author: By MATTHEWS, J.:

text:
    VANDERVORT et, Plaintiffs-Appellants, v. SISTERS OF MERCY OF CINCINNATI, an Ohio Corporation, Defendant-Appellee.
    Ohio Appeals, First District, Hamilton County.
    No. 7681.
    Decided December 29, 1952.
    Louis J. Schneider, Jr., Cincinnati, for plaintiffs-appellants. Wm. J. Damerell, Cincinnati, for defendant-appellee.
   OPINION

By MATTHEWS, J.:

This is an appeal on law and fact from a judgment rendered by the Court of Common Pleas of Hamilton County, Ohio. It is an action to enjoin the use as a parking lot of certain premises in the Village of Mariemont.

The defendant owns tracts of real estate in said Village designated as parcels 88, 103, and 122. There is located on parcel 103 a hospital with a capacity of 55 beds and as an accessory to the hospital there is a parking lot on said parcel. Because of the alleged inadequacy of the parking lot to serve the present needs of the hospital and to provide for an increase in the capacity of the hospital, it is now proposed to enlarge the parking lot and that gave rise to this controversy.

In 1942 the Council of the Village passed a comprehensive zoning ordinance covering the entire Village. The whole of parcel 103 was classified as “Residence B” property by the terms of this ordinance. About three months thereafter the defendant acquired title to parcels 88, 103 and 122, and commenced operating a hospital in the building on parcel 103 which had been built some time previously and designed for hospital use, but had not theretofore been so used. The hospital has been in continuous operation since the property was acquired by the defendant.

On June 28th, 1948, on the petition of the defendant the Council of the Village passed an ordinance amending the zoning ordinance of 1942 by transferring a strip 75 feet wide immediately within the perimeter of parcels 88, 103 and 122 from “Residence B” zone to “Residence A” zone, and other parts of defendant’s property was transferred to Zone “B.” The record fails to disclose any specific reason assigned by the Village Council for the transfer.

The defendant plans to use for parking lot purposes about 650 feet of that strip of parcel 103, and has graded or is in the process of grading and leveling it so that it will accommodate 100 automobiles. The tract is contiguous to the lots of some of the plaintiffs.

It is not disputed that a parking lot of this size and for this purpose would be a non-conforming use in “Residence A” zone. The defendant sought relief from the restriction under the hardship provision of the zoning ordinance.

Empowered by §4366-11 GC, the Council in the Zoning ordinance created the positions of building commissioner and planning commission, and delegated to the latter by paragraph 8 of Section 304-1 thereof the power to relieve against undue hardship in its application by modifying its strict application or by interpreting its meaning.

“Where the strict application of any provision of this ordinance would result in undue hardship upon the owners of specific property, or where there is a reasonable doubt as to any provision of this ordinance so as to relieve such hardship; provided that such modification and interpretation shall remain in harmony with the general purpose and intent of this ordinance, so that the public health, safety, convenience, comfort, prosperity and general welfare will be conserved and substantial justice done.”

The general administration and enforcement of the zoning ordinance and building code was delegated to the commissioner of buildings and provision was made for appeals from his decisions to the planning commission. We have not been cited to and have not found any provision authorizing action by the planning commission other than by appeal from rulings by the building commissioner.

Without applying to the building commissioner for a permit and without giving any sort of notice, the defendant seems to have sought the advice of the planning commission on June 4th, 1946. At any rate the matter was discussed on that date. Sometime prior to July 3rd, 1951, the defendant addressed a letter to the planning commission in which the subject was brought to its attention again. As a result, the planning commission on that date passed a resolution in which it was recited that the expansion of Our Lady of Mercy Hospital had long been contemplated and the zoning ordinance amended with that in mind, that adequate parking facilities were a necessity and the ordinances required off-street parking facilities, that the zoning ordinance does not give off-street parking authority in either “Residence A or Residence B zone,” that the topography of defendant’s property limits the available parking space to the strip in question, and after this recital the planning commission resolved to and did approve “The establishment of a parking lot to accommodate 100 automobiles as shown by a drawing presented by defendant’s representative “providing that reasonable standards of paving and landscaping are provided under authority of Section 304-1 (8).”

It is this approval by the planning commission which defendant presents as its authority to use this space for parking purposes. It is conceded that establishment of a parking lot of this character is a non-conforming use in “Residence A” zone.

Governmental restrictions upon the use of property can find constitutional authority only in the exercise of the so-called police power, that is, in the just power of the sovereign to pass all manner of laws to promote the public safety, the public health, the public morals, the general welfare and prosperity of the public. It is not sufficient for the law-making power to declare that it is legisláting to promote one or more of those objects. The law must in fact have some reasonable relation to one of those objects. If it has no such relation, it constitutes an arbitrary exertion of governmental power and violates the “due Process” provisions of the Federal and State Constitutions.

Assuming that a subject comes within the police power of the government, the determination of whether regulatory rules shall be enacted and their nature is a matter of policy confided by the Constitution to the law-making department of government; that is, the General Assembly for the State, and the council for the villages. And the authority thus confided cannot be delegated.

In Clifton Hills Realty Co. v. Cincinnati, et al., 60 Oh Ap, 443, we were called upon to determine the power to enact and amend zoning ordinances under the Constitution. In doing so. we set forth at some length our views on the general subject. We think the views there expressed are supported by the cases then decided as well as the later cases. See: Eggerbeen v. Sonnenberg, 138 A. L. R. 495 at 500, et seq. We shall not discuss the subject here.

We, therefore, conclude that if the use of this strip for parking purposes was a matter of policy, the Village council could not delegate to the planning commission the determination of that question. If it was not a matter of policy, but was only its application to the subject-matter of the policy predetermined by council then the power could be delegated to the planning commissioner or any other administrative officer or body. However, if the authority was properly delegated to the planning commissioner, his action must be taken in the form and manner prescribed by the delegating instrument, that is, in accordance with the zoning ordinance in this case.

It appears to the Court, however, that use of this strip for parking purposes would not be a minor change made necessary in the application of the “undue hardship” provision, but rather would serve to reverse and nullify almost' the whole of the amended ordinance.

Even assuming it comes within the “undue hardship” provision, the Planning Commission was unauthorized by the zoning ordinance for two reasons, viz: There was no action by the Building Commissioner from which an appeal to the Commission was taken, which was a prerequisite, and no notice of the hearing was given, which was required by the ordinance and also by due process.

It, therefore, appears that a case for injunctive relief has been established and a decree may be presented in accordance with this opinion.

HILDEBRANT, PJ, MATTHEWS, J, concur.


source: Caselaw Access Project

author: By THE COURT.

license: Public Domain

text:
    BLAKE, Plaintiff-Appellant, v. HANSLEY et, Defendants-Appellees.
    Ohio Appeals, Second District, Franklin County.
    No. 4589.
    Decided October 4, 1951.
    R. Rush Warren, Columbus, for plaintiff-appellant.
    Carl W. Lortz, Columbus, for defendants-appellees.
   OPINION

By THE COURT.

This is a law appeal from the judgment of the Common Pleas Court rendered upon the verdict of the jury.

The errors assigned are:

“(1) The court erred in overruling the appellant’s motion for a new trial on the basis of newly discovered evidence, for the reason that the same is cumulative.
“(2) The court erred in giving the following special instruction before argument:
“Members of the Jury ... I charge you that if the defendants’ cab was travelling on Skidmore Street in a lawful manner, then it had the absolute right of way, and the plaintiff was negligent in failing to yield the right of way to the automobile of the defendants, and under these circumstances, it would be your duty to render a verdict for defendants.”

Counsel are in agreement that the newly discovered evidence relates to the same point, but appellant urges that it is of a different probative value; that all of the evidence on the point in question was given by interested parties and that the newly discovered evidence would be given by a disinterested witness and that it would therefore not be cumulative to former evidence. Our Supreme Court has held that one is not entitled to a new trial under §11576 GC when the additional evidence would be merely cumulative. Sheen v. Kubiac, 131 Oh St 52. The question then presented is whether or not the alleged newly discovered evidence is cumulative.

In Kroger v. Ryan, 83 Oh St 299, cumulative evidence is defined as “Additional evidence of the same kind to the same point.” It is urged by the appellant that the new evidence is not of the same kind as that offered at the trial by the plaintiff’s two witnesses because they were interested in the outcome of the case, being the plaintiff and his son, and that the new evidence would be by a disinterested witness. It will be noted that the son is not a party to the action, so his interest would be indirect, if at all. We are of the opinion that the record supports the trial court’s ruling that the newly discovered evidence was merely cumulative.

A further reason for supporting the court’s ruling on the motion is that one of the requirements for the granting of the same is that the newly discovered evidence must be such as would probably change the result if a new trial were granted. Sheen v. Kubiac, supra. Whether or not such would be the result rests within the sound discretion of the trial court.

In the case of Smith v. Bailey, 26 Oh St 1, the court held that a refusal of a new trial upon newly discovered evidence will only be reversed for manifest error or abuse of discretion. We find neither of such in the case at bar.

The second assignment of error is not well made for two reasons, first, no objection was made to the special instruc-tion as given, an exception being noted only as to the general charge, and which does not include the special instructions given before argument; Kennard v. Palmer, 143 Oh St 1; second, the error, if any, was one of omission and not commission and no request being made for the court to supply the omission, such error would not justify a reversal. State v. Tudor, 154 Oh St 249.

Finding no error in the record, the judgment is affirmed.

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


author: By MILLER, J.

text:
    LEACH, Plaintiff-Appellant, v. JOYCE PRODUCTS COMPANY, Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 4718.
    Decided March 13, 1952.
    Otis C. Buchanan, Robert H. Van Gundy, Columbus, for plaintiff-appellant.
    Bricker, Marburger, Evatt & Barton, Robert L. Barton, of Counsel, Columbus, for defendant-appellee.
   OPINION

By MILLER, J.

This is a law appeal from the judgment of the Common Pleas Court sustaining the motion for a directed verdict at the close of the plaintiff’s case. The action was one for damages arising out of the explosion of a bottle of “Seven Up,” a carbonated beverage. The petition alleges that while the plaintiff was engaged in the employment of the Deshler-Wallick Hotel as a bartender, he was injured by several pieces of pointed glass as the result of an explosion of a bottle of Seven Up; that the bottle was in a case which was piled on top of several other cases; that as he was reaching for one of said bottles the explosion occurred causing the injuries complained of.

The petition alleges further that the defendant manufactured the said bottle and at all times had complete and exclusive control of the same; that it was a carbonated beverage charged with carbon dioxide gas which exerts an exploding pressure upon the bottle in which it is confined, and that all the facts and circumstances of and concerning the manufacture and bottling of said beverage are peculiarly and exclusively within the knowledge of the defendant.

The record reveals that the defendant is the sole manufacturer of Seven Up in Franklin County wherein the injury occurred, and in many of the surrounding counties; that the product is sold through distributors and that the one serving the Deshler-Wallick Hotel was one Thomas J. Donovan, who testified that he was an independent contractor selling Seven Up to the said hotel on or about the date of the injury.

The record also discloses that after such products are received by the hotel they are handled by several of its employees before reaching the bar room and this plaintiff. The record fully reveals the usual course of the business in the handling of beverages when received by the hotel, but there is not a scintilla of evidence concerning the manner or degree of care exercised by the distributor Donovan or hotel employees in the handling of this particular bottle or the consignment of which it was a part. There was therefore no proof offered tending to establish that the bottle was in the same condition at the time of the explosion as it was when it left the control of the defendant. It was for this reason that the trial court sustained the defendant’s motion.

In its well expressed opinion the Court reviewed many of the leading Ohio authorities. We are of the opinion that the trial Court applied the proper legal principles in sustaining the motion. It is conceded by all parties concerned that the doctrine of res ipsa loquitur is applicable to carbonated beverage explosion cases, and the weight of authority in this state seems to even hold that it is not necessary that the defendant have exclusive possession and control of the bottle before the principle becomes effective, but before the doctrine can be invoked the plaintiff must produce some evidence from which the inference could be drawn that the particular bottle or consignment of which it was a part was handled in a reasonably careful manner at all times after it left the possession and control of the defendant. When this is done the fact is established that the bottle was in the same condition at the time of the explosion as when it left the control of the defendant. In other words, before the plaintiff may recover it is necessary that there be some evidence from which the inference could be drawn that the negligent act which caused the explosion occurred while the bottle was in the possession and control of the defendant. The appellant urges that he meets these requirements by showing the various departments or hotel employees handling the bottles in the regular course of business, but this is not sufficient. There must be a further showing that ordinary care was exercised at all times in the handling by those in possession, after leaving that of the defendant.

The Supreme Court of Ohio has stated the general rule of the doctrine of res ipsa loquitur in Renneckar v. The Canton Terminal Restaurant, Inc., 148 Oh St 119. The syllabi of this case are as follows:

“1. Res ipsa loquitur is a rule of evidence which permits, but does not require the jury to draw an inference of negligence in a case where the instrumentality causing injury is shown to have been within the exclusive control and management of the defendant, and where the circumstances attending the injury were of such a character in themselves as to warrant the conclusion that a lack of ordinary care on the part of the defendant was responsible for the occurrence or condition causing the injury.
“2. Res ipsa loquitur does not apply to a situation in which an injury occurs as the result of the displacement of a manhole cover located in a public sidewalk over premises subleased to a defendant, where there is no showing that such defendant was in exclusive control of the cover, had made use of it, had notice of the displacement, and where it is apparent that the displacement could have been due as well to the intervention of an outside force or of a third person as to any negligence of the defendant.
“3. In such circumstances, evidence of negligence on the part of the defendant must be adduced and in the absence of such evidence the defendant is entitled to a directed verdict in his favor upon motion therefor.”

In the case of Curtis v. Akron Coca-Cola Bottling Co., 31 Abs 546, we And further expression concerning the burden of proof required of a plaintiff to establish a case of res ipsa loquitur against a bottling company. In this case one of the claims of negligence was that the defendant excessively charged a Coca-Cola bottle with carbon dioxide gas causing it to later explode. On page 547 the Court said that the plaintiff not only failed to prove the above allegation but also failed to remove the possibility that third persons were negligent.

“There is no evidence contained in this record to substantiate said allegations of negligence unless the mere fact of explosion warrants the application of the doctrine of res ipsa loquitur, which claim is not urged by appellant. There is a complete silence in the record as to the cause of the explosion of the bottle from which plaintiff’s injuries resulted; and where all of the facts connected with the accident fail to point to the negligence of the defendant as to the proximate .cause of the injury, but show a state of affairs from which an inference could easily be drawn that the accident was due to a cause or causes other than the negligent act of the defendant, the plaintiff cannot rely upon mere proof of the surrounding facts and circumstances, nor is the defendant called upon to explain the cause of the accident or to purge itself of the inferential negligence.”

Another recent Ohio case, Fick v. Pilsener Brewing Co. (1948), 39 O. O. 158, (Affirmed by Court of Appeals, March 4, 1949) stated the extended rule of res ipsa loquitur on page 159: “Where an explosion of a bottle of carbonated beverage injuries a person and the evidence negatives any reasonable inference that the explosion was caused by the plaintiff or anyone else who handled the bottle after it left the control of the manufacturer, both logic and experience support a rebuttable inference of negligence by the manufacturer while the bottle was in its possession and control.”

In the Fick case the plaintiff met the burden of proof, which the Court specially noted on page 158:

“The evidence discloses that the offending bottle of beer and the case in which it was delivered received no jar, impact, or rough or unusual handling from the time of the delivery to the cafe until and including the time of its explosion.”

The appellant urges also that the defendant violated the Pure Food Law which bans and punishes the sale of adulterated food or drink and that the Court erred in not submitting the case to the jury on the theory of implied breach of warranty of merchantability under §8395 GC, but we find no evidence in the record to establish the plaintiff’s contention. The plaintiff has the burden of proving this violation and. which he has attempted to do only through the doctrine of res ipsa loquitur. In this he has failed and therefore the Court did not err in refusing to apply the breach of warranty doctrine. In the absence of evidence as to the cause or the responsibility of the explosion it is not proper for the jury to speculate on whether or not there was a breach of warranty. Curtis v. Akron Coca-Cola Bottling Co., supra. At page 548 the Court says:

“Assuming, however, that the warranty of merchantability did attach to both the bottle and its contents here again there was a complete failure to produce evidence of probative value indicating a lack of merchantable quality of the bottle or the contents thereof, or, if there was such lack, that it proximately caused the explosion of the bottle.”

The other errors assigned relate to the admission and rejection of testimony which we find are not well made.

Finding no error in the record, the judgment will be affirmed.

HORNBECK, PJ, WISEMAN, J, concur.


author: By NICHOLS, PJ.

text:
    STATE ex rel. GELETKA v. CITY OF CAMPBELL et al.
    Ohio Appeals, Seventh District, Mahoning County.
    Decided January 30, 1952.

      Joseph E. Julius and William P. Barnum, Youngstown, for relator-appellant.
    Paul R. VanSuch, City Solicitor of Campbell, Youngstown, for respondents-appellees.
   OPINION

By NICHOLS, PJ.

This action originated in the Common Pleas Court of Ma-honing County, Ohio, wherein the relator, John Geletka, sought a peremptory writ of mandamus to compel the City of Campbell, and its Building Inspector, the officer authorized to issue building permits, to issue to him a permit for the construction of a one floor store building on premises owned by him at the corner of Oxford and Robinson Streets in Campbell. The cause is now in this Court on appeal on questions of law from the decision of the Common Pleas Court denying the writ on final hearing, an alternative writ having previously been granted.

As shown by the Bill of Exceptions duly filed herein, the relator on October 3, 1950, as well as on October 6, 1950, and at the time of the judgment or decision appealed from, was the owner of the real estate located and described in the petition. On the two specific dates mentioned there was no zoning ordinance in effect in the City of Campbell, a previous zoning ordinance having been declared invalid by the Common Pleas Court. On the dates first above set forth the relator presented to the Building Inspector plans and specifications for a one floor store building and requested a permit for its construction on the lot or land owned by him. The Building Inspector refused to grant such application, although the undisputed evidence shows that such plans and specifications were in conformity to the State and City Building Codes in force at the time. From the evidence the conclusion is inescapable that the Building Inspector refused to issue the permit for the sole reason that the applicant refused to submit the plans and specifications to the Zoning Commission or Planning Committee provided for in the Zoning ordinance which had been declared invalid, in which invalid ordinance the Inspector claimed that plaintiff’s lot was in Residence A District, the Inspector testifying, “I could not issue until the planning committee had approved,” meaning either the planning committee which had been provided for in the invalid ordinance, or perhaps, a planning committee to be provided for in a contemplated new zoning ordinance.

We hold the Relator properly refused to recognize the existence of a planning committee and relied on this claimed right to the permit upon application to the Building Inspector and presentation to him of lawful plans and specifications for the building, such inspector being the officer then authorized to issue building permits.

On September 30, 1950, the court of Common Pleas made public its decision finding the 1939 zoning ordinance of the city invalid, the formal journal entry of its decision being filed October 23, 1950.

On September 30, 1950, the city council published its thirty day notice, as required by §4366-11 GC, of a public hearing to be held October 31, 1950, as to a proposed new zoning ordinance.

On October 25, 1950, Relator filed this mandamus action in the Common Pleas Court, an alternative writ being then allowed and the final hearing date for the issuance of a peremptory writ was set for November 1, 1950. The proposed ordinance of which the published notice was given did not then contain an emergency clause, but a special meeting of council was called for October 31, 1950, at which meeting a purported emergency clause was inserted in the ordinance and the ordinance was on that date attempted to be adopted by council as an emergency ordinance to go into immediate effect, wherein it sought to place relator’s lot in Residence A District.

In denying the writ of mandamus in this action the Common Pleas Court relied upon Trumbull County Board of Education v. State ex rel Van Wye, 122 Oh St 247, 171 N. E. 241, and State ex rel. Hawke v. Weygandt, 148 Oh St 453-455, 75 N. E. 2d 691, and cases therein cited, holding:—

“When a court is asked to exercise the extraordinary power of mandamus, it is not limited to a consideration of the facts and conditions as they existed at the time the proceeding was initiated, but should take into consideration the facts and conditions existing at the time it determines whether a peremptory writ should issue.” (122 Oh St 247, 171 N. E. 242.)

The trial court then considered as a “fact and condition” the action of the council in adopting the new zoning ordinance placing relator’s property in Residence A Zone, the court holding that the new ordinance was duly and properly adopted by council as an emergency measure, thereby forbidding the issuance of a building permit for the type of building sought to be constructed by the Relator.

Two principal questions arise upon this appeal:

1. Was the so-called emergency ordinance wherein Relator’s lot was zoned as Residence A, a valid emergency measure at the time of the final hearing in the Common Pleas Court?

2. If the so-called emergency ordinance was a valid emergency measure, adopted in accordance with §4227-3 GC, could it have retroactive force to prevent Relator from the use of his property for any lawful purpose for which he had a right to use it at the time his application for the building permit was made?

The question of the right of a city to adopt a zoning ordinance for the preservation of the public peace, health or safety in such municipal corporation is well settled. And likewise it is well settled that such zoning ordinance may be adopted as an emergency measure necessary for the immediate preservation of the public peace, health or safety in such municipal corporation, and will go into immediate effect provided the requirements of §4227-3 GC, are complied with, one of the provisions of that act being that the “reasons for such necessity” be set forth in a separate section of the ordinance or measure.

As stated above, the zoning ordinance proposed and as to which the notice was published, did not contain any emergency clause until the special meeting of council held October 31, 1950. At that meeting a separate section was inserted in the ordinance before its passage, in which separate section it was stated as follows:

“This ordinance is and the same is hereby declared to be an emergency measure, the emergency being the immediate necessity of regulating the location, character and kind of buildings and to prevent and regulate the construction of the buildings and structures in location not adaptable to the proposed type of building and structure; to prevent and regulate the erection of structures which will imperil the safety, health, comfort, prosperity and general welfare of the citizens of the City of Campbell, Ohio, and to regulate the uses of such structures in defined areas of said City and for the immediate preservation and maintenance of the public peace, health and safety of the inhabitants of said City and the public generally and to adequately regulate and control the erection and location of structures and their uses in said municipality and to safeguard the public from incidents dangerous thereto.”

Heretofore this court of appeal had under consideration an ordinance of the City of Youngstown, known as the suspicious persons ordinance, wherein the language used in the separate section of the ordinance stated that its adoption was necessary for the immediate preservation of the public peace, health and safety of the city, but no reason was given for such necessity requiring its going into immediate effect. This court consistent with its former decision in Goodman v. City of Youngstown, 24 Abs 696, held the ordinance invalid and the Supreme Court agreed as will appear from the first three paragraphs of the sjllabus in the case of City of Youngstown v. Aiello, 156 Oh St 32, 100 N. E. 2d 62, 63:

“1. Under the provisions of §4227-3 GC, relating to the manner of the exercise of the power of the referendum, ‘emergency ordinances or measures necessary for the immediate preservation of the public peace, health or safety in such municipal corporation’ go into immediate effect when enacted in accordance with the procedure prescribed by such section.
“2. The procedure prescribed by §4227-3 GC, that ‘such emergency ordinances or measures must, upon a yea and nay v'ote, receive the vote of two-thirds of all the members elected to the council * * * of such municipal corporation, and the reasons for such necessity shall be set forth in one section of the ordinance or other measure,’ is mandatory, and the failure to comply with such requirements in the enactment of an ordinance, purported to be an emergency measure, prevents such ordinance from taking immediate effect, as therein authorized.
“3. A separate provision of an ordinance, ‘that this ordinance is hereby declared to be an emergency measure necessary for the preservation of the public peace, health and safety, and shall take effect upon its passage and approval by the mayor,’ which ordinance was adopted by a vote of two-thirds of all the members elected to council, is ineffective to constitute the ordinance an emergency measure, where the reasons for the necessity are not announced and set forth in the emergency section of said ordinance, as required by §4227-3 GC.”

In the opinion, 156 Oh St, at page 37, 100 N. E. 2d at page 65 will be found the following: by the courts, it is mandatory that the legislative body must consider, determine and announce the reasons for such necessity and that the same be set forth in one section of the ordinance or other measure.

“However, it is essential to the validity of such measures as emergency measures that the mandatory requirements specified be adhered to and followed, among which is that ‘the reasons for such necessity shall be set forth in one section of the ordinance or other measure.’ Although the finding of the emergency character of the proposed legislation and the determination of the legislative body as to the necessity that such legislation go into immediate effect and the reasons announced therefor are not subject to review
“In the respect indicated, the requirement of the statute essential to the enactment of this ordinance as an emergency measure, permitting it to go into immediate effect, was not followed. It, therefore, lacked validity as an emergency enactment.” #

In that case this court also held that the ordinance did not become effective as a valid ordinance of the city because it had not been published in accordance with the requirements of the city charter. We were induced to that holding because counsel for the city, upon inquiry from the bench at the hearing of the appeal, informed the court that the ordinance had not been published. However, the Supreme Court evidently found that such admission of counsel did not constitute evidence of failure to publish and it thereupon indulged an assumption that it had been published and became effective before defendant was charged with violation thereof.

We refer to that case for two reasons: first it is definite authority for our finding in this case that no reason for the necessity of this zoning ordinance to go into immediate effect is set forth in the quoted separate section of the ordinance, and, second, that it had not otherwise become a valid ordinance of the city before the date of the final hearing in this mandamus action, because it had not then been published as required by law, and the ordinance was, therefore, not a fact or condition to be considered by the trial court (and there being no other fact or condition shown by the evidence), it follows that Relator’s right to the building permit was to be determined by the facts and conditions existing at the time he made such application, the evidence showing his clear right thereto at that time.

It may be presumed that every ordinance adopted by the council of a city or village is necessary for the benefit of the municipality and its inhabitants, but if it is intended to adopt such ordinance in a form which will prevent a referendum thereon, the ordinance must comply strictly with the provisions of §4227-3 GC, by stating in a separate section therein the reason — the emergency then existing — which requires it to go into immediate effect for the preservation of the public peace, health or safety; it is not enough to merely state the conclusion that it is necessary for the immediate preservation of the public peace, health, or safety.

We do not disagree with the trial court in the statement in his opinion to the effect that the city was faced with an emergency due to its previous zoning ordinance having so soon theretofore been invalidated, and it is conceivable that fact may have been stated in the separate section of the ordinance and with other facts in connection therewith, would have complied with the provisions of §4227-3 GC as to reason for the ordinance going into immediate effect, with which reason so stated the courts could not have interfered — but no such reason, or any other, was set forth in the separate section of the ordinance. It is not enough that facts constituting a good reason actually exist — they must be stated in the separate section of the ordinance to constitute compliance with the legislative requirements.

We regret that we must further disagree with the trial court as to the applicability to this case of the authorities relied upon, as set forth in his opinion. None of the cases cited involved the right of council to pass legislation of a retroactive character depriving an owner of the constitutionally guaranteed right to own and use his property for a lawful purpose.

The question presented here is whether relator, at the time he instituted this mandamus action, which was before the zoning ordinance was attempted to be enacted, was then entitled to the writ prayed for. Any action of the council thereafter taken cannot serve to defeat that right or affect the jurisdiction of the court to grant the remedy to which the relator was then entitled for the preservation of his right of property as guaranteed by the Constitution of the United States, Amend. 14, as well as the Constitution of the State of Ohio, Art. 1, Sec. 1. See: Hauser v. State ex rel. Erdman, 113 Oh St 662, 150 N. E. 42; State ex rel. Gaede v. Guion, 117 Oh St 327, 158 N. E. 748; State ex rel. Ice & Fuel Co. v. Kreuzweiser, Inspector of Buildings, 120 Oh St 352, 166 N. E. 228; Bauman v. State ex rel. Underwood, 122 Oh St 269, 171 N. E. 336; State ex rel. Fairmount Center Co. v. Arnold, Director of Service, 138 Oh St 259, 34 N. E. 2d 777, 136 A. L. R. 840; State ex rel. Castle National Inc. v. Village of Wickliffe, Oh Ap, 80 N. E. 2d 200, a decision of this Court of Appeals, and State ex rel. Gulf Refining Co. v. De France, 89 Oh Ap 1, 100 N. E. 2d 689.

The judgment and decision of the Common Pleas Court must be reversed because contrary to law and final judgment entered herein granting the writ of mandamus.

GRIFFITH and PHILLIPS, JJ, concur.


author: By HORNBECK, PJ:

text:
    MILLER, Plaintiff-Appellant, v. SCOTT, Defendant-Appellee.
    Ohio Appeals, Second District, Montgomery County.
    No. 2196.
    Decided November 20, 1952.
    Nolan, Boesch & Wolff, Harold L. Shellenberger, Dayton, for plaintiff-appellant.
    Harold F. Demann, Mason Douglass, Dayton, for defendantappellee.
   OPINION

By HORNBECK, PJ:

Upon this appeal on questions of law appellant assigns three grounds of error. One, the overruling of plaintiff’s motion for new trial and motion for judgment notwithstanding the verdict. Two, that the judgment is contrary to law and three, other errors apparent on the face of the record.

Plaintiff’s cause of action was for $500.00 claimed to be due from defendant by reason of his breach of contract between them. Defendