author: By BIRRELL, J.

text:
    ORANGEVILLE (Village), Plaintiff, v. POWELL et, Defendants.
    Common Pleas Court, Trumbull County.
    No. 62655.
    Decided April 22, 1954.
    Luchette & Hoffman, by Luchette, City Solicitor, Masury, for plaintiff.
    George Lewis, Warren, for defendant Emma Powell.
   OPINION

By BIRRELL, J.

This case comes before the Court on the request of the Village of Orangeville that the Court make an Order requiring the Defendants to remove certain structures and obstructions which they have placed and now own and maintain upon one of the public highways in said Village of Orangeville.

The Defendants, while admitting the existence of the public highway, claim that the street mentioned by the Village was long-ago abandoned by the Village, and that the Defendant Emma Powell

“improved said so-called street, fenced it in, and built buildings on it, and has ever since occupied and possessed as her own.”

And this Defendant claims that she and her predecessor in title have openly, notoriously, adversely and continuously held and occupied said land in question for more than twenty-one years, and have excluded therefrom every one other than those having business with her and her predecessors in title; and that by reason of same she is the owner, and has acquired title thereto by adverse possession.

The difficulty with the claim of the Defendant is that the evidence does not indicate that she has adversely held the property for more than twenty-one years to the exclusion of other persons. Defendant admits that other persons have made use of portions of the so-called street, both m going to the Pymatuning River, and in going to a barber shop which formerly existed on the west side of said street. It is admitted that such traffic was by foot travel, since the street had grown up to bushes and was impassible for vehicles. Defendant admits that never had she fenced in the street, but had merely attempted to tell persons whom she did not wish to travel on the street that she claimed possession thereof.

Likewise it is admitted that the construction of buildings on her part upon the street has all been done since approximately the year 1938 so that the exclusive occupancy by any of her buildings has not existed for the required period of time, nor has any building been sufficient in size to exclusively occupy the street in such a manner as to prevent foot travel from passing up and down.

Nor is this Defendant sustained by the law in her claim of adverse possession to this street. Sec. 2305.05 R. C. (formerly §11220 GC), on which Defendant relies, provides that

“if a street * * * has not been open to the public use * * * and has been enclosed with a fence by the owner * * * and has remainder in the open, uninterrupted use, adverse possession and occupancy of such owner for the period of twenty-one years * * * the public easement therein shall be extinguished * * * and the right of such City * * * to use, control or occupy so much * * * as has been fenced * * * shall be barred * * *” etc.

The absolute requirement that the street must have been fenced and remain in the possession of the original proprietors has not been complied with here, and therefore this Statute is ineffective in the Defendant’s behalf. Byerlyte Corporation v. City of Cleveland, 32 Abs 609. The cases of Joseph v. City of Akron, 19 Oh Ap 412 and Simpson v. Village of Johnston, 9 Oh Ap 102; 29 O. C. A. 219 cited by Defendant, depend upon the provisions of §12220 GC and are therefore not here in point.

Likewise the present law on the subject of adverse possession of public highways is to the effect that

“no lapse of time will bar the public authorities in an action to recover the possession of lands belonging to a public highway or street, or to compel the removal therefrom of obstructions placed therein, however long they may have been maintained and whether the character may be solid and permanent or temporary and frail, and this rule will be applied to highways, streets or roads, whether in Municipality, Counties, Township or the State.” 1 O. Jur. 2nd, p. 769, Sec. 88 note 17. See also Herman v. Spitzmiller, 24 C. C. N. S. 20.

The Village of Orangeville has the right and the power to require the removal of the buildings constructed within the limit of the street as public nuisances. 1 O. Jur. 2nd, page 770-771, See. 89-90.

Defendants Robert Gregory and Anita V. Gregory failed to plead or appear and testify. Since Emma Powell had no title which she could convey to them, they have no claim of any kind in the street.

The prayer of Plaintiff’s Petition must be granted and an Entry may be drawn for that purpose. Doubtless the Village of Orangevile will be generous in permitting sufficient time for these Defendants to remove buildings, if desired, from this street.


source: Caselaw Access Project

author: By STEVENS, PJ.:

license: Public Domain

text:
    O’NEIL, Appellee, v. SEE BEE CLUB, Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22975.
    Decided March 10, 1954.

      Krewson & Williams, Cleveland, for appellee.
    Crossen & Chamberlain, Cleveland, for appellant.
    (STEVENS, J, HUNSICKER, J, of the 9th District: COLLIER, J, of the 4th District, sitting by designation in the 8th District.)
   OPINION

By STEVENS, PJ.:

This is an appeal on questions of law from a judgment for plaintiff below (appellee in this court) in the amount of $550, because of personal injuries sustained by him.

The facts follow.

Plaintiff was, on July 30, 1952, a member in good standing of the defendant club, an unincorporated association. On said evening, plaintiff, his wife, and another couple, drove to the Sea Bee Club parking ground. Upon arrival, plaintiff, his wife, and the driver’s wife, left the automobile at the entrance to said parking ground, and the driver proceeded to park the car as directed by a parking attendant. Plaintiff paid the parking fee of 50c, which was charged alike to members of defendant club, and to the public.

Thereafter, the four persons mentioned attended the Cleveland Indians baseball game at the stadium, leaving the ball park about midnight.

On their return, they entered the defendant club, where they had some refreshments. At about 1 a. m., they left the club to go to the host’s car; the host, knowing its location, leading the way. The evidence justifies the conclusion that the parking lot was very dark.

The driver and the two women entered the car, a two-door sedan, from the driver’s side; the plaintiff assisted the women into the car, walked to the rear of the car, around its rear, and started forward to the right door, when he stepped into an unseen window well, the existence of which was unknown to plaintiff, and sustained the injuries of which he complains.

Three errors are assigned.

1. Refusal of the court to charge as requested by defendant.

2. That plaintiff was guilty of contributory negligence as a matter of law.

3. That plaintiff, being a member of the defendant club, cannot, as a matter of law, maintain an action for damages against said club.

As to the first assignment of error, the appellant says that, after the giving of the general charge to the jury, it requested the court to additionally charge as follows:

“If you find that Mr. O’Neil was negligent and that his negligence contributed in the slightest degree to the proximate cause of this accident, then your verdict must be for the defendant.”

That request was overruled.

In the general charge the court had stated:

“* * * if you find that this accident was caused by any act of negligence on the part of the plaintiff which proximateiy contributed to this accident, then you will find for the defendant.”

Proximate cause had been defined as “that cause without which the accident would not have happened.”

The charge of the court on contributory negligence and proximate cause was such that it included the requested amplification. The words “if you find that this accident was caused by any act of negligence on the part of the plaintiff which proximateiy contributed * * *” (emphasis ours), contemplates and includes negligence of plaintiff which contributed to his injury in the slightest degree.

We find no. reversible error as to assignment No. 1.

We have read the complete record in this case, as well as all of the cases cited in appellant’s brief relating to contributory negligence as a matter of law.

It is our conclusion that the facts, here presented, were such as amply justified the trial court in submitting to the jury the question of the contributory negligence of the plaintiff, and the jury’s conclusion thereon we do not find to be manifestly against the weight of the evidence.

The third assignment of error asserts that one. who is a member of a social club cannot successfully maintain an actipn for damages for personal injuries against the club.

The evidence herein shows that Frank M. Sexton and Grace M. Sexton were conducting the Sea Bee Club; that the club was a voluntary unincorporated association not for profit; that plaintiff was a member of said club; and that his action was for the recovery of damages from said club for personal injuries allegedly sustained by him on the premises of the club, because of the claimed negligence of the defendant club.

We are unanimously of the opinion that the decision in the case of Koogler et al Trustees v. Koogler, 127 Oh St 57, precludes this plaintiff, as a member of the See Bee Club from maintaining this action against said club.

The motions of defendant below (appellant in this court) for a directed verdict, made at the conclusion of plaintiff’s case, and at the conclusion of all the evidence, should have been sustained, as also should the motion for judgment notwithstanding the verdict. In its refusal to so rule, the trial court prejudicially erred.

The judgment is reversed, as being contrary to law, and this court will enter the final judgment for appellant which the trial court should have entered.

Reversed and judgment for appellant.

HUNSICKER, J, COLLIER, J, concur.


author: By SKEEL, PJ.:

text:
    STATE, ex rel. WALTZ & PEMCO, INC., Relators, v. INDEPENDENCE (Village), Respondents.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22658.
    Decided September 8, 1952.
    Henry H. Pleasant, Cleveland, for relators.
    Harry C. Gahn, Cleveland, for respondents.
   OPINION

By SKEEL, PJ.:

This is an original action in mandamus. The relators by their petition seek an order directing the respondent, Frank W. Goudy, Inspector of Buildings of the Village of Independence, to issue a building permit to authorize the construction of an industrial building on land located at 5536 Brecksville Roard in said village.

The relators allege in their petition that Perneo, Inc., a corporation, entered into a contract to purchase the property described therein from relator, Harold A. Waltz, on June 24, 1952. The evidence, however, shows that the purchase agreement was signed on May 19, 1952 and the transaction was put into escrow with an escrow agent on June 24, 1952.

The relators set forth Section 22-A of the Building Code of the Village which in substance requires the issuing of a building permit to an owner or his agent before beginning the construction of a building' upon property in the village and spells out the manner in which the application should be made. It is further alleged that on the fifth day of August, 1952, Perneo, Inc. made application for a permit to build an industrial building on the above-described property, that said application was in conformity with all the requirements of the building code and that the proper fee was presented with the application. It is also alleged that the character of the building to be built was in full accord with the zoning ordinance then in force and that there was no lawful reason why the building permit should be withheld. It is then alleged that the respondents refused to issue the permit. A writ of mandamus is prayed for directing the granting of relators’ application.

