on the hearing of a motion, which are not legitimately part of the record, cannot be considered by a reviewing court on error to the decision of the motion, though they may have been recorded by the clerk as part of the case, unless they are properly brought upon the record by bill of exceptions.”

It is said in 2 O. Jur. 440:

“The proper method of bringing affidavits into the record for review is by bill of exceptions.”

In Long v. Cassiero, et al., 105 Oh St 123, the Court was considering an attack upon a verdict on a motion for new trial, which was supported by affidavits of certain of the jurors in the case, which affidavits were not incorporated in the bill of exceptions. Judge Jones, in the first paragraph of the opinion, page 125, says:

“From the viewpoint of procedure, therefore, the main question presented to this court passes out of the case, since it has been held that such affidavits must be incorporated in the bill of exceptions and verified by the trial judge.”

This Court passed upon the same question in Simes v. Dayton-Xenia Ry. Co., 24 Abs 595, the third paragraph of the syllabus of which provides:

“Affidavits tendered in evidence to support the claim of the defendant that a quotient verdict was returned cannot be considered by the reviewing court on error even though filed with the clerk in the trial court unless exemplified in a bill of exceptions.”

The appellant relies upon the case of Myers v. The State, 46 Oh St 473, which is not on all fours with the case at bar for the reason that in the cited case the improper evidence was considered by the Court in determining the issues. This is exemplified by the 6th paragraph of the syllabus, to wit:

“It is not competent for him to take judicial notice of, and consider in his deliberations, that the respondent had been guilty of another contempt of the same court, for which he had theretofore been tried and found guilty. And where it appears that the consideration of such facts may have influenced the exercise of discretion, in fixing the penalty, to the prejudice of the respondent, the proceeding will be reversed for such error.” (Emphasis ours.)

Finding no error in the record and finding further that the order is supported by reliable, probative and substantial evidence, the judgment will be affirmed.

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


author: By HORNBECK, J.

text:
    STATE, ex rel. NOVACK, Plaintiff, v. ECKLES, Supt., London Prison Farm, Respondent.
    Ohio Appeals, Second District, Madison County.
    No. 207.
    Decided December 19, 1955.
    Nicholas Novaclc, London Prison Farm, London, on his own behalf.
    C. William O’Neill, Atty. Geni., Roger B. Turrell, Asst. Atty. Geni., Columbus, for respondent.
   OPINION

By HORNBECK, J.

Submitted on motion of respondent “to dismiss the above entitled action for the reason that it does not state a cause of action” Upon a reading of the 29 page document which the plaintiff has filed, we understand why respondent might be disposed to file the motion to dismiss.

The form of petition or application for writ and its contents is so definitely set up in §2725.01 and §2725.04 R. C., that no one should have difficulty in preparing a proper petition for a Writ of Habeas Corpus.

The plaintiff has incorporated, in what he probably intended for a petition, a very elaborate brief much of which is not pertinent to the question which apparently he seeks to raise. However, a careful examination of the document filed by the plaintiff discloses that plaintiff charges that he was improperly adjudged to be guilty of the offense for which he was sentenced, that he is now a prisoner at the London Prison Farm in the custody of defendant, and that he is illegally restrained.

The motion to dismiss will be overruled.

MILLER, PJ, concurs.

WISEMAN, J, not participating.


text:
    SOUTHWORTH HEAT TREATING CO., Plaintiff-Appellant, v. CLEVELAND METAL CLEANING CORP., Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23540.
    Decided December 30, 1955.

      Baker, Hostetler & Patterson, for plaintiff-appellant.
    John B. Oviatt, for defendant-appellee.
    (STEVENS, PJ, DOYLE, J, of the Ninth District, and MIDDLETON, J, of the Third District, sitting by designation in the Eighth District.)
   OPINION

By DOYLE, J:

This is an appeal on questions of law from a judgment of the Cleveland Municipal Court, entered for the defendant pursuant to a directed jury verdict for the said defendant, and the subsequent overruling of the plaintiff’s motion for a new trial.

The following facts are sufficient, we think, to point out the questions of law presented.

The Baj Tool Co. and Mutual Metal Products, Inc., forwarded, to the Southworth Heat Treating Co. (plaintiff in the trial court and appellant here), a quantity of metal or steel parts for the purpose of hardening by heat treatment. In this treatment, the silver colored metal changes color, and the work comes out a black or brown color, “with sometimes a tight scale (and), sometimes a little loose, flaky scale.” This scale is a metal oxide, and occurs when the metal under high temperature is exposed to “corrosive conditions.”

When the machined parts sent to the Southworth Heat Treating Company were heat treated, a scale did form on them, and, as a result thereof, The Southworth Company sent them to The Cleveland Metal Cleaning Corp. (the defendant in the trial court and appellee here), pursuant to contract, for the removal of the scale by a process known in the trade as pickling — i. e., placing the affected parts in an acid bath, which, under certain conditions, causes chemical action.

When the Cleveland Metal Cleaning Corp. had completed its work of pickling and oiling, and returned the parts to The Southworth Co., it was found, so the petition stated, “that said parts were treated in such an unskillful, negligent and unworkmanlike manner that they were so pitted and reduced in diameter as to be unfit for use,” and that “by reason of its failure to treat them in the manner agreed upon * * *, plaintiff has been damaged * * *.”

The plaintiff sought damages in an amount measured by the entire value of the products when they were delivered to the defendant, plus the enhancement through the heat treatment rendered by plaintiff, less the value as scrap, and, in doing so, it attempted to prove the value of the articles when they were first delivered to it; then the increase in value due to the heat treatment; then the value following the acid treatment by the defendant. The court denied the plaintiff this testimony.

It is not entirely clear from the record upon what theory of law the court based its rulings. Significant, however, is the following assertion in the appellee’s brief:

“* * * it will be noticed that the record does not show that the plaintiff proved any damages whatsoever that it personally sustained

The brief then cites §2307.05 K. C., which provides that an action must be prosecuted in the name of the real party in interest, except as provided in §§2307.06 to 2307.08 K. C., inclusive. These latter sections are not pertinent to this case.

This, then raises the question whether a bailee of goods, who is hired for services to be bestowed upon the things delivered, can sue and recover from a third person to whom the property is bailed by the original bailee, for the entire damage brought on by negligent work upon the property by the said third party. Is such first bailee the real party in interest to sue for the entire damage to the property?

The historic rules of the common law have been generally adopted in this country; that either the bailor or the bailee might sue a tortfeasor for the destruction or injury to the bailed goods. 2 Pollack <Sz Maitland, History of English Law, 169 et seq; Holmes, The Common Law, 167 et seq.

Upon recovery by the bailee of the full amount of the damage to the property, he holds for himself his own damages growing out of his connection with the bailment, and the remainder for the use of, or in trust for, the owner. Nor is the tort-feasor concerned in whether the bailee will account to the bailor in respect to the damages collected, for payment to the bailee will bar any subsequent suit by the bailor. While various theories are advanced for the rules here stated, none of them would seem to present any distinction between actions in tort and actions in contract.

It is not our purpose to explore the several theories upon which the above rules are said to be founded. Some courts say that the right of the bailee to sue for the entire damage is based on his special interest in the bailed property. Others say that his right is based on his possession, or right of possession. Regardless of the reasons for the rule, a full recovery by the bailee must depend on the express or implied consent of the owner, and for this reason the recovery of full damages by the bailee can always be pleaded in bar to any later action by the owner.

It is the conclusion of this court, and we so hold, that the South-worth Heat Treating Co., the original bailee, is the owner of the right sought to be enforced; is in a position to discharge the defendant from further liability for the same damages; and, as a consequence thereof, is a real party in interest within the meaning of the statute.

See: Nosse v. Rose, 45 Oh Ap 54, and cases and texts therein cited.

The record before us shows that the defendant (appellee) agreed to clean the scale from and to oil 960 pounds of heat-treated steel parts, and do the work in accordance with the usual and ordinary commercial practice; the parts had been received from the bailor by the plaintiff (appellant), and, while being heat treated, a scale had formed — not an unusual occurrence, and causing no material damage to the parts; the parts were then delivered to the defendant for the removal of the scale, and, upon completion of this operation, the parts were returned to the plaintiff, when it was discovered that they had been so damaged that they had only a scrap value.

The testimony further was to the effect that the parts had been damaged by over-pickling, either because (1) they had been kept too long in an acid bath, or (2) the temperature of the acid was too high, or (3) the concentration of the acid was too great.

As heretofore indicated, the plaintiff offered testimony to prove the reasonable value of the steel parts when they were delivered to the original bailee, the plaintiff; the amount by which their value had been enhanced by the heat treatment; and the reasonable value of these parts when they were returned to the plaintiff in their damaged condition. This testimony was denied the plaintiff.

In ruling out this evidence, we find error of a prejudicial character committed by the court, as will be later demonstrated.

The alleged tort-feasor, if a jury should find it to be such, was required to respond in damages for the difference between the reasonable value of the goods when they were delivered to it, and the reasonable value of the goods in their damaged condition when returned to the plaintiff. This evidence, when considered by a jury, would permit such a finding if it also found the necessary issue of negligence.

This, then, brings us to the question of negligence.

There is evidence which tends to prove that the parts were in good condition when delivered to the defendant, except only that their appearance was bad due to the scale, which could be removed under established methods. The defendant undertook to remove the scale in the normal conduct of his own business.

An expert witness testified to three different theories, one or more of which he said caused the damage to the product. The burden of proving negligence, of course, rests on the plaintiff in cases of this kind. Sometimes, however, the very nature of the injury may itself afford prima facie proof of negligence, when consideration is given to circumstances from which a jury might have drawn inferences unfavorable to the defendant.

A plaintiff is not always required to point out the precise act of which, or omission of duty by which, the negligence consists. Where the damage to property is one which, in the ordinary course of events, would not have happened but for the want of ordinary care in a failure to perform the work on the property in a skillful and workmanlike manner, under an express or implied agreement that the work would be so performed, a prima facie case is made; and it is then incumbent upon the defendant to show that he took the precautions and exercised the skill of an ordinarily prudent person engaged in the same or similar business.

Persons or companies holding out as specialists in their respective fields are presumed to know the nature and character of the work they do, and the results likely to follow a negligent or unskillful performance by them. They promise impliedly to employ the skill of their art, and it is their duty to do so.

We are of the opinion that the plaintiff made a prima facie case, and if the court directed the verdict on that ground, it committed prejudicial error.

In conclusion, and epitomizing some of the above discussion, we hold:

(1) The court erred in excluding the proffered evidence tending to prove the reasonable value of the articles in their various stages of handling.

(2) The court erred in holding that a prima facie case of negligence had not been shown.

(3) The court erred in holding that the plaintiff could not maintain the action, and in its refusal to permit an amendment to the plaintiff’s petition to conform to the proof.

Judgment reversed and cause remanded for a new trial. Reversed and remanded.

STEVENS, PJ, MIDDLETON, J, concur.


text:
    HOWARD, Plaintiff-Appellee, v. BARNES, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 4857.
    Decided November 21, 1952.
    Herbert S. Duffy, Thomas J. Duffy, Columbus, for plaintiff-appellee.
    John H. Cooper, Columbus, for defendant-appellant.
   OPINION

By THE COURT.

This is a law appeal from the judgment of the Municipal Court of Columbus. The petition sets forth two causes of action:

(1) Forcible detention;

(2) Rent due.

The record reveals an answer was filed by the defendant which consisted of a general denial and a counterclaim for overcharges dating back to 1947. After denying generally all the allegations of the petition the answer continues with some five pages of evidentiary and impertinent allegations, all of which were improper.

At the beginning of the trial the plaintiff moved that the answer be stricken from the files for the aforesaid reasons. This motion was sustained, the Court pointing out that in forcible detention actions an answer is not necessary. Rule 18 of the Municipal Court so provides and this Court so held in the case of Schmidt v. Hummell, 81 Oh Ap 167. The record reveals that during the course of the trial the Court permitted testimony to be offered relating to all issues which could be raised by general denial. The Court probably should have ordered the objectionable matter stricken from the answer since one was tendered, but regardless of the merit of the motion the Court’s ruling thereon was in no wise prejudicial to any of the defendant’s rights.

It is next urged that the Court erred in permitting the plaintiff to amend his petition at bar. This is a matter resting within the sound discretion of the Court and which we find the Court properly exercised. The record discloses that the premises sought consisted of a hotel room, not under rent control, occupied by the defendant at the rate of $3.00 per day, and that the plaintiff complied with all statutory regulations necessary to maintain the action. The defendant admitted possession of the room, and receipt of notice to vacate, but seems to be urging the plaintiff failed to comply with the statutory requirements of filing a schedule of rent with the State Fire Marshal. This statute, §843-18 GC, provides:

“The owner or manager of each hotel shall post in a conspicuous place in each room thereof a card or sign stating the price per day of such room, and shall file with the state fire marshal a diagram or list showing the price of each room in said hotel and no advances shall be made in this schedule, without twenty days’ written notice to the state fire marshal.”

The record reveals the plaintiff was duly licensed by the State; that in 1947 a schedule rate was filed with the fire marshal and that the rate was posted on this defendant’s hotel room door. The rate scheduled with the fire marshal fixed the maximum rent for this room at $3.00 per day. However, when this schedule was filed the rate the defendant was paying was less than the maximum. On March 1, 1952, the defendant's rate was raised to $3.00 per day and she was notified of the increase ten days prior to its going into effect. The appellant urges that since the increased schedule was not filed with the State Fire Marshal, there was a violation of the statute. However, since the new rate did not exceed the maximum scheduled with the State, there could be no necessity to amend the same. We are indeed doubtful as to any benefit that could enure to this defendant in case there had been a violation. However, that question is not now before us.

The record discloses further that the appellant attempted to question the plaintiff’s title to the real estate, which the Court properly denied, for the only issue involved was the right of possession. 19 O. Jur. Sec. 10, p. 182.

We find the Court allowed the defendant a wide latitude in presenting her defense and that no prejudicial matter intervened. The record clearly supports the plaintiff’s judgment for restitution and the amount found to be due. The judgment will be affirmed.

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


author: By GARY, J.

text:
    TULLIUS, In re.
    Probate Court, Muskingum County.
    Nos. 3847, 3846.
    Decided August 17, 1955.
    John J. Rericha, for Donald and William Tullius.
    Frank J. Micheli, for Mr. Anderson.
   OPINION

By GARY, J.

Relator, Donald E. Tullius was arrested in Washington Township, Muskingum County and taken before a Justice of the Peace in Falls Township, where a complaint had been filed charging him with assault and battery.

Relator asked to be given a jury trial, but was given a waiver of trial by jury which he signed. Without hearing further evidence, the Justice of the Peace'found him guilty, fined him $100.00 and costs of $27.42, and upon non-payment of the fine and costs, committed him to the Muskingum County jail.

Relator, William Tullius, was likewise arrested in Washington Township, and fined by the Falls Township Justice of the Peace in the amount of $150.00 and costs of $33.26 on an assault and battery charge. However, in this case, evidence was introduced before the Justice of the Peace prior to the conviction. He was also committed to the Muskingum County jail for non-payment of the fine and costs.

Both relators contend they are unlawfully restrained of their liberty, and have filed petitions in habeas corpus praying for their release.

Relators have raised several issues in support of their petitions. They may be summarized as follows:

First: That the Justice of the Peace was without jurisdiction to hear the cases.

Second: That the Justice of the Peace was disqualified by reason of his pecuniary interest in the outcome of the proceedings.

Third: That relator, Donald Tullius, was deprived of his liberty without due process of law by reason of the fact that no evidence was introduced at his trial.

We will consider these propositions in the above order.

The jurisdiction of justices of the peace in criminal matters is set out in §2931.02 R. C., in part as follows:

“A Justice of the Peace is a conservator of the peace and has jurisdiction in criminal cases throughout the township in which he is elected and where he resides, and county-wide jurisdiction in all criminal matters only upon affidavit or complaint filed by the prosecuting attorney or upon affidavit or complaint made by the sheriff, the party injured, or any authorized representative of a state or federal department, in the event there is no other court of concurrent jurisdiction other than the court of common pleas, police court or mayor’s court and on view or on sworn complaint to cause a person, charged with the commission of a felony or misdemeanor, to be arrested and brought before him, to inquire into the complaint and either discharge or recognize him to be and appear before the proper court at the time named in such recognizance, or otherwise dispose of the complaint. * * * (continued)”

The contention has been made that the Zanesville Municipal Court is a court of concurrent jurisdiction as described in the above section. The Municipal Court Act (§1901.20 R. C.), provides:

“The court also has jurisdiction within the limits of the county or counties in which its territory is situated of those crimes and offenses which are within the county-wide jurisdiction of justices of the peace.”

Sec. 2931.02 R. C. gives justices of the peace county-wide jurisdiction over eighteen specific types of cases. These are the cases which the Municipal Court act places in the concurrent jurisdiction of the Municipal Court. This does not include the offenses of assault and battery, and accordingly the justice of the peace would have jurisdiction over the relators’ cases, since the complaint was filed by the injured party.

The relators also contend that the jurisdiction of the justice of the peace is limited to either the discharge or the binding over of the defendants to the grand jury. This is undoubtedly true in case of a felony, but it is not true in case of a misdemeanor. The definition given in the Revised Code, §1.06 R. C., states:

“Offenses which may be punished by death or by imprisonment in the penitentiary are felonies; all other offenses are misdemeanors.”

The offense of assault and battery is punishable by a fine of not more than two hundred dollars and imprisonment of not more than six months, or both. (Sec. 2901.25 R. C.) Since imprisonment of less than one year means imprisonment in the county jail (§1.05 R. C.), it is therefore apparent that the offense is a misdemeanor.

Sec. 2937.11 R. C., provides that if the offense charged is a misdemeanor and the accused waives a jury in writing, the magistrate may render final judgment. The justice of the peace therefore had jurisdiction to hear the cases and render judgment if properly qualified.

However, on the question of qualification we find that there is a clear cut line of decisions which hold that the justice of the peace is disqualified by reason of any pecuniary interest in the outcome of the proceedings. This doctrine was established in Ohio by the case of Tumey v. State, 273 U. S. 510, wherein it was held that the interest of a magistrate in receiving court costs in a criminal case is sufficient to disqualify him from hearing the case. In the case of In Re Canfield and Duckett, 26 NPNS 465, it was held that since the justice of the peace was disqualified, the proceedings were void ab initio, and that habeas corpus was a proper remedy for one imprisoned by virtue of such a commitment. The case of Foster v. State. 26 NPNS 476, holds that disqualification for pecuniary interest is not removed by a waiver of trial by jury.

In the almost thirty year period since the Tumey case was decided, it is rather amazing that the legislature did nothing to correct the situation until the passage of the justice of the peace salary bill this year. The fact that they did pass this bill indicates that they now have recognized the fact that it is impossible to receive an impartial trial before a magistrate whose income depends on costs received only in the event of a conviction. This law will not be effective until January 1, 1956, after which time the costs will be paid into the county treasury. In the meantime, however, justices of the peace receive the costs as their compensation.

It has been suggested that costs are usually so small as to be trifling and within the rule, tie minimis non curat lex. The costs in these cases were $27.42 and $33.26, which are by no means trifling. Many men in'this county do not make that much in a week. Furthermore, when it*'is considered that the justice of the peace has numerous cases, which, over a period of a year, would run into thousands of dollars, it can be readily seen that the pecuniary interest of the justice of the peace is direct and substantial. This would be sufficient to disqualify him in any case in which his compensation was dependent upon conviction of the accused parties. The convictions of relators were therefore void, as they were denied due process of law as guaranteed by the 14th Amendment of the United States Constitution. Their subsequent imprisonment for nonpayment of fines and costs were also illegal, and they are improperly held in the county jail.

The relator, Donald E. Tullius has also raised the point that he was convicted without any evidence having been heard. The testimony at this hearing indicates that this was true, and for this reason also, relator, Donald E. Tullius, was denied due process of law and is improperly imprisoned.

The relators are ordered released.


author: By BIRRELL, J.

text:
    OHIO EDISON COMPANY and five others, Plaintiffs, v. McELRATH, Recorder et, Defendants. (Six cases.)
    Common Pleas Court, Trumbull County.
    Nos. 63392, 63393, 63394, 63425, 63427, 63428.
    Decided February 2, 1955.

      Hoppe, Day & Ford, By Henry Hoppe, James Frey, D. Bruce Mansfield, John R. White, on behalf of plaintiff Ohio Edison Company.
    Mitchell Shaker, on behalf of plaintiff Stanley V. Wilder et al in Case No. 63393.
    MacQueen & MacQueen, By James R. MacQueen, on behalf of plaintiff Delbert Garland in Case No. 63394.
    R. C. Westenfield, on behalf of plaintiff David W. Grainger in Case No. 63425.
    Mitchell F. Shaker, on behalf of plaintiff Carmen Di Cristofaro in Case No. 63427.
    MacQueen & MacQueen, By James R, MacQueen, on behalf of plaintiff Ellis Bequeath in Case No. 63428.
    Charles H. Anderson, Prosecutor Trumbull County, Keating & Polansky, By Stanley Polansky, Manchester, Bennett, Powers & Ullman. By Franklin B. Powers, on behalf of defendants.
   OPINION

By BIRRELL, J.

During the First World War the Carnegie Steel Company, in the expansion of its business, constructed a new steel mill in Weathersfleld Township across the Mahoning River from the cities of Niles and Girard. About the same time the McDonald-Niles Real Estate Company purchased, and platted the surrounding farm land. From this platted land the Village of McDonald was ultimately incorporated, including the property of the Carnegie Steel Company. Here were constructed homes for the employees of the Steel Company, and a beautiful Village with paved streets, schools, park, recreational facilities, and all the necessary Municipal Buildings grew upon the 900 acres included in the boundaries of this incorporated Village. The great valuation of the Carnegie Steel Plant provided sufficient taxes to support the schools and the Municipal activities without an unduly high rate of taxation upon the properties of the home-owners.

All of the platted lands, however, were not included in the boundaries of the Village, and portions known as the McDonald-Niles Realty Company Plats, A, B, and C, constituting the lands west of the boundaries of the Village, were neither included nor improved. Although a few lots had been sold and individual houses constructed in these unincluded plats, much of these plats was later vacated by reason of the lack of demand for lots outside the Village, the insolvency of the Real Estate Company and the Receivership which ultimately overtook it. The families who had located their dwellings on these lots may have envied their more fortunate neighbors who had selected theirs in the Village where the expense of more extensive improvements was lightened by the presence and taxable-availability of the Carnegie Steel Company. They were partially benefltted, however, by having their territory taken into the McDonald Village School District. The Village of McDonald had never cared to annex these lands, perhaps because of their low tax value and lack of improvements which might cost the Village good tax-money to provide.

About the year 1952 The Ohio Edison Company, having previously acquired land along the Mahoning River north of the Plats, A, B, and C, began the construction thereon of an extensive Plant for the production of electricity which it distributes and sells throughout Northeastern Ohio and Western Pennsylvania including the cities of Youngstown, Girard, Niles, Warren, Sharon and many lesser communities. The value for tax purposes of this partially constructed plant for the tax year 1953 was reported by the County Auditor at $5,831,790.00 and officers of the Company estimated that perhaps $15,000,000.00 or more would be spent in improvements upon its property before the Plant was completed, thus finally creating a rather substantial tax-valuation.

Shortly after the coming of The Ohio Edison plant dreams of annexation to McDonald Village again blossomed in the hearts of the inhabitants of Plats A, B, and C, and a petition for this purpose was prepared and application made to annex not only plats A, B, and C, but certain adjoining farm lands, together with the Ohio Edison property (O. E. Ex. No. 14). Unfortunately the Trumbull County Commissioners refused to consent to such annexation. Shortly thereafter a petition was filed with the Weathersfield Township Trustees to incorporate the same lands into a Village of Hillcrest. Upon vote of the inhabitants of this area the application was carried and the Trustees filed the required transcript and papers with Marybelle McElrath, the Recorder of Trumbull County (O. E. Ex. No. 1), Defendant in these actions.

Now, under the provisions of §707.11 R. C., and within the ten days provided by §707.20 R. C., petitions for injunction “restraining the Recorder from making the record and certifying the transcript,” were filed by the following parties:

Ohio Edison Co., on its own behalf, Case No. 63392.

Stanley K. and Ann Louise Wilder, owners of property in Niles City School District, Case No. 63393.

Delbert Garland, owner of property in Weathersfield Township, Case No. 63394.

David W. Granger, owner of property in Niles City School District, Case No. 63425.

Carmen Di Cristofaro, owner of property in Niles City School District and Weathersfield Township, Case No. 63427.

Ellis Bequeath, owner of property in the area sought to be incorporated and in Weathersfield Township School District, Case No. 63428.

The foregoing six cases were consolidated for the purpose of the trial, and are before the Court for determination upon the pleadings, evidence, arguments and Briefs.

The grounds relied upon by the Plaintiffs are those set forth in §707.11 R. C., which reads as follows:

“Within sixty days from the filing of the papers relating to the incorporation of villages by the board of county commissioners with the county recorder as provided by §§707.08 and 707.09 R. C., any person interested may make application by petition to the court of common pleas, or, if during vacation, to a judge thereof, setting forth the errors complained of, or the inaccuracy of the boundaries, or that the limits of the proposed corporation are unreasonably large or small, or that it is not right, just or equitable that the prayer of the petition presented to the board be granted, or containing any or all of such averments, and praying an injunction restraining the recorder from so making the record and certifying the transcript.”

These grounds will be discussed in the order therein set forth.

Errors Complained of

New errors on the part of the Trustees in the proceedings submitting the question of incorporation to the vote of the electors are complained of, probably because that matter was litigated and carried to the Supreme Court with the result set forth in the case of State, ex rel. Moore v. Trustees of Weathersfield Township, 161 Oh St 38. It is urged that the Trustees had no jurisdiction to act upon territory which includes platted lands, resting this suggestion upon the argument of the dissenting opinion in the case of Wachendorf v. Shaver, 149 Oh St 231, which dissenting opinion coincided with the opinion and decision previously made in that case by the Common Pleas Court, 33 O. O. 458. In this respect, however, this Court is bound by the majority opinion of the Supreme Court ably rendered by our own Judge Carter and upholding the right of Trustees to include “platted” as well as “unplatted” lands.

“Inaccuracy of the boundaries"

Sec. 707.04 E. C., among other requirements of the Petition for incorporation, requires; “(A) An accurate description of the territory embraced within the proposed Municipal Corporation.” It is claimed that the description is inaccurate in three respects: to-wit. the point of beginning, the northeast corner and the easterly courses of the northern boundary. The claim of inaccuracy of the point of beginning is untenable since it was discovered that the Trumbull County map (Bequeath & Garland Ex. No. 5) is incorrect in locating the north line of the Village of McDonald along the south bank of the Mahoning river. The official description contained in the Petition for Incorporation of McDonald Village (Defendant’s Ex. H.), which incorporation was authorized by the Board of County Commissioners September 17th, 1918, located that line “along the center line of Mahoning River.” Thus there is a “common point in the corporation lines of the Village of McDonald and the City of Niles in the middle of Mahoning River and the center line of Olive Street Extension,” which would not have been a fact had the boundary line of McDonald Village been along the south bank of the River.

The easterly courses of the northerly boundary of the proposed Village of Hillcrest and its north-east corner, however, are inaccurate. This boundary, as included in the amended description used in the petition, starting from the last “accurate” point in the description, the whole of which follows for the purpose of properly portraying the error (emphasized in the description) is as follows:

“Situated in the Township of Weathersfield, County of Trumbull and State of Ohio and known as being parts of Section 6 and 7 in said Township and bounded and described as follows: Located in Section 6 of said Township and beginning at a common point in the corporation lines of the Village of McDonald and the City of Niles in the middle of the Mahoning River and the centre line of Olive Street Extension; thence westerly along the southerly easterly and southerly corporation lines of the City of Niles to the east right of way line of Weathersfield Township Road No. 63 — Section D.: Thence southerly along the east right of way line of said Township road to the northerly right of way line of County Highway No. 64 E: thence in a southeasterly direction along the northerly line of County Highway 64 E. to a point in the south line of aforesaid Section 7 in said Township; thence easterly along the south line of Section 7 to the east line of said Section 7 and the centre line of what is now known as McDonald Avenue; thence along the center line of McDonald Avenue and the east line of Section 7 in a northerly direction to the corner stone where sections 7, 3, 8 and 2 in Weathersfield Township come together, thence continuing in a northerly direction a distance of approximately 1310 feet to a point in the common line of Sections 6 and 3 in said township; thence continuing along a line in a southwesterly direction on a radius of 2110.08 feet and through an arc of 917.23 feet to a point on a tangent; thence along said tangent with a course of S. 54° 58' W. to a point in the centre line of Olive Street Extension; thence northwesterly along the centre line of Olive Street Extension a distance of about one hundred forty five (145) feet to the centre line of the Mahoning River and the place of beginning.”

As one carefully follows the description from “the corner stone where sections 7, 3, 6 and 2 in Weathersfield Township come together,” one finds the next course reads—

“thence continuing in a northerly direction a distance of approximately 1310 feet to a point in the common line of sections 6 and 3 in said Township,”
it will be immediately noticed that the point to which this course of approximately 1310 feet leads is not definitely located, for we are told only that it is “approximately 1310 feet” northerly “in the common line between sections 6 and 3.” The northerly end of this course should be the north-east corner of the proposed Village in addition to being the point of commencement of the succeeding course. Thus, not knowing from where to start, the next course cannot be properly platted both because of the foregoing defect as to point of commencement and because of the inaccuracy of the course itself, as will be apparent on examination.

The easterly portion of the northerly boundary from the uncertain point above discussed, as set forth in the description is as follows:

“Thence continuing along a line in a southwesterly direction on a radius of 2110.08 feet and through an arc of 917.23 feet to a point on a tangent.”

The term “in a southwesterly direction” is very broad and may indicate any direction within the 90° spread between a “southerly” and a “westerly” direction. Nor are we aided in this respect, as one might expect to be, by the remaining courses, to locate the point to which this course leads, which point, should be the beginning of the succeeding course. The succeeding course is described as follows:

“Thence along said tangent with a course of S. 54° 58' W. to a point in the center line of Olive Street extension.”

This point is in the center line of Olive Street extension all right, but where? The final course in the description, which should fix the definite ending point of this so-called tangent course, is also uncertain: to-wit:

“Thence northwesterly along the center line of Olive Street Extension a distance of about 145 feet to the center line of Mahoning River and the place of beginning.”

Again the indeterminate distance of “about 145 feet” prevents the location of the ending point of the courses described as “on a radius of 2110.08 feet * * * to a point on a tangent” and “thence along said tangent to a point in the center line of Olive Street extension.”

To these courses there is neither accurate beginning nor accurate ending. They float without anchor to the extent of the elasticity of the uncertain words: “about” and “approximately.”

Not only are the point of beginning and ending of these two courses uncertain but the curved course of 917.23 feet is inaccurately described. The center of the circle, of which 2110.03 feet is the radius, is not located. This center may be either southeast or northwest of the 917.23 foot arc. Consequently this arc, although running in a generally southwesterly direction may bend either to the right or to the left depending upon where the center of the circle is located. It can easily be seen that, even if the beginning and ending of this “917.23 feet” course were anchored, the course itself might bend either way over this arc to the extent of an area in the shape of a pointed ellipse. For this reason alone the location of this boundary is most impossible to determine.

To illustrate the inaccuracy of this particular course, and the ease with which it could have been accurately described, attention is directed to the description appearing in the deed from the Real Estate and Improvement Company to the Carnegie Steel Company, recorded at Vol. 322, pp. 194-6 Trumbull County Records of Deeds (Deft’s Ex. No. A), the pertinent portion of which is emphasized in the following copy:

“Beginning at a point in the dividing line between property of the Grantor and property of the Grantee at the Northerly corner of the tract hereby conveyed, said point being also on the dividing line between great lot 3 and great lot 6 of (Weathersfield) Township and distant 200 feet northwardly measured in a radial direction from the center line of the Baltimore and Ohio Railroad; thence by said dividing line between great lot 3 and great lot 6- and by lands of the Carnegie Steel Company S. 3° 48' W. 103.22 feet, more or less to a point distant 100 feet northwardly in a radial direction from the aforesaid center line of the Baltimore and Ohio Railroad; thence parallel with said center line and 100 feet distant radially therefrom in a southwesterly direction by a curve to the left with a radius of 2010.08 feet for a distance of 848.88 feet to a point of tangent; thence still parallel with and 100 feet distant from the center line of the Baltimore and Ohio Railroad S. 54° 58' W. 209.52 feet to a point on the north-easterly side of the highway approach to the Niles-McDonald Bridge over the Mahoning River; thence by the northeasterly side of said highway approach N. 49° 22' W. 103.21 feet to a point on the line of lands of Carnegie Steel Company and distant 200 feet northwestwardly at right angles from the center line aforesaid of the Baltimore and Ohio Railroad; Thence by said lands of the Carnegie Steel Company and parallel with said center line of the Baltimore and Ohio Railroad N. 54° 58' E. 235.08 feet to a point; thence still by same and still parallel with said center line of the Baltimore and Ohio Railroad Northeastwardly by a curye to the right with a radius of 2110.08 feet for a distance of 917.23 feet to the place of beginning.”

It might be surmised that possibly the courses in the description of the proposed Village of Hillcrest, which the author thereof was attempting to follow in reverse, are intended to be the northerly courses of the above description. Notice how this accurate description first ties the beginning and ending of its courses with known objects and readily located properties. Also note that the curved courses in each instance in addition to being located and guided as parallel with known curves, are properly described as being curves “to the right” or “to the left.” Comparing this accurate method of describing such courses it is more readily seen how inaccurate and uncertain is the description of this portion of the boundaries of the proposed Village of Hillcrest.

In the case of State, ex rel. v. Trustees, supra, it was determined that it was proper for the incorporators to correct an obvious error in the description before the Trustees had acted on the petition. It was held that correction of that particular error (change of the figure 5 to the letter S in the expression 5.54°) did not prejudice the incorporators or render their procedings void. At the time of that hearing although “inaccuracy” was then claimed no explanation was made of the inaccuracy of the courses above set forth and no evidence was presented to illustrate or clarify these deficiencies. This Court, which likewise heard that case, was not instructed at that time in the mysteries of such curves and arcs nor taught the requirements of accurate description in this particular. And this Court must admit that the inaccuracy of this part of the description was then overlooked. Any claim of res adjudicata, however, cannot be sustained because the present case is not between the same parties. Only one of the then parties appears in one of the present cases in the person of Carmen Di Cristafaro, who at that time appeared in the character of one of the Board of Trustees of Weathersfield Township, and who here appears in case No. 63427 as an individual owner of property affected by the proposed incorporation. That no inaccuracy was shown in that previous hearing is not believed to bar the Court from recognizing the inaccuracy at this hearing.

While the word “accurate” does not permit of comparative degrees, such as “accurate” “more accurate” and “most accurate,” the Statute ÍS707.14 R. C.) defines the extent of an inaccuracy sufficient to weigh upon the Court’s decision as follows: “If the boundaries are found to be so inaccurately described as to render indefinite or uncertain the limits or extent of the proposed Municipal Corporation.” One might suppose, or arbitrarily determine, that the proponents of this corporation intended to describe certain points and locations, but they did not do so. Nor does the use of the term “accurate” in the Statute authorize the Court to speculate as to the intention of the proponents, or to determine where those indefinite points and inaccurate boundaries should be.

Limits unreasonably Large or Small

There are Municipal Corporations in Trumbull County some larger and some smaller than the proposed Village of Hillcrest. Speculation as to how the finances of a city may be handled, or how inadequate may be the income of a Village, should not in itself determine the right to incorporate. The officers of many small Villages are often inadequately compensated, if at all. To be successful doubtless the area of a corporation should be cohesive, but it may include both platted and unplatted land, whether residential, commercial or industrial. Farm land is never necessarily benefitted by being included, except that its potential value may be increased by the hope that some day it may be required for residence purposes. Nor that some of the inhabitants were, and still may be, opposed to incorporation cannot prevent its accomplishment— the Legislature having decreed that where application is made to Township Trustees the election determines this question. Secs. 707.17, 707.18 E. C. It is unfortunate that the promoters may draw the boundaries to include some lands which may be unnecessary to the proposed Village, but a Court cannot interfere unless the size is unreasonably large or small, which to this Court does not seem here apparent.

Views of Ohio Trial Court Judges on these subjects are contained in the following cases.

Brook Park v. Cleveland, 26 O. O. 536; Libby v. Paul, 17 N. P. N. S. 433; Shipbaugh v. Kimball, 7 N. P. N. S. 514; Hall v. Siegrist, 13 O. D., 46.

Eight, Just or Equitable

The outstanding fact in this proceedings is the extremely great value for taxation purposes of the Ohio Edison property compared with the taxable value of the remainder of the property within the proposed Village. The values on the 1953 tax duplicate, the last one in effect at the time of hearing of this case, were;

Ohio Edison property: $5,831,790.00

all other property: 772,588.00

Testimony was offered that the Ohio Edison Company expected to expend $15,000,000.00 in construction work before completion of its Plant and that its tax value will be greatly increased from the above figure upon completion. It is also estimated that the Ohio Edison Company property will be called upon to pay as high as 95% of the tax revenues of the proposed Village.

This testimony was not refuted. Citizens of the proposed Village testified that they expected revenue from the Ohio Edison Plant would pave their streets, build their sidewalks, supply sewers, street lights and all needed improvements for their Village, and they freely echoed the Secretary of the McDonald Heights Improvement Club in her testimony that it “would be impossible to incorporate if the Ohio Edison and the Baltimore and Ohio (Railroad) property were excluded.” A relatively small number of people expect here, to acquire their local improvements, and support their Municipality by taxation of this comparatively large taxable Ohio Edison property.

The following specific objections are raised by the Plaintiffs to this new proposed Municipal Corporation: (a) Plaintiffs who pay taxes in Weathersfield Township state that their Township will be deprived of substantial tax revenue now received by it from this territory which the County Tax Commission will be obligated to award to the new Municipality for the benefit of the comparatively few Villagers of Hillcrest.

(b) Plaintiffs whose children attend Weathersfield Township schools and who pay taxes in Weathersfield Township School District, a portion of which is included within the proposed boundaries, object to the loss of Ohio Edison revenue from their school district.

(c) Plaintiffs from Niles City School District, in the boundaries of which the land on which the Ohio Edison plant is being constructed has been included since before 1900, are haunted by the fear that their District will ultimately lose the revenues from those lands These increasing revenues have been a great help in the struggle which the Niles City School District, together with all other school districts, are having to maintain the high standards of their schools and meet their expenses.

(d) The Ohio Edison Company itself feels that it owes no obligation to support or maintain the residents of Hillcrest Village.

(a) With reference to Weathersfield Township’s loss of tax revenues, the mere disarrangement of tax revenue is not a ground for prevention of the incorporation of new Municipalities. If this were a valid objection, probably no new Municipalities could ever be formed. To be deprived of revenue relied upon by Township Officials may disrupt township business, but the claim of a new Municipality is that it will take care of its own needs, which thus relieves the Township of their expenses. And this is so, even though the Township Trustees may feel that they have offered to do all in their power to construct improvements which could be secured through assessment on abutting property, a method of payment not acceptable to Hillcrest inhabitants.

(b) and (c) with regard to revenues of the Weathersfield Township, and the Niles City, School Districts, it is shown that these established districts serve practically all of Weathersfield Township, a generally thickly populated territory covering an area of nearly twenty-five square miles. Whereas the sparsely settled territory of proposed Hillcrest is only about one square mile. The platted portion of Hillcrest already is a part of McDonald Village School District. The comparative taxable values of these Districts are:

Pupils

Taxable Valuation per pupil

McDonald Village (includes McDonald and

the platted portion of Hillcrest) 633 $24,000.00

Niles City 3000 16,000.00

Weathersfield Township (includes farming lands

of Hillcrest) 704 13,700.00

Were the valuable Ohio Edison property to be transferred to McDonald Village School District, the taxable valuation per pupil in that comparatively small district would be increased to approximately $40,-000.00 per pupil, with corresponding reduction of per-pupil-valuation in Niles City and Weathersfield Township Districts.

It is pointed out that the mere incorporation of a new Village does not of itself alter or change the boundaries of existing school districts. Former §4687 GC, which created a new Village School District with the incorporation of each new Municipality, was repealed in 1943, and no new similar provision was ever enacted in its place. The Township District boundaries and those of McDonald Village District would remain the same until, or unless, altered by the Trumbull County Board of Education which has jurisdiction over these districts. The Niles City District is not subject to be changed by the County Board, and could be altered only by annexation of Hillcrest Village to another City or Village (§3311.06 R. C.). Since this is not an annexation proceedings, nor has there yet been any action of the County Board, nothing in this incorporation proceedings could alter these district boundaries. The Niles City School District, especially, and all other Plaintiffs fear that annexation is Hillcrest’s next stop, possibly because the promoters of the corporation had first attempted to annex this territory to McDonald, and immediately upon the refusal of the Trumbull County Commissioners to approve such annexation, had filed their petition for incorporation of the same territory with the township Trustees in this case, and because someone of the McDonald Heights Improvement Club at a meeting about that time had suggested, or advised, to let annexation wait until after incorporation was secured.

Their fears seem to be strengthened by an inference drawn, rightfully or wrongfully, from a letter written by Ohio Edison Company in answer to a suggestion apparently made by the proponents of annexation, which letter appears as Defendant’s Ex. E. as follows:

“Dear Mr. This is in answer to your letter of March 20th., addressed to Mr. H. A. Stoddard regarding a proposed annexation to the Village of McDonald and to report that the officials of our company feel that, for the sake of obtaining a reduction in taxes, the company should neither oppose nor assist in the promotion of any annexation or other procedure which would result in a change in taxing district boundaries.

“I feel sure that you will agree that our company, being a public utility serving the entire community, cannot very well do otherwise than take a neutral position with respect to the proposed annexation at McDonald.

Yours very truly”

The inference from this letter is that “bait” was offered the Ohio Edison in the form of lower taxes, if the Ohio Edison Company would agree to annexation to McDonald Village. A territory comprised of the present Village of McDonald and the proposed Village of Hillcrest, including the extremely valuable properties of the Carnegie Steel Company and the Ohio Edison Company, with the few inhabitants and comparatively small municipal expense, should have a very low tax rate and no serious prospects ever of any large increase. Such a prospect would be very tempting to anyone, and especially to large corporations with valuable property subject to local taxes.

Such possibility and steps to accomplish it are not in themselves unlawful. The inference above suggested may have no basis in fact. The feared annexation may never occur. The possibility, however, gives pause for thought. It does raise a question of whether it is equitable or wise that the allocation of such a valuable taxable property as that of the Ohio Edison Company should be placed in the hands of the comparatively few (283 voted for incorporation, 34 against) inhabitants of the proposed Hillcrest Village.

(d) The Ohio Edison Company objects to this incorporation for the, reason that it owes no debt to the Hillcrest Villagers, has not been helped or aided by them, and thinks it should not be taxed necessarily for this grasping Village’s benefit.

The land on which their plant is constructed is separated from former Plats A, B, and C, by the right-of-way of the Baltimore and Ohio Railroad which is elevated by solid fill above the bordering lands. No road or passageway from Ohio Edison to other portions of Hillcrest exist within the Village limits. To reach the Ohio Edison, Hillcrest Villagers must travel a township road outside the Village.

No resident of the Village works for Ohio Edison. Hillcrest furnishes nothing to Ohio Edison, neither water, sewers, telephone, disposition of waste, fire protection, police protection, passage to the outer world, shopping center, or recreation facilities. Nor does it hold out promise of ever furnishing anything, except as such facilities may be acquired, or built, or developed by the tax-revenues to be secured from Ohio Edison.

Ohio Edison has attracted no persons of Hillcrest to settle near its plant, nor have the present inhabitants been attracted to invest their money on account of its presence or its employment possibilities. Nor has the plight of the Villagers been brought about or aggravated in any manner by Ohio Edison’s locating near them.

Ohio Edison suggests that if it is beholden to anyone, it is to Niles City, which furnishes its water, its fire protection, its police protection, space for its disposal of waste, access to the outer-world, substantial market for its product not only by Industry, but for home use as well.

Ohio Edison is a corporation. It has no voice or vote in the incorporation of the territory which it occupies, nor in annexation of that territory to a city or Village should surrounding inhabitants seek such an annexation. It cannot benefit from the schools to which it contributes its taxes. It contributes only the valuable real estate with buildings, machinery, and personal property to be taxed for the benefit of surrounding political subdivisions. Its own desires are of no moment. It must expect to be taxed, and the legal imposition of additional taxes constitutes no valid objection to incorporation of the proposed Village. It might be likened to a gold mine subject to exploitation taxwise by the general public, as far as this case is concerned.

What is the duty of the Court in determining what is “right, just and equitable?”

The original action of the Ohio Legislature on the subject of incorporation of Villages, passed May 3rd, 1852 (50 O. L. 223), and which in the revision of 1878 became §1564 R. C. provided:

“The Court or Judge shall hear the petition (praying for injunction) in a summary manner and may hear evidence, and if no error is found in the proceedings and no inaccuracy in the boundaries, the petition shall be dismissed * * *. But if error is found in the proceedings or the boundaries are so inaccurately described as to render indefinite and uncertain the limits or extent of the proposed corporation, then the Court shall make an order enjoining the recorder,” etc.

Originally also the commissioners were required (§1558 R. S.) to determine whether the proposed corporation “shall be deemed right and proper”. (66 O. L. 151 No. 14.)

Under this form of the Statutes the case of Hulbert v. Mason, 29 Oh St 562, was carried to the Supreme Court (1876) and it was decided that the “Application (to the Court) is not in the nature of a bill in equity or of a civil action, but of a proceedings in error,” (from the action of the County Commissioners). In that case the determination of what is “right and proper” respecting incorporation had been submitted to the “discretion of the Commissioners” and the Court’s jurisdiction was held to authorize only a review of errors or irregularities in the proceedings before the Commissioners.

Since that date the Statutes have been amended and the jurisdiction of the Common Pleas Court has been changed from that of a “summary” inquiry where the Court “may hear evidence,” to a full-fledged trial wherein the Court itself is authorized to determine whether “it is right, just and equitable that the prayer of the petition (for incorporation) be granted.” (Secs. 707.11, 707.14 R. C.) The Legislature has greatly enlarged the jurisdiction of the Court. Its power now is greater than the simple “discretion” of the Commissioners.

“Under §3535 GC (§707.14 R. C.) as it now exists, the injunction proceedings * * * presents certain issues that we commonly describe as judicial. The function of the Court * * *is to try the issues * * * and to administer justice according to the evidence.” The Geauga Lake Improvement Ass’n v. Lozzier, 125 Oh St 565 at p. 574.

The terms “right” and “just” bear the connotation of lawful, but the term “equitable” adds the element of “fairness.” 15 Words and Phrases, pp. 4, 132-3. “Equitable” has reference to the extensive equitable jurisdiction of Courts of Equity, which were originally established to ameliorate the hard and rigid rules of the Courts of Law, and, as stated in Pomeroy’s Equity Jurisprudence, 5th Ed. (Introductory Chapter, No. 67, pp. 89-90 summarizing the Nature of Equity.)

“consists of those doctrines and rules, primary and remedial rights and remedies, which the common law, by reason of its fixed methods and remedial system, was either unable or inadequate, in the regular course of its development, to establish, enforce, and confer, and which it therefore either tacitly omitted or openly rejected”

“Its great underlying principals, * * are unquestionably principals of right, justice, and morality, so far as the same can become elements of a positive human jurisprudence; and these principals being once incorporated into the system, and being essentially unlimited, have communicated their own vitality and power of adaptation to the entire branch of the national jurisprudence of which they are, so to speak, the substructure.”

See also, Wagner v. Armstrong, 93 Oh St 443, Opinion by Nichols, C. J. at pp. 454-457, and Packing Company v. State, 100 Oh St 285, concurring Opinion by Wanamaker, J. at pp. 302-304.

Considering the prayer for incorporation from an equitable standpoint it appears unfair for the inhabitants of any territory to arrange their limits so that 95% of their tax burdens will be thrown upon a new-coming industry to their vicinity. Had such industry grown up in their midst, waxed rich with their help or prospered by reason of their contributions, justification of inclusion upon their tax-duplicate of its value might be more evident.

It appears, therefore, to the Court, in accordance with the well-established maxim that “Equity delights in equality,” that it is inequitable to permit a small number of people who have no connection with this large and valuable industry to monopolize the tax revenues thereof for the sole purpose of building and improving the streets and conveniences of their individual properties, or providing the local expense of tfieir small village.

Nor is it equitable for such a small segment of the population to be granted control over, and the power to allocate for taxation purposes, such valuable taxable territory solely for their own benefit.

For the reasons above set forth the Court finds both (1) that the boundaries above referred to are so inaccurately described as to render indefinite and uncertain the limits or extent of the proposed corporation, and (2) that it is not right, just or equitable, that the prayer of the petition, presented to the Board of Township Trustees, for the incorporation of the proposed Hillcrest Village be granted. It is therefore, ordered, that the County Recorder be enjoined from making and/or certifying the record of such proceedings.

The County Recorder should not be required to pay the costs of this proceedings, nor should Trumbull County bear this expense. Rightfully the promotors of the unsuccessful incorporation should pay the costs herein but they are merely nominal parties to these proceedings. Each party will, therefore, be required to pay his or its own costs.

Bond for appeal, if desired, will be fixed at $300.00. An entry may be prepared accordingly.


author: By PHILLIPS. .1.

text:
    WARNER, Plaintiff-Appellant, v. INTERSTATE THEATRES, INC. et, Defendants-Appellees.
    Ohio Appeals, Seventh District, Belmont County.
    No. 881.
    Decided December 24, 1952.

      Esther P. Pinsky, Bellaire, Thornburg & Lewis, St. Clairsville, for plaintiff-appellant.
    Kinder, Kinder & Kinder, Martins Perry, for defendants-appellees.
   OPINION

By PHILLIPS. .1.

Plaintiff appealed on questions of law from a judgment of the court of common pleas entered upon a verdict of the jury directed for defendant at the close of all the evidence.

Plaintiff maintains that the “issues” are:—

“1. Whether or not the lower court erred in overruling the plaintiff-appellant’s motion for a view of the premises?
“2. Whether or not the lower court erred in sustaining the defendantappellee’s motion for a directed verdict at the close of all the evidence?
“3. Whether or not the lower court erred in refusing to submit the case to the jury at the close of all the evidence?
“4. Whether or not the lower court erred in holding that the doctrine of res ipsa loquitur was not applicable in the case?”

There is evidence that plaintiff was a patron, but not as alleged a paid patron, of defendants’ theatre about seven o’clock on the night of January 15, 1949; that she entered a toilet room in the ladies lounge through one of a pair of swinging doors, which weighed 29 pounds; that later as she used the same door to leave such toilet room it fell striking and injuring her; that within the six month period preceding January 15, 1949, state inspectors had inspected, and forty-five minutes before opening its theatre at 12:45 p. m. on that date defendant had inspected it and found no defect in such door.

There is no evidence that defendants failed to exercise ordinary care toward plaintiff while a patron of its theatre; that its inspection on the day in question was faulty, nor was a proximate cause of plaintiff’s alleged injury; nor that such door was under defendants’ exclusive control on that date.

There is evidence that approximately seven hundred patrons of such theatre were free to, and some of them did, use it on January 15, 1949.

“A view of the premises is controlled by §11420-2 GC. This statute is not mandatory. The trial court is invested with a discretion to determine whether a view of the premises shall be allowed.” Maggart v. Deaton, 84 Oh Ap 327 at 329.

It is not argued that the trial judge abused his discretion in overruling plaintiff’s motion to allow a view of the premises, and since the trial judge was under no mandatory duty to sustain such motion the trial judge did not err to plaintiff’s prejudice in overruling that motion.

Since there is no evidence that the door which allegedly injured plaintiff was in disrepair, nor that it was not inspected, nor was faultily inspected, we believe that reasonable minds could reach no conclusion other than that defendants exercised the required degree of care toward plaintiff; that no question of defendants’ negligence was presented for the consideration of the jury, and that accordingly the trial judge did not err to plaintiff’s prejudice in failing to submit the case to the jury and in directing a verdict for the defendant at the close of all the evidence.

In nonsuiting plaintiff in the case of Olson v. Whitthorne & Swan, 263 Pacific 518, in which plaintiff was injured using a door, and discussing the doctrine of res ipsa loquitur the court said in the opinion written in that case:—

“To render the doctrine applicable ‘it must be shown that the instrumentality causing the injury was under the control of the defendant, and that the injury was caused by some act incident to that control,’ and the injury ‘must be of such a nature that it ordinarily would not have occurred but for the defendant’s negligence.’ It does not apply ‘where an unexplained accident might have been caused by plaintiff’s negligence, or been due to one of several causes, for some of which the defendant is not responsible.’ * * * The operation of such doors is not within the exclusive control of the owner of the building or proprietor of the store. Customers and patrons take a very distinct part in their operation and are chargeable with the exercise of ordinary care in their use. Injury may occur in their operation from a lack of such care on the part of the persons who use them, and for whose negligence the owner or proprietor would be in no wise responsible.”
“The true reason is found in the rule itself, in that the act complained of, or, the thing, speaks for itself. It is therefore not the matter of the defendant’s ability to speak, but the fact that the act itself speaks.” Weller, Exrx., v. Worstall, 50 Oh Ap 11 at 17.

For a discussion of the application of the doctrine of res ispa loquitur see Saldukas v. McKerns, 16 Atl. (2nd) 30; Pardington v. Abraham, et al, 87 N. Y. Supp. 670; Trostel, et al v. Reading Steel Products Corp., 31 Atl. (2nd) 909; Palmer v. Brooks, 169 S. W. (2nd) 906; Boston & Main Railroad v. Jesionowski, 154 Fed. (2nd) 703; Smith v. Johns, 106 N. E. 604; Gardner v. Seymour, et ux., 180 Pac. (2nd) 564; Class v. Young Women’s Christian Assn., 47 Appeals 128; Sherlock v. The Strouss-Hirshberg Co., 132 Oh St 35; Glowacki v. The North Western Ohio Ry. & Power Co., 116 Oh St 451; Walker v. The Toledo Hotel Co., 59 Oh Ap 229; and Cochran v. Pittsburgh & L. E. R. Co., 31 Fed. (2nd) 769.

The trial judge did not err to plaintiff’s prejudice “in holding that the doctrine of res ipsa loquitur was not applicable” in her case, nor in any of the other respects urged by her.

The judgment of the court of common pleas is affirmed.

GRIFFITH, J, concurs.