The answer of the respondents sets forth that they are without knowledge as to the purchase of the property as alleged in the relators’ petition and say that the escrow instructions provide that if the territory in which the property described in relators’ petition is rezoned withdrawing it from use for industrial purposes, the “escrow agreement shall be null and void and each party restored to its original position” * * *. The respondents admit the substance of Section 22-A of the Building Code of the Village as pleaded by relators and admit that relators filed an application for a permit to erect a new structure on said property and that said application was refused. The answer then contains a general denial. The respondents further state by way of defense that the building code of said village authorizes the building inspector to enforce its provisions; that Section 22-A provides that the owner of property or his agent must secure a building permit from the building inspector of the village before proceeding with the construction of a building; that Perneo, Inc. was not on August 6th, the owner or agent of the owner of said property which was in fact owned by the relator, Harold W. Waltz; that the building inspector refused the permit because Pemco, Inc. was not the owner or agent of the owner of said property and further because there is now pending before the council of said village an ordinance which was filed and introduced July 22, 1952, to rezone the territory of which the property described in relators’ petition is a part as a U 2 district for the construction of two-family houses, thereby withdrawing such territory from the U 5 and 6 district. The answer of the respondents further alleges that the parcel of land on which the relators propose to build a factory is on the southwest corner of the territory which it is proposed to rezone and has never been developed ' as an industrial district and relators’ request for a permit to build an industrial building thereon was not filed until the rezoning thereof “was in the offing.” The other allegations of the answer are not material to the question here presented.

It was admitted upon the trial that the property here in question, under the ordinance of November 24, 1925 which was in effect at the time relators filed application for a building permit was in the U 5 and 6 district which is for commercial and industrial use as shown by respondents’ zoning map attached to their answer, that by the ordinance introduced July 22, 1952, it is proposed to rezone a triangular tract of land on the east side of Brecksville Road running south from what is now known as the willow traffic circle about 2,600 feet along the east side of Brecksville Road, then proceeding east about 1,600 feet to the B & O Railroad right of way, then north along the B & O right of way about 3,000 feet to the traffic circle. The map shows that the property south of this triangle is zoned for U 2 use, that is, for two-family residences. The triangular parcel which it is proposed to rezone projects for its entire length into the U 5 and 6 district.

The Planning Commission of the Village to whom the ordinance was referred after being introduced, reported that if this territory was to be rezoned, it should be either for single residences or otherwise the zoning should not be changed. The basis of this report was on the cost to the village of servicing two-family houses.

The uncontradicted, evidence was also to the effect that Pemco, Inc. made its application for a permit on August 6th; that it had entered into a purchase agreement for the property on May 19, 1952; that the transaction went into escrow' on June 24th, both the deed and the purchase price being then deposited with the escrow agent and that the proposed rezoning ordinance was not filed until July 22, 1952 and that a public hearing will not be had thereon before the Village Council until September 23, 1952.

The claim of respondents that the purchase was conditioned upon the securing of a permit to build is not supported by any evidence. The relator, Harold A. Waltz, testified that when he learned of the refusal of the Village to issue a permit, he then directly appointed Pemco, Inc. his agent and ratified all that had been done previously as being done in his name in an attempt to secure such permit.

■ We must conclude from the admissions contained in the pleadings and the uncontradicted evidence that Pemco. Inc. had sufficient equitable interest in the property as owner by reason of its purchase agreement to authorize it to make application for a building permit under the provisions of the Building Code of the Village of Independence and also, that Pemco, Inc. was authorized by the seller, the holder of the legal title, to make application for such building permit as his agent and as such, Pemco, Inc. was one clearly authorized to apply for a building permit for construction of a building on the property here in question under the terms of the said building code.

Carson, et al v. Board of Appeals of Lexington, 321 Mass. 649.

We further conclude that under the law of this state, a municipal corporation may not refuse to issue a building permit for the construction of a building within a zoning district of the village when the character of the proposed building comes within the requirements of the zoning ordinance of the village in force on the date of the application for such district, because it is proposed by ordinance intro-ducted just before the application for such building permit was filed to rezone the district in which the property is located under higher restrictions.

State, ex rel. The Fairmount Center Co. v. Arnold, 138 Oh St 259.

For the foregoing reasons, a writ of mandamus is ordered as prayed for. Exceptions. O. S. J.

HURD, J, THOMPSON, J, concur.


author: By THE COURT.

text:
    STINSON, Plaintiff-Appellant, v. COLUMBUS & CHICAGO MOTOR FREIGHT, INC., Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 4810.
    Decided October 6, 1952.
    Clifford L. Rose, Columbus, for plaintiff-appellant.
    Collis Gundy Lane, Richard Huggard, Columbus, for defendant-appellee.
   OPINION

By THE COURT.

This is an appeal on questions of law from a judgment rendered in favor of the defendant by the Municipal Court of Columbus.

The action grew out of a collision between a cab operated by plaintiff’s employee and a truck operated by defendant’s employee, at an intersection of driveways on private property known as Lane Shopping Center. The matter was tried to the Court which rendered a separate findings of fact and conclusions of law.

Plaintiff-appellant assigns as error that the judgment is not sustained by sufficient evidence, that the judgment is contrary to the manifest weight of the evidence and contrary to law. After an examination of the record we are satisfied that there is evidence of sufficient probative value to sustain the findings of fact.

Appellant contends that the Court applied the statutory right-of-way provision in denying the plaintiff a right of recovery. Clearly, the collision having occurred on private property, the statutory right-of-way provision has no application. (Secs. 6307-2 and 6307-40 GC.) The operators of the two motor vehicles were controlled by the common law rule which required them to exercise ordinary care to avoid a collision. See State of Ohio v. Root, 132 Oh St 229; Glaser v. Dunlap, 52 Abs 296; Joseph v. Larkworthy, 15 N. P. (N. S.) 561. While we have some difficulty in determining which principle of law was applied by the trial court, we arrive at the same conclusion, by reason of the absence of a showing of the want of ordinary care on the part of the defendant. The separate findings are susceptible of the interpretation that the trial court decided the case on the theory that the plaintiff was guilty of negligence. If this be the theory, there is evidence to support it and the law was correctly applied in rendering judgment for the defendant.

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

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


author: Per CURIAM:

text:
    WEHNER, Estate of, In re: WACHUTA, Admrx., Plaintiff-Appellant, v. FIORELLI et, Defendants-Appellees.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22900.
    Decided July 6, 1953.
    H. H. Felsman, Cleveland, for plaintiff-appellant.
    Alan Meltzer, Cleveland, for defendants-appellees.
   OPINION

Per CURIAM:

This appeal comes to this court on questions of law from an order of the Probate Court removing the appellant as administratrix of the estate of Edward O. Wehner, deceased, and appointing the appellee whom the probate court found to be an adopted son of the deceased, as such administrator.

Prior to the trial of the motion seeking the removal of the appellant (who is a sister of the deceased) as administratrix of the said estate, a petition to determine heirship was filed in the common pleas court. It is the contention of appellant that the probate court should have withheld the action on the motion to remove appellant as administratrix until the common pleas court had determined who the heirs of the decedent were.

There is no doubt but that both the common pleas court and the probate court are each vested with jurisdiction to determine heirship and that the court which first acquires jurisdiction for that purpose has the exclusive right to determine such issue. Kane v. Kane, 146 Oh St 686.

The probate court is vested with exclusive jurisdiction in .the management of the administration of estates of deceased persons. The motion to remove the appellant as administratrix comes clearly within such exclusive jurisdiction. The fact that the court removed the appellant because it found appellee by its own record to be an adopted child, and therefore entitled to be administrator of such estate, as against the appellant, who is a sister, whose application for letters of administration of said estate failed to mention the names of the adopted children, does not determine the issues of the case pending in the common pleas court, wherein the persons who are the legal heirs of the deceased will, upon trial, be determined. While such questions are awaiting trial in the common pleas court, the estate and its administration under the jurisdiction of the probate court must continue.

The judgment of the probate'court appointing appellee as administrator of said estate is therefore affirmed. Exceptions noted. Order see journal.

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


author: By BARTLETT, J.

text:
    ACCURATE EMPLOYMENT SERVICE, Plaintiff-Appellee, v. ROWELL, Defendant-Appellant.
    Common Pleas Court, Franklin County.
    No. 191031.
    Decided November 16, 1954.

      Walter S. Barrett, Jr., Columbus, for plaintiff-appellee.
    Brownfield, Ford & Douglas, Columbus, for defendant-appellant.
   OPINION

By BARTLETT, J.

APPEAL SUSTAINED. JUDGMENT OF MUNICIPAL COURT IN FAVOR OF PLAINTIFF-APPELLEE REVERSED. JUDGMENT OF DISMISSAL IN FAVOR OF DEFENDANT-APPELLANT ENTERED AT PLAINTIFF-APPELLEE’S COSTS.

This is an appeal from a judgment of $177.45 against the défendant-appellant in the Municipal Court of Columbus.

No appeal bond having been filed, as required by law, the appellant is not entitled to an appeal on questions of law and fact; but such an appeal is retained as an appeal on questions of law in accordance with §2505.23 R. C. (Sec. 12223-22 GC.)

The facts disclosed by the record are that defendant was placed for employment as a secretary by the plaintiff, a private employment agency, under the terms of a written contract in which defendant agreed to' pay plaintiff a fee based upon a certain percentage of the first month’s salary (GROSS EARNINGS). Defendant worked two days and left her place of employment at the end of the second day, and did not return for the alleged misconduct of her immediate superior and only office associate, the manager; the misconduct being described by the defendant as “a little more friendly than I cared to be,” putting his hands on her unnecessarily both in the office and while out for lunch, “unnecessary handling” as defendant described it, inappropriate conversation about his relations with his wife, and the closing of the office each day so he could take the defendant out for drinks.

When defendant left the office on the second day, she did not notify her employer she was not returning; but she immediately called Mrs. Vought, a partner or manager of plaintiff agency, and related to her “exactly what happened.” (R. 31.)

Defendant testified that Mrs. Vought then stated: “I didn’t have to work for a man that treated me like that and that is why I quit.” (R. 25.) Defendant also testified Mrs. Vought stated they would find other employment for her, and Mrs. Vought did send her to other places but they did not prove satisfactory for her employment.

The defendant further testified that she had been with her present employer as secretary almost a year; that she had served as secretary about 8 years with different firms; and she had never left any other employer on account of such improper advances.

Plaintiff offered no rebuttal to defendant’s testimony as to the conduct of her manager, or the conversation of Mrs. Vought when she reported the incidents concerning the manager’s conduct, notwithstanding plaintiff had several days to secure witnesses for rebuttal, due to recess of the court. The judgment included $50.00 penalty, based on defendant’s alleged failure to pay her placement fee when she left her employment. The defendant never received pay for the two days she worked.

Defendant’s Exhibit 1 discloses the contract defendant signed, and on which plaintiff bases its claim. In part -it states: “I will pay a placement fee based upon the following percentage of the first month’s salary (GROSS EARNINGS):” “Gross Earnings” means entire earnings received. C. M. L. Traction Co. v. State, 94 Oh St 24; R. R. Co. v. R. R. Co., 44 Oh St 287. Defendant did not receive any compensation on which to base a percentage fee. The contract further stipulated: “Should I fail to report for work after accepting a position from an employer to whom I have been referred by * * * (plaintiff), I will pay immediately the full placement fee.” Plaintiff founds its entire claim including penalty on this stipulation. The Court holds this stipulation does not apply since defendant did report for work two days in succession. Since this agreement drawn by plaintiff undertakes to provide a penalty, it should be construed strictly. 37 O. Jur. Statutes, Sec. 430, p. 744.

Plaintiff undertakes to justify its fee under Subsection 5 of the regulations by the Bureau of Unemployment Compensation governing private employment agencies, by the claim that this section provides where the applicant “voluntarily” terminates her employment, the placement fee will be computed on a permanent employment basis. This Court rules as a matter of law that the defendant did not voluntarily terminate her employment, but instead she quit her employment for adequate cause. “Voluntarily” means freely and without compulsion. The Court on the record believes defendant was justified in leaving such employment, and that her regard for decent moral relations in an office was a sufficient .compelling reason for her so doing. Mrs. Vought undoubtedly thought the same thing when defendant reported to her and is to be commended in the attitude she displayed at that time.

Counsel for plaintiff belittles the defendant’s version of the alleged misconduct of her office associate. The Court cannot agree that defendant’s account of this course of conduct should not be given serious weight. Counsel should be reminded that in the law of 'evidence, silence at a time when a party ought to speak and offer an explanation is admissible in evidence as part of the res gestae as bearing upon the question of his good faith in the act done. Ry. v. Conner, 74 Oh St 335. Admissions may be inferred from silence or acquiescence at a time when the party ought to speak, or when he should challenge an imputation or accusation. 17 O. Jur. Evidence, Sec. 346, p. 314.

“Declarations which are the immediate accompaniments of an act are admissible as part of the res gestae;” * * * “The utterance * * * made at the earliest opportunity * * * was the spontaneous and impulsive language of the situation, free from any subterfuge, artifice or motive to fabricate.” State v. Lasecki, 90 Oh St 10.

“Since this utterance is made under the immediate and uncontrolled domination of the senses, and during the brief period when considerations of self-interest could not have been brought fully to bear by reasoned reflection, the utterance may be taken as particularly trustworthy (or, at least, as lacking the usual grounds of untrustworthiness), and thus as expressing the real tenor of the speaker’s belief as to the facts just observed by him; * * State v. Lasecki, supra, p. 10; Wigmore on Evidence, Vol. 3, Sections 1745 to 1747.

In other words, the fact the defendant, immediately reported to the plaintiff agency, “exactly what happened,” lends strength to her good faith and trustworthiness, in relating sincerely the situation that caused her to leave her place of employment.

The plaintiff is estopped in any event to question the defendant’s justification for leaving the employment where she had been placed by the plaintiff agency.

It is not disputed that on leaving her employer’s office after completing her second day there, defendant immediately called the office of the plaintiff and reported the alleged incidents at the office where she was employed; and the defendant testified that after relating “exactly what happened,” Mrs. Vought of plaintiff’s office, stated that the defendant “didn’t have to work for a man that treated me (defendant) like that,” and defendant then testified, “and that is why I quit.” There is nothing in the record that indicates the defendant had notified her employer she would not return for work the next day. If defendant testified truthfully, apparently Mrs. Vought at that time felt defendant had just cause for leaving her employer, and encouraged her not to return.

“The doctrine of equitable estoppel is frequently applied to transactions in which it would be' unconscionable for a party to take a position inconsistent with the one in which he has acquiesced.” 16 O. Jur. Estoppel, Sec. 53, p. 610.

“It is a well recognized rule in Ohio that a party cannot be permitted to occupy inconsistent positions or to take a position in regard to a matter which is directly contrary to or inconsistent with one previously assumed by him. Where a party has an election to adopt one of two inconsistent courses, and takes decisive action with knowledge of his rights and the facts, his election is determined and he is estopped.” Ibid, Sec. 59, p. 623.

“An estoppel may arise under certain circumstances from silence or in action as well as from words or actions. This principle is embodied in the maxim, ‘one who is silent when he ought to speak will not be heard to speak when he ought to be silent,’ and variant forms thereof.” Ibid. Sec. 51, p. 605.

Declarations in pais will operate as an estoppel in favor of those whose conduct it may be fairly supposed, they were intended to influence. Morgan, et al. v. Spangler, Sheriff, 14 Oh St 102, 16 O. Jur. Estoppel, Sec. 45, p. 600;

“Estoppel arises when one is concerned in or does an act which in equity will preclude him from averring anything to the contrary, as where another has been innocently misled into some injurious change of position.” 16 O. Jur. Estoppel, Sec. 36, p. 589.

In other words, when defendant reported to plaintiff agency her version of the incidents of the office, if it was felt she did not have sufficient reasons for leaving, she should have been so advised and encouraged to return to work; but having given her the opposite advice and encouragement, plaintiff cannot later change its position, just to collect its placement fee.

The foregoing conclusion of the court is also supported by' the doctrine of waiver.

“A waiver is an intentional relinquishment, either expressly or constructively, of a known right.” Ibid, Sec. 36, p. 589. Russell v. 4th Natl. Bank, 103 Oh St 348, 269.

The appeal to this Court is sustained, the judgment of the trial court is reversed, and this Court now renders a judgment dismissed in favor of the defendant with costs against the plaintiff, being the judgment which should have been rendered by the court below. Sec. 2505.37 R. C.

Entry accordingly with exceptions to counsel for the plaintiff-appellee.


author: By HORNBECK, J.

text:
    KELLY, Plaintiff-Appellant, v. SHAFER, Defendants-Appellees.
    Ohio Appeals, Second District, Franklin County.
    No. 4429.
    Decided August 24, 1950.
    Bernard C. Moloney, Marion, Paul M. Ashbaugh, Columbus, for plaintiff-appellant.
    Robert Dow Hamilton, Columbus, for defendants-appellees.
   OPINION

By HORNBECK, J.

This is an appeal on questions of law and fact from a judgment of the Common Pleas Court dismissing plaintiff’s petition.

The cause was tried upon issues drawn by the amended petition, answer and reply. By the journal entry it appears that the trial judge found that there was a partnership existing between the plaintiff’s decedent, Clem T. Kelly, and the defendant, Richard H. Shafer, in which Mr. Kelly “had a one-eighth contractual and equitable interest in the capital assets of said business which interest as of January 10, 1935, was worth $15,562.50 and that on said Date Mr. Kelly had an equity in a cash balance and bills receivable amounting to between $10,000.00 and $20,000.00 and that on December 31, 1935, plaintiff’s decedent released to the defendant, Richard H. Shafer, all rights and interest held by him in the partnership including any equitable interest he had in the plants in question as well as any and all capital assets of the firm.”

Preliminary to the formal order Judge Randall rendered a written opinion discussing the facts fully and setting forth the law upon which he resolved the issues in favor of the defendant. Although this appeal is on questions of law and fact and must be determined in this Court originally, we have reached the same conclusion as Judge Randall upon the two dispositive questions, viz.: whether Mr. Kelly was a partner with Mr. Shafer in the business of the Ohio Road Improvement Company and, if so, did Mr. Kelly by the written instrument of December 31, 1935, which he signed, release any and all of his interest of any kind and character in the partnership.

It would serve no good purpose to state the same facts as set forth in the opinion in the Common Pleas Court and reach the same conclusion in substantially the same language as in that opinion. We, therefore, adopt it as the opinion in this case.

The technical aspects of the partnership become immaterial in view of the release. This release was for valuable considerations sufficient to support it, was comprehensive and accomplished a full transfer of any interest that Mr. Kelly had in the T-60 operations between him and Mr. Shafer whether in the form of ownership of assets of the partnership or profits or benefits therefrom.

The judgment in this Court will be the same as in the Common Pleas Court.

MILLER, PJ, WISEMAN, J, concur


author: By FULTON, J:

text:
    PETERSON, Plaintiff, v. PETERSON, Defendant.
    Common Pleas Court, Cuyahoga County.
    No. 659099.
    Decided September 3, 1954.
    D’Arnold Davis, Jr., Cleveland, for plaintiff.
    Thomas C. Begley, J. J. P. Corrigan, Cleveland, for defendant.
   OPINION

By FULTON, J:

The issues in this divorce case were presented by the plaintiff-wife’s petition and defendant-husband’s answer. The evidence was presented upon these issues.

The parties are cultured people. The husband is thirty-four years of age, the wife is thirty years of age. They were married February 3, 1949; neither were married before. There is no difference in religious training, background, or present religious status.

The husband is an accountant by training. He teaches accounting at Case Institute of Technology. In addition, he does some outside accounting work and from time to time has sold real estate.

There are two minor children. The elder, a son, is aged five, and the younger, another son, is aged three. They are, by the evidence, sturdy, active and energetic. These children presently are residing with the husband’s sister. The husband resides with his parents pear the sister’s home. The husband-father has evening meals with the children, bathes them and otherwise prepares them for bed. The wife resides in the marital home.

The wife is and has been ill physically and emotionally for some time past. Medical and psychiatric treatment has been furnished. According to the testimony of neighbors, the wife’s housework and care for the children have lagged. This is attributed by the Court to her illness and to no other cause.

The husband is—and so demonstrated on the witness stand —a real disciplinarian. This caused him not to be able to handle the problem as well as possible. His failure to do this and his use of physical force and violence—though claimed as slight and explained on the ground of endeavoring to oring the wife “to her senses” and though she retaliated with some force—amounts to gross neglect of duty on his part. On this ground the wife is entitled to the divorce.

By way of passing, Dr. Alfred Bochner, a psychiatrist connected with University Hospitals, and whose diagnosis was a neuroses based' on his own findings, but a probable psychosis if based on findings reported to him by the wife’s personal physician, testified, in response to a question of the Court, that in his opinion a divorce would be helpful in bringing about an improvement or cure of the wife’s present illness.

A divorce will be and is granted plaintiff-wife on the ground of gross neglect of duty.

The marital home is owned in common. It was purchased for about $11,000.00. It is now worth between fifteen and sixteen thousand dollars gross. The balance due on the mortgage to the National City Bank is approximately $8,750.00.

As partial alimony, payable from and out of the real estate, the Court allows the wife an amount equal to three-fourths of the value thereof; this will be treated as lump sum alimony. The payment of this amount will be made possible-only by a sale of the premises.

Said real estate is ordered sold in order to pay the wife this portion of the alimony and from the net proceeds of such sale the wife shall receive three-fourths thereof.

The net proceeds shall be determined after deductions from the gross selling price of the following items:

1. The amount due the National City Bank upon its mortgage.

2. Those items of expense, of credit and debit, in connection with the sale of the real estate, including real estate commission, escrow fees and expenses, taxes and assessments in accordance with the pro rations provided by the contract of sale or the éscrow instructions.

3. The amount due on a note to the Cleveland Trust Company, ki the original face amount of $500.00. the proceeds of which were used in connection with family household, home, house, and children’s expenses.

4. The amount due upon two notes to the husband’s parents in the aggregate original face amount of $700.00. One of these notes was dated February 10, 1954, in the face amount of $500.00 and the other was in the original face amount of $200.00 dated April 5, 1954.

. 5. Water and Heat—$10.35, unless this item is taken into account in the computation and disbursement through escrow.

6. Halle Bros. Co.—$109.50—which represents purchases made for the wife, children and family.

7. Hospital and Medical expenses in the amount of $25.00.

8. Television repairs in the amount of $12.32.

9. Sterling-Lindner-Davis—$7.84.

The court has made the provisions in the next- preceding paragraph because it is its view that all debts and obligations should be paid and discharged when the real estate is soid.

The Court thinks that the amount of $350.00 due the husband’s sister for care of the children up to July 15th should be otherwise paid and should not be deducted nor should any subsequent indebtedness for these services since July 15th and still unpaid be deducted in arriving at the net proceeds divisible one fourth to the husband and three fourths to the wife.

Doubtless there will be a tax for a capital gain when the property is sold. This gain should be shared and paid the parties in proportion to their allotted shares of one fourth and three fourths as above set forth.

The husband’s salary at Case Institute of Technology is $420.00 per month gross from which he has take home pay of approximately $360.00. His outside accounting work for The Warren Engineering Company pays him $50.00 per month. During 1954 the Warren Engineering Company paid him an additional $300.00 over and above the monthly stipend of $50.00 a month. This $300.00 was a fee for setting up the company’s bookkeeping system. The husband has also received some extra pay from Case Institute of Technology in the amount of $250.00 for extra work performed. He did earn, and is capable of earning, additional income through the real estate business. The husband is energetic, able and intellectual as well as intelligent. He can with proper effort supplement his instructorship income.

Therefore, based upon the husband’s earnings, including his potential earning capacity, the wife is entitled to as additional alimony for her support, and the husband will be ordered to pay for such support, the amount of $100.00 per month until further order of court, and terminable, in any event, by the wife’s subsequent marriage.

This question of support should be re-examined at least annually to determine the need and wisdom of its continuance based upon all factors, including especially the condition of the wife’s health and her ability and capacity to earn— she was gainfully employed before marriage. More frequent re-examination of this question is not barred ana may be had within the concept “until further order of the court.”

The question of custody of the children is difficult Custody in the mother might be very helpful to her physical welfare even if their residence is placed elsewhere Here, however, the Court fears that therapeutic and legal principles conflict. The fear is that custody carries the incidents of care, control, supervision, education etc. These fears would be no restraint upon the Court, except as later indicatea, since it is strongly suspected that the wife-mother, as in the past, according to the evidence, again will sojourn to and reside with her parents in Youngstown. These parents are fine people. However, they are elderly; the wife’s mother is troubled with hypertension and the wife’s father is afflicted with a cardiac condition. Children will annoy these elderly people (as this Court knows, children annoy younger and well grandparents).

The mother’s illness presently unsuits her for custody. The father’s duties demonstrate the lack of time and facilities— conditions quite common to fathers. He therefore is unsuited to have custody.

Custody is granted directly to Mrs. Knapp, sister of the husband, subject to further order. This question too should be re-examined at least annually with the right reserved for further and more frequent re-examination within the concept “subject to the further order of the court.”

The Court is not unmindful that Mrs. Knapp has children and demonstrated a degree of feeling against Mrs. Peterson on one occasion of the latter’s visit to the children at the Knapp home, and, moreover, she frankly admitted some general feeling as a result of the Court’s interrogation. This must not recur In spite of the foregoing, the custody solution here suggested seems best since Mrs. Knapp knows the feeling of motherhood. She must not interfere with the visitation privileges accorded Mrs. Peterson nor with visits made by Mrs. Peterson. If under the law applied to the circumstances, direct custody cannot be placed in Mrs. Knapp, then the question of custody is referred to the Juvenile Court with the recommendation that it give full consideration to Mrs. Knapp as the custodian. Sec. 3109.03 R. C. (§8005-3 GC) appears expressly to permit the placement of direct custodianship in Mrs. Knapp, aunt of the children.

The plaintiff-wife shall be accorded liberal visitation privileges while the children are with Mrs. Knapp or elsewhere.

The children shall be with the mother, if she has suitable living quarters, four continuous weeks during the summer, one week during alternate Christmas seasons, and moreover the children should be with the mother on alternate Thanksgiving and'Easter Holidays.

When the children are with the mother, the father shall pay for their maintenance an additional $20.00 per week to the plaintiff, or at that rate for less than a full week; and he shall pay full support while the children are in the custody of Mrs. Knapp or elsewhere.

A decree may be drawn which will embrace the suggestions contained in this opinion.


author: By MILLER, J.

text:
    MERCHANTS FIRE INSURANCE COMPANY, Plaintiff-Appellee, v. JACKSON et, Defendants-Appellants.
    Ohio Appeals, Second District, Franklin County.
    No. 4822.
    Decided February 27, 1953.
    Isaac & Postlewaite, Sol Morton Isaac, of Counsel, Columbus, for plaintiff-appellee.
    Wiles & Doucher, Columbus, Jack R. Alton, of Counsel, for defendant-appellant, Wile Motor Sales, Inc.
   OPINION

By MILLER, J.

This is a law appeal from the judgment of the Municipal Court of Columbus rendered in favor of the plaintiff-appellee upon its subrogation contract for damages arising out of an automobile collision. The petition sets forth a cause of action against three defendants, two of whom were dismissed by the trial court and since no cross-appeal has been taken to this ruling, further consideration need not be given to that.

The judgment was rendered against the appellant, the Wile Motor Sales, Inc,, upon the doctrine of respondeat superior.

The record reveals that the appellant is engaged in the business of selling new and used automobiles and it requires salesmen to buy demonstrators which they are to use in their business from four to six months and then to be sold. The defendant Motor Sales Company had a salesman by the name of Larry Ashbury who had such a demonstrator car for sale. He had a purchaser by the name of Jackson who drove his car to defendant’s place of business for the purpose of completing the deal for the Ashbury car. It was then discovered that Jackson needed an additional $50.00 to complete the transaction. Ashbury permitted Jackson to drive the car being purchased, to his brother’s home to see if he would advance him the ádditional money. His brother refused and he tried several other places unsuccessfully. Upon the return trip the collision occurred, the damages for which the judgment was rendered. The appellant well states the question presented as follows: Is a motor vehicle agency liable for the negligence of a purchaser in operating one of its or its salesmen’s cars when the purchaser is attempting to raise money to purchase the car? We have examined the entire record and find nothing there to support the conclusion that an agency relationship existed. The appellee urges that Jackson went for the money upon the express order of Ashbury, but we do not so interpret the testimony. On this question Jackson testified on page 13 of the record as follows:

“Q. 59. You did see Mr. Ashbury, is that right? A. I saw Mr. Ashbury.
“Q. 60. Go ahead from there. A. And so Mr. Ashbury got the papers that had been completed on the transaction and told me to—that I would have to have fifty dollars more in order to close the transaction. And so—so I told him that I didn’t know whether I could get the fifty dollars or not, so I would just wait until the first of the week; this was on a Friday, and since it was closing time, I would wait until the first of the week and go out, and come back the first of the week with the money if I was able to get it. And so Mr. Ash-bury asked me if I would like to go out and see if my brother would let me have it, and of course I told him-1 would. And he offered me his car, and I took the car. And as I was starting out, that’s when the accident occurred on Mount Vernon and Jefferson Avenue.”

We think under the facts presented no control of the automobile was retained by this appellant and therefore there can be no liability. The facts in the case of McElrath v. Luarde, 33 Abs 279, seem to be somewhat parallel with the case at bar, the first paragraph of the syllabus of which provides:

“1. The negligence of the son of a prospective purchaser of an automobile while driving it for purposes of trial unaccompanied by any representative of the owner is not imputable to the owner who has permitted him so to operate it, since control of the car has been surrendered, and the relationship existing is that of bailor and bailee, not principal and agent.”

See also Schreiber v. Universal Car Co., 60 Oh Ap 263; Dahnke v. Meggitt, 63 Oh Ap 252.

We are of the opinion that the trial court erred in overruling the appellant’s motion to dismiss the case at the close of all of the evidence. The judgment is reversed and cause ordered remanded with instructions that judgment be entered in favor of the Wile Motor Sales, Inc., appellant.

WISEMAN, PJ, and HORNBECK, J, concur.


author: By CLIFFORD, J.

text:
    CHATEAU CAFE, Inc., Appellant, v. DEPARTMENT OF LIQUOR CONTROL et, Appellees.
    Common Pleas Court, Franklin County.
    No. 188783.
    Decided April 23, 1954.

      Louis E. Freedman, Cleveland, for appellant.
    C. William O’Neill, Atty. Genl., Kiehner Johnson, Asst. Atty. Genl., Columbus, for appellees.
   OPINION

By CLIFFORD, J.

This appeal arises from an order and findings of the Board of Liquor Control rejecting an application for Classes D-l and D-2 permits. The order appealed from is set forth as follows:

“This cause coming on for hearing on an appeal of Chateau Cafe, Inc., 1532 Crawford Road, Cleveland, Ohio, from an order of the Director of Liquor Control rejecting an application for Classes D-l and D-2 permits, was submitted to the Board of Liquor Control on the evidence, and on consideration thereof said Board finds that the appellant is not the owner or operator of a restaurant or lunch stand and for that reason the application for renewal of Classes D-l and D-2 permits should be rejected.
“It is therefore ordered that the within appeal be, and the same hereby is, dismissed.”

The Department of Liquor Control refused and rejected said application for the following reasons:

“Sec. 4303.13 R. C., provides in part as follows:
“ ‘Permit D-l may be issued to the owner or operator of a hotel or restaurant licensed pursuant to §3731.01 R. C., or oí a club, amusement park, drugstore, lunch stand, boat, or vessel, * * *’
“Sec. 4303.13 R. C., provides in part as follows:
“ ‘Permit D-2 may be issued to the owner or operator of a hotel or restaurant licensed pursuant to §3731.01 R. C., or of a club, boat, or vessel, * * *’
“Sec. 4301.01 (B) (13) R. C., defines restaurant as follows:
“ ‘Restaurant’ means a place located in a permanent building provided with space and accommodations wherein, in consideration of the payment of money, hot meals are habitually prepared, sold, and served at noon and evening, as the principal business of the place. * * *
“The department finds that the applicant is not the owner or operator of a restaurant at subject premises in that no food was on the premises at the time of departmental inspection, anfi said applicant was not prepared to serve food.”

The facts are gathered from the testimony of Clifford Thompson, Field Inspector of the Department of Liquor Control, Fred Zahler, also an inspector for said Department, and Louis E. Freedman, statutory agent, attorney and keeper of the records of the appellant corporation. Said Thompson testified that he, on August 27, 1953, made a renewal inspection for D-l and D-2 permits, at the premises of the Chateau Cafe, located at 1532 Crawford Road in Cleveland, Ohio, and found a gas stove in the kitchen, which was disconnected, and that there was no food. Said Zahler testified that he, about the first of October, after the renewal inspection had been made, made a food check of said permit premises, and found a stove there that was disconnected, and that there was no food on the premises or any means of preparation. And, said Freedman graphically testified as follows:

“My name is Louis E. Freedman. I am a statutory agent for the Chateau Cafe, a Corporation, and also its attorney. I also keep all of the records of the Company.
“MR. KREBS: All right.
“MR. FREEDMAN: I had sent in an application for renewal of a D-l and a D-2 permit of the Chateau Cafe. We had two iceboxes back there, which, during the summer time, we have quite a considerable amount of trouble with. The iceboxes were pulled out, although there was a cooling system for the beer and things like that. We had a manager, of course, in there, and one of these iceboxes was pulled out at the time of this permit renewal. The Inspectors came around, and they were still disconnected. It was true, there being no iceboxes there, and we were going to put in there entire new units. I think if the Department would inspect it now, there are new refrigerators, and all facilities for food. It so happens at- the time of the inspection, .we had no refrigerator.
“MR. KREBS: Was that in September or October?
“MR. FREEDMAN: It was in October?
“MR. KREBS: How about August?
“MR. FREEDMAN: We had no refrigeration. We had it off and on for the most time, and meats would spoil, and we would throw it away, so finally we pulled out the refrigerators entirely, and left it that way until we got new refrigeration in.
“MR. SCHUESSLER: When did your permits expire?
“MR. FREEDMAN: I don’t think our permits have expired as yet, if I’m not mistaken.
“MR. FREEDMAN: There was another inspector that came in there afterwards, and who he was I have never been able to find. He came in and checked it, and said it was O. K.
“MR. KREBS: Is the place operating now?
“MR. FREEDMAN: The place is operating now,—full facilities for food.
“MR. SCHUESSLER: One thing I can’t understand: How long had you been operating without restaurant facilities? without serving food, to August 27?
“MR. FREEDMAN: I don’t think very long; maybe two or three days or a week at most, when the iceboxes were taken out. As the Inspectors say, when they were in there, there were no iceboxes.
“MR. SCHUESSLER: How did you keep your beer cold?
“MR. FREEDMAN: We have cabinets for ice, and also some refrigeration for beer.
“MR. KREBS: Anything else?
“MR. FREEDMAN: That’s all.”

From the testimony of all three of said witnesses, this Court finds that there is but one ultimate conclusion of fact upon which reasonable minds cannot differ, namely, that the permit holder is the owner or operator of a restaurant but that there was a temporary breakdown in the operation of its business; during which gap it was not able to serve food, i. e. hot meals at noon and evening as its principal business, due solely to a broken-down refrigeration system; and at the time of the hearing before the Board, there were new refrigrators and all facilities for food. The Court further finds that the finding of the Board that “the appellant is not the owner or operator of a restaurant * * *” is manifestly against the weight of the evidence.

We quote from Volume 1, O. Jur. (2d) under the title “Administrative Law and Procedure,” Section 190, page 583:

“Adjudication under Administrative Procedure Act.—The Administrative Procedure Act provides that in regard to an adjudication order the court may determine whether it is supported by reliable, probative, and substantial evidence.
“Under this statute the court merely determines whether there was sufficient evidence to sustain the finding of the administrative agency. It applies the test which is appropriate in civil appeals and determines whether the administrative action was against the manifest weight of the evidence. It is not limited to determining whether the agency abused its discretion.”

In Volume 1, O. Jur. (2d) under the same heading, we quote from page 580, Section 188:

“The general rule is that administrative orders and findings will not be disturbed unless they are against the manifest weight of the evidence or not supported by any substantial evidence, even though the court should conclude that it was against the greater weight of the evidence. However, findings and orders will be reversed and set aside where there is no substantial evidence to support them.”

When we apply these legal pronouncements to the facts of the appeal now before us, we have no hesitancy in finding, and holding, that the order appealed from is not supported by reliable, probative and substantial evidence, and therefore, is not in accordance with law. The order of the Board is reversed.


text:
    HOWELL, Plaintiff-Appellee, v. FROST et, Defendants-Appellants.
    Ohio Appeals, Second District, Franklin County.
    No. 5041.
    Decided April 19, 1954.
    Paul M. Herbert, James C. Britt, Col.umbus, for plaintiffappellee.
    Bricker, Marburger, Evatt & Barton, Robert L. Barton, John Eckler, of Counsel, Columbus, for defendant-appellant, The Buckeye Union Casualty Company.
   OPINION

By THE COURT.

Submitted on motion of the plaintiff-appellee seeking an order striking the appellant’s reply brief from the- record for the alleged reason that three exhibits are attached to it, which are no part of the bill of exceptions. Counsel for the appellant, in its brief, admits the three exhibits are no part of the bill, but urges they are relevant and material to the issues presented. The law seems to be well established that this Court, in a law appeal, cannot consider matters foreign to the record; that a reviewing Court can only consider evidence contained in the bill of exceptions. Riley v. City Railway Co., 16 Abs 292; Garner v. White, 23 Oh St 192. If these exhibits properly belong in the bill of exceptions, the same should be remanded to the trial court for correction.

The motion will be sustained to the extent that the three exhibits will be ordered stricken.

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


author: By HUNSICKER, J.:

text:
    WILLIAMS, Plaintiff-Appellant, v. PRESSMAN, Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22724.
    Decided May 27, 1953.

      Cornelius Maloney, Cleveland, for plaintiff-appellant.
    P. H. Cassidy, H. S. Pressman, Cleveland, for defendantappellee.
    (DOYLE, PJ, STEVENS, J, HUNSICKER, J, of the Ninth District sitting by designation in the Eighth District.)
   OPINION

By HUNSICKER, J.:

An appeal on questions of law is before this court from a judgment entered after the trial court directed the jury to return a verdict for the defendant, the appellee herein.

The appellant, Mary Pringle Williams, was having domestic troubles. The appellee, Herman S. Pressman, was the lawyer engaged to represent Carroll Williams, her husband. Mrs. Williams telephoned Mr. Pressman and asked him if she could talk with the lawyer and her husband about some bonds and corporation stock certificates which were missing from her safe deposit box. Mr. Pressman arranged the conference which Mrs. Williams requested, and the discussion was held in his office. In the course of this conference, Mr. Pressman asked Mrs. Williams to leave his office. In order to get her to go, he took her by the arm and led her to the door leading out of the reception room into the hallway of the building. At the door Mrs. Williams stopped and inquired again concerning the bonds and stock. In the words of Mrs. Williams—“It was quite a conversation between the office arid the door.” Then Mrs. Williams said: “He (Mr. Pressman) opened the door and shoved me out *.* The “shove,” Mrs. Williams claims, caused her to fall to the floor, resulting in injuries for which she seeks damages in the action filed against Mr. Pressman.

The conference and the claimed injuries occurred on February 3, 1949. The action for damages was filed on January 19, 1951. The trial court determined, at the conclusion of the case for Mrs. Williams, that the action was one arising out of an assault and battery, and hence that it was subject to the limitations set out in §11225 GC. Counsel for Mrs. Williams claims that §11224-1 GC, applied. This latter statute fixes a two-year period in which actions for bodily injury shall be commenced.

If the conduct of Mr. Pressman amounted to a battery, then the trial court was correct in directing a verdict for the defendant. On the other hand, if such conduct was not a battery, but was the result of negligence, then the action was commenced within the time limit set out by statute. Arend v. Mylander, 39 Oh Ap 277.

We think the law is clear that, where one comes to another’s home, or, as in this case, to his office, and causes a disturbance and refuses to leave after being requested to do so, such force as is necessary may be used to eject the person so requested from the premises, “and the law does not closely, nor nicely, measure the force which the defendant used to effect that purpose.” Armuleuis v. Koblitz, 114 Oh St 73, at p. 75.

And see: Hammond v. Ray, 50 Oh Ap 47; Humphrey Co. v. Cohen, 16 C. C. (N. S.) 284; 6 C. J. S., Assault and-Battery, Sec. 20 c (2) (a).

The complaint of Mrs. Williams is that Mr. Pressman, although he had the right to eject her from his office, used more force than was necessary to effect this purpose, and was thus acting not unlawfully, but negligently.

If Mr. Pressman was acting unlawfully in so using greater force than was necessary, he was guilty of a battery, and the one-year statute would apply. In other words, what is the legal effect of using more force than is necessary to eject one, as in the instant case, from the premises?

There is no question but that Mr. Pressman intended to put Mrs. Williams out of the office, although he did not intend the result that did occur. An assault and battery is not negligence, for such action is intentional, while negligence connotes an unintentional act.

It has been determined that “A mere trespass on real estate does not justify the owner in the use of fire arms in driving the trespassers from the premises * * Cordes v. Mason, 14 C. C. (N. S.) 70.

Where one uses more, force than is necessary in ejecting a person from his premises, he cannot successfully invoke the defense of reasonable force, and consequently such person is liable for the injuries inflicted.

6 C. J. S. Assault and Battery, Sec. 20 c (2) (a), and cases cited in notes 7 and 8 on p. 820.

Noonan v. Luther, 206 N. Y. 105, 99 N. E. 178.

Ryan v. Marren et al, 213 Mass. 556, 104 N. E. 353.

The situation we have here is analogous to the degree of force used in a case wherein the defense of self-defense is raised. As is said in 4 Am. Jur. Assault and Battery, Sec. 51:

“In other words, to the extent that excessive violence and unnecessary force is used in repelling an assault, one becomes liable as trespasser and subject to an action for assault and battery.”

An action, in some respects resembling the instant case, is Sousa v. Schultz, 8 Abs 357, in which the Court of Appeals for the Eighth District determined that the damages cannot be separated from the cause that produced them, and hence the one-year statute of limitations relating to assault and battery actions was held to apply.

We therefore determine that, from the circumstances and the evidence in this case, the action was one in assault and battery, based upon the excessive use of force adopted to eject Mrs. Williams from the premises, and that consequently the one-year statute of limitations applies. The trial court did not commit error prejudicial to the substantial rights of the plaintiff in entering judgment for the defendant on the directed verdict.

Judgment affirmed. Exceptions noted. Order see journal.

DOYLE, PJ, STEVENS, J, concur.


author: By HORNBECK, J.:

text:
    GIBSON, Plaintiff-Appellee, v. CITY RAILWAY COMPANY, Defendant-Appellant.
    Ohio Appeals, Second District, Montgomery County.
    No. 2223.
    Decided April 9, 1953.

      Baggott & Johnston, Dayton, Horace W. Baggott, for and on behalf of plaintiff.
    Landis, Ferguson, Bieser & Greer, Dayton, Rowan A. Greer, Jr., for and on behalf of defendant.
   OPINION

By HORNBECK, J.:

This is an appeal on questions of law from a judgment of the Common Pleas Court for the plaintiff and against the defendant in the sum of $10,000.00 and costs on a special verdict of a jury.

The action was for damages for personal injuries claimed to have been suffered by plaintiff, a passenger on a trolley bus of - the defendant when it collided with an auto on the south side"of an intersection of Sixth Street and Ludlow Street in the City of Dayton. The bus in which the plaintiff was riding was moving in a northerly direction on Ludlow Street. The plaintiff intended to alight at Fifth Street, which was an intersection one square north of Sixth and Ludlow. As the bus approached Sixth Street, where there is an overhead railroad viaduct, an automobile moving to its right passed it headed for the intersection of Sixth and Ludlow and before it could clear the intersection, the light having changed to amber, it stopped. The bus then attempted to stop but did not succeed in doing so until it struck the automobile.

There is variation in the testimony as to the speed of the bus as it approached the railroad viaduct and before it applied its brakes. The plaintiff stated that it was moving from 35 to 40 miles per hour; other witnesses fixed the speed at lesser rates. It is undisputed that the driver of the bus put his brakes on quickly and brought it to a sudden stop. The plaintiff was seated on the first cross seat on the right hand side of the bus, and preparatory to leaving, arose a short time before it came to a stop and moved toward the front, taking one step, and then remembering that she should leave by the middle exit, turned and took a step or two toward the middle of the bus and reached for the bell cord. As she was doing so, and before she had gotten hold of the cord, the brakes were applied and the bus came to a sudden stop, causing plaintiff to fall and suffer injuries. Plaintiff had a pocketbook and a wrapped sandwich in one hand and reached for the cord with the other.

The negligence charged against the defendant was violation of a speed ordinance of the City of Dayton, failure to give warning of,his intention to apply the brakes, and violation of the assured clear distance ahead statute. The answer was substantially a general denial. The jury returned a special verdict profferd by the plaintiff signed by all of its members. The defendant proffered two forms of special verdicts.

The special verdict as returned, after finding that the plaintiff was a passenger of the defendant company, where she was seated, the direction in which the bus was moving and the presence of the automobile ahead of the bus as it approached Sixth Street, further specifically determined:

“We find that the traffic light at Sixth Street and Ludlow Streets was changing from green to red and was on the amber or caution signal as the car of James Pilgrim and the defendant’s bus approached the intersection and while they were both under the railroad viaduct next to said intersection. We find that James Pilgrim applied his brakes and stopped for the light and that the driver of the bus applied his brakes with great force but, was so close to the automobile of James Pilgrim that he was unable to stop before hitting the same and knocked it into the intersection of Sixth Street.
“We find that Hattie Gibson had arisen from her seat in the front of the bus to get off at Fifth Street; that she was carrying a package and her purse in one hand; that she had taken one step toward the front door and then turned to leave by the Exit door in the middle of the bus and that as she turned and reached for the bell cord with the other hand, the brakes of the bus were applied suddenly, causing her to fall backward and, in falling, to strike her back against the fare box in the front of the bus and to injure her hip in falling to the floor and that under the circumstances at that moment, there was nothing that she could do to prevent the fall and injury.
“We find that the speed with which the bus was being operated, under all of the circumstances, including the nearness of the automobile of James Pilgrim, the approach to the intersection of Sixth Street and the changing traffic light, was greater than reasonable and proper; we find that the bus driver did not keep a lookout for the changing traffic light and that he did not keep his bus under such control as to stop at the trafile light without hitting the automobile of Janes Pilgrim and that the passenger was thrown to the floor upon the application of the brakes and that this fall resulted in injuries to Hattie Gibson.”

There are other findings as to the injuries and their extent, and an assessment of the damages.

Defendant moved for judgment in its favor on the special verdict of the jury or, in the alternative, that the Court set aside the verdict and render judgment in favor of the defendant notwithstanding said verdict. This motion was overruled and thereupon a motion for new trial was filed upon the grounds that the special verdict was not sustained by sufficient evidence, is manifestly against the weight of the evidence, consists of conclusions other than facts and was contrary to law. This motion was overruled and this appeal prosecuted.

Two errors are assigned. One, the action of the court in the overruling of defendant’s motion for a directed verdict and for judgment on the special verdict because of plaintiff’s contributory negligence as a matter of law and, two, in overruling defendant’s motion for new trial based on other errors obvious from the record.

It is urged that the plaintiff, realizing the speed of the bus to be excessive, so conducted herself as to be chargeable with contributory negligence as a matter of law. Her derelictions are assigned as failure to ring signaling her intention to leave the bus before she left her seat, moving into the aisle of the bus at a time when she knew she was more than a square away from her destination, failing to support herself with rods in the bus which were within her reach.

Appellant cites numerous cases, among others, Cleveland Ry. v. Sebesta, 121 Oh St 34. In this case the court supported directed verdicts in favor of the defendant predicated upon the contributory negligence as a matter of law of the plaintiff.

Without reviewing the case at length, suffice to say that Judge Kinkade in the opinion, at the bottom of page 30 there' of, points out the differentiation between the facts there and here.

“He (the plaintiff) avers in his petition that the company knew or should have- known of such danger, but does not allege in his petition that he did not know of such danger, nor did he offer any evidence tending to prove that he was not fully aware of the dangers, if any, which attended the situation.”

The plaintiff had alighted from a street car in the path of moving traffic and made no effort to determine the presence of the traffic. Judge Kinkade further, at page 34, said:

“Sebesta’s own evidence clearly discloses beyond a reasonable doubt that he was fully aware that he was stepping into a danger zone, and his evidence also shows that he stepped into the zone of danger entirely heedless of his own safety.”

This determination cannot, as a matter of law, be made in this case for the reason that the trial judge was not required to say, as a matter of law, that the plaintiff at the time that she moved in the aisle was in a known place of danger. Greyhound Lines v. Martin, 127 Oh St 499, and Mahoning & Shenango Railway & Light Co. v. Leedy, 104 Oh St 487, also treat of a dangerous situation created by the carrier but known to the plaintiff.

Sharpsteen v. Cincinnati Street Railway Co., 12 O. O. 287, 27 Abs 202; Behan v. Cincinnati Street Railway Co., 33 O. O. 476, 78 Oh Ap 129, are also cited as supporting the first assignment of error. Both of these cases hold that the failure of passenger plaintiffs to hold on to provided supports in a street car at the time of the injury sued upon raised an issue of contributory negligence which was for the determination of the jury. They afford no support for the contention that the conduct of the plaintiff here was contributory negligence as a matter of law. To so hold requires too many assumptions which the trial judge had not the right to indulge.

If the occurrence which caused plaintiff’s injuries had been produced solely by speed, even then there would have been a factual question whether or not she was negligent, but the special verdict finds that her fall was caused not only by speed but by the failure of the bus driver to maintain a lookout and to observe the traffic light in the intersection where he had stopped, and his sudden stop. It may not be said as a matte;: of law that the speed alone would have caused plaintiff to fall, nor does it appear that she had any knowledge whatever of the traffic conditions ahead of the bus, the proximity of the automobile ahead nor of the color of the traffic light at the intersection.

No cases are cited which would require the plaintiff as a matter of law to hold onto supports provided by the company as she was preparing to alight from the bus.

We have examined all of the cases cited and do not feel that it is necessary to discuss them further.

If it could be said that the plaintiff was chargeable with negligence there would then be left the question of proximate cause by the authority of Glasco v. Mendelman, 143 Oh St 649.

The. first assignment of error is not well made.

Under the second assignment it is urged that the court erred in permitting plaintiff to amend the amended petition. We do not so find. Defendant did not request a continuance and it does not appear that it was prejudiced by the action of the court.

It is urged that the court erred in refusing tc allow introduction of witness Palms’ prior written statement. Palms had testified as plaintiff’s witness. On cross-examination, it developed that he had made a written statement Cc the company which was submitted to him and concerning which he testified. We do not find this assignment exemplified on the record because, although it does appear that the written statement was marked as an exhibit, it was not offered in evidence.

It is claimed that the court erred in its charge in that it said the result of damages to be just compensation for tne actual loss sustained “by reason of the injuries,” and “Take into consideration the nature of the injuries” because oy the language employed it implied that the defendant had admitted that the plaintiff suffered some injuries.

We have examined the charge of the court and note that quite early in the charge he quoted verbatim the answer of the defendant to the effect that it stated “that she may have been injured to some extent.” It is doubtful if the charge can be interpreted as a statement that the defendant admitted any injuries, but the record clearly discloses that there was an admission that she suffered some injury. No prejudice could have resulted by the charge as given by the court in view of the development of the evidence. It is urged that the damages are excessive and predicated upon prejudice. The record does not support this contention.

The second assignment of error is not well made.

The judgment will be affirmed.

WISEMAN, PJ, MILLER, J, concur.


text:
    THOMAS, Plaintiff-Appellant, v. TURPIN, Jr., Defendant-Appellee.
    Ohio Appeals, Second District, Montgomery County.
    No. 2235.
    Decided November 12, 1953.
    T. L. Barger, Dayton, for plaintiff-appellant.
    Paul W. Rion, J. G. Tourkow, Dayton, for defendant-appellee.
   OPINION

By HORNBECK, J.:

This is an appeal on questions of law from a judgment of the Common Pleas Court affirming a judgment of the Municipal Court for the defendant-appellee. The judgment in the Municipal Court was entered by Joseph J. Freemas, Acting Judge.

Ten errors are assigned, all of which, save two, may be encompassed in the one claim that the court erred in resolving the evidence in favor of the defendant and against the plaintiff.

The acting judge made special findings, which set forth the developments upon which the errors assigned are predicated.

The material findings are that “the driver of the defendant’s automobile was negligent in the operation of same; that the evidence adduced by the plaintiff pertaining to the driver of the car, who is the father of the defendant, as to his being the agent of the defendant, was made voluntarily and comes under the rule of res gestae; that the testimony of the police officer corroborating the plaintiff’s statements about the driver of the car did not in any way establish the existence of principal and agent; and that the plaintiff has failed to establish such agency.” As determined in the above findings, the defendant was the son of the driver of the car, and not present with the father at the time of the collision. At the time of the collision the father made the statement to the plaintiff that he, the father, was on an errand for the son, namely, to purchase supplies at a plumbing establishment. Whether or not this was properly admitted as a part of the res gestae may not be tested because the appellee prosecutes no cross appeal. Whether or not it was admissible as a part of the res gestae, it was admitted as a declaration of the reputed agent as to his agency. The defendant testified that his father was not his agent, and at the time of the collision he was operating the car for his (the father’s) own benefit.

Evidently the trial judge made his findings upon the determination that taking the testimony of the plaintiff alone, it was insufficient to establish the agency of the father for his son, the defendant. This holding was sound. Chief Justice Shauck, in the opinion in the General Cartage & Storage Co. v. Cox, 74 Oh St 292, made this statement:

• “Nor should there be any dissent from the legal proposition * * * viz,, that the authority of an agent can not be proved by his own declarations.”

To like effect are Hroblak v. Metropolitan Life Insurance Co., 50 Abs 395; State, ex rel. Owens v. Trustees of Section 29, 11 Ohio 24; Kraus v. Cincinnati Tobacco Warehouse Co., 16 Oh Ap 468. There were no corroborating circumstances. That which is so characterized was but the declaration of the father.

The fifth assignment of error is that “the court erred in condoning the defendant’s not producing his father, the driver of the car, in court to testify as a witness.” Of course, the defendant was under no compulsion to use his father as a witness, and the plaintiff could have developed his testimony had he so desired.

The sixth error assigned is, “A person appointed as acting-judge for a certain day has no authority or jurisdiction to render judgment and to approve papers days and weeks after the expiration of his appointment.” We find nothing in the record which exemplifies this assignment. If the plaintiff did maintain his claim, that the acting judge was serving for one day .only, then he would be without the benefit of a bill of exceptions, which was signed by the acting judge long after the judgment entry was signed.

The judgment will be affirmed.

WISEMAN, PJ, MILLER, J, concur.


text:
    STATE, Plaintiff, v. SELBY, Defendant.
    Common Pleas Court, Franklin County.
    Nos. 34978, 34979 and 34980.
    Decided February 9, 1955.
    Robert E. Albright, Justin L. Sillman, R. Rush Warren, Columbus, for plaintiff.
    James C. Britt, Milton L. Farber, Columbus, for defendant.
   OPINION

By BARTLETT, J.

Plea in abatement to each count of the indictment in the above cases, on the ground that no competent evidence was before the Grand Jury as shown by the list of witnesses before it on which to base the indictments returned by the Grand Jury, is hereby overruled.

Such plea in abatement does not set up a defect in the record by facts extrinsic thereto, for the following reasons:

1. It is not necessary that the record show the names of all witnesses before the Grand Jury.

2. There is no means of determining the knowledge on the part of the grand jurors which would warrant the return of such indictments'.

3. The accused is not entitled to know the evidence before the Grand Jury on the presentation of his case It is the policy of the law, in furtherancce of justice that the preliminary inquiry before a Grand Jury should be conducted in secret.

4. Where an indictment of the Grand Jury is regular upon its face, there is a conclusive presumption that there was sufficient evidence to warrant the indictment; therefore, no evidence will be received, for the purpose of vitiating such indictment, either from the Grand Jurors, or the witnesses before them, or from any other person required by law to be present, as to the evidence given on such inquiry of the Grand Jury; and, consequently even the Court itself cannot inquire whether there was sufficient evidence before the Grand Jury to warrant its return of the indictments in question.

See the well reasoned opinion of Gorman, J„ in the case of State v. Schroder, et al., 16 N. P. (N. S.), 265; State v. Rhoades, 81 Oh St 397; State v. Woolard et al., 12 N. P. (N. S.), 395; Turk v. State, 7 Ohio, Part II, p. 240.

Plea in abatement overruled.


text:
    STATE, Plaintiff, v. KEARNS and SELBY, Defendants.
    Common Pleas Court, Franklin County.
    Nos. 34975, 34978 and 34980.
    Decided February 10, 1955.
    Robert E. Albright, Justin L. Sillman, R. Rush Warren, Columbus, for the State of Ohio.
    James E. Britt, Milton L. Farber, John J. Chester, Columbus, for defendants.
   OPINION

By BARTLETT, J.

THE PREVIOUS RULING OF THE COURT IS ADHERED TO, ORDERING COUNSEL FOR THE STATE TO FURNISH DEFENDANTS A BILL OF PARTICULARS IN THE ABOVE CASES IN ACCORDANCE WITH §2941.07 R. C.

The Court ordered the bill of particulars in the above cases at the request of the defendants.

Later the Court received memoranda of counsel for the state opposing such request, and a communication from such counsel that the Court had acted prematurely in making such an order.

Technically counsel for the state are probably correct. The Court ordered the bill of particulars furnished the defendants previous to the receipt of memoranda of counsel for the state, since it is a fundamental rule that the furnishing of such bill when requested or ordered by the Court, is mandatory under the statute providing for such bill of particulars; and also, with the thought that an order to furnish such bill of particulars, would facilitate matters in these cases, as counsel for the defendants would still have the right to file their motions to quash the indictments in question, even where a bill of particulars had been furnished.

“2. The bill of particulars which by the terms of the proviso to §13437-6 GC, the prosecuting attorney must furnish upon seasonable request by the defendant, or upon order of court, contemplates something over and above the mere essentials of the averments necessary to state an offense and something further and more specific than is set forth in the forms of indictments prescribed by the statute.

“3. A defendant charged with murder by an indictment couched in the language of §13437-6 GC, upon seasonable demand, is entitled to a bill of particulars setting out the ultimate facts upon which the state expects to rely in establishing its case, and the state upon supplying such bill should be restricted in its proof to the indictment and the particulars as set forth in the bill.” State v. Collett, 44 Abs 225, Court of Appeals for this district, appeal dismissed for want of debatable constitutional question in 144 Oh St 639.

“2. The proviso contained in §13437-6 GC, ‘that the prosecuting attorney, if seasonably requested by the defendant, or upon order of the court, shall furnish a bill of particulars setting up specifically the nature of the offense charged,’ is a mandatory provision and the overruling of defendant’s motion seasonably made to order the prosecuting attorney to furnish such bill of particulars constitutes error.” State v. Petro, 148 Oh St 473.

“3. All objections to an indictment, because of vagueness, indefiniteness, uncertainty and insufficiency, are waived by failure to seasonably request a bill of particulars.” State v. Whitmore, 126 Oh St 381.

The venturesome trio, as counsel for the State, court disaster in their demand that the defendants be denied a bill of particulars, and that they proceed to trial on the indictments, without further particulars, notwithstanding the statute providing for such bill of particulars.

In the above case No. 34975, as an example, the indictment in the first count is in the general terms only that Frank H. Kearns, as prosecuting attorney, did accept money to influence him with respect to his official duties; and yet counsel for the State insist that no further particulars are necessary to put the defendant on trial, notwithstanding his request for a bill of particulars under the statute authorizing such bill of particulars.

To hold that the indictment in the foregoing case is sufficient, notwithstanding the réquest for particulars, would make a mockery of the constitutional right of the accused to be advised in the indictment of the nature and cause of the accusation he is expected to meet. Section 10, Article I, of the Ohio Constitution.

“ ‘The nature and cause of the accusation’ are not sufficiently stated to enable the accused to know what he might be expected to meet upon the trial; and it is neither consistent with general principles nor constitutional safeguards, to allow a man to be thus put to trial upon a criminal charge in the dark.” Ranney, C. J., p. 285, case of Bellingham v. State, 5 Oh St 280.

“9. A high, technical degree of certainty in stating an offense in an indictment never was required in Ohio. ‘Certainty to a common intent’ has been the rule since 1853. (Stoughton and Hudson v. State, 2 Oh St, 562, approved and followed.)

“10. ‘Certainty to a common intent’ means that ‘a criminal charge should be preferred with such certainty and precision as will reasonably apprise the party charged of that which he may expect to meet and be required to answer, and so that the court and jury may know what they are to try and the court may determine without unreasonable difficulty what evidence is admissible; also that the record to be made will be sufficiently definite to make it clear of what the party has been put in jeopardy.’ (Du Brul v. State, 80 Oh St, 52, approved and followed.)” Whitmore, supra.

The Court, therefore, renews its order in the foregoing cases that counsel for the State furnish the defendants a bill of particulars in each of the foregoging cases in accordance with §2941.07 R. C.


text:
    STATE, ex rel. SHEPPARD, Plaintiff-Relator, v. BARBER, Defendant-Respondent.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23290.
    Decided August 6, 1954.

      Corrigan, McMahon & Corrigan, Cleveland, for plaintiff-relator.
    Richard S. Weygandt, Cleveland, for defendant-respondent.
    (HUNSICKER, J, of the 9th District, sitting by designation in the 8th District for SKEEL, J.)
   OPINION

Per CURIAM:

This is an original action filed in this Court wherein a Writ of Prohibition is sought to prevent the President of Council of the City of Bay Village from proceeding to conduct a preliminary hearing in the matter of The State of Ohio v. Dr. Samuel H. Sheppard, who is charged with murder in the first degree.

The city of Bay Village adopted a Charter effective from and after January 1, 1950. The provisions of such Charter which are applicable herein are:

Article II, Section 2.6 President of Council—Duties

The President of Council shall have all the powers, duties, functions, obligations and rights of any other member of Council, and in addition thereto, he shall preside at all meetings of council, and when the Mayor is absent from the municipality or unable for any cause to perform his duties, the President of Council shall become the acting Mayor and, during such periods, shall have the same powers and perform the same duties as the Mayor. (Emphasis ours.)

and

Article III, Section 3.4 Judicial Powers.

The Mayor shall have all the judicial powers granted by this Charter, the ordinances of the municipality and the general laws of Ohio to mayors of municipalities of the class of this municipality.

There can be no question raised as to the authority of the one lawfully exercising the functions and position of Mayor of.the City of Bay Village to act as a Magistrate and to conduct a preliminary hearing provided for under the general laws of the State of Ohio.

The fact that the President of Council seeks now to exercise those functions is being challenged by this application for a Writ of Prohibition.

The Supreme Court of Ohio in the case of State, ex rel. Cherrington, Pros. Atty. v. Davis, 113 Oh St 318, held that judicial power of a mayor in a city that has adopted a charter can only arise where such power is especially preserved in the charter.

According to the provisions of the Charter of the City of Bay Village, the President of Council may exercise such judicial power “* * * when the mayor is absent from the municipality or unable for any cause to perform his duties * *

It is stipulated in this case that the Mayor of the City of Bay Village is a material witness in the case of The State of Ohio v. Dr. Samuel H. Sheppard. Does such fact make him “unable for any cause to perform his duties?” We think so. The very nature of the judicial office, in the opinion of the members of this Court, preclude one who is a material witness in a case from sitting as an impartial judge. The recently adopted Canons of Judicial Ethics indicate the conduct that a judge should display not alone in the trial of a case but to the public generally.

There is a specific statute (§1911.68, §1907.43 R. C.) that applies to Mayor’s Courts, which statute disqualifies a mayor from presiding at a trial of a matter where he is a material witness for either party.

By the adoption of this statute, the policy of the State of Ohio with respect to the desire for impartial judges and judgments free from bias and prejudice was clearly indicated.

Since the Mayor was thus disqualified in the instant case and consequently unable to perform his duties in relation to these proceedings, the President of Council became the Acting Mayor with the same powers as the Mayor of the City of Bay Village possessed under Article III, Section 3.4 granting judicial power.

The Writ of Prohibition must be used with great caution and forbearance, in the furtherance of justice, and for securing order and regularity in all the tribunals where there is no other regular and ordinary remedy.

We are of the opinion that it must be refused in this case for the further reason that the Relator herein sought a Writ of Habeas Corpus in the Court of Common Pleas of Cuyahoga County which essentially raised the same basic question presented in this cause—the power of the President of the Council of the City of Bay Village to act as a magistrate under the circumstances.

A Writ of Prohibition cannot be resorted to where another adequate remedy exists to correct a grievance. The State, ex rel. Nolan, v. ClenDening, et al, 93 Oh St 264: Syllabus 2.

“2. The Writ of Prohibition is a high prerogative writ, to be used with great caution in the furtherance of justice and only where there is no other regular, ordinary and adequate remedy.”

For the reasons above stated, the Writ of Prohibition will be denied. Exceptions given.

HURD, PJ, KOVACHY, J, HUNSICKER, J, concur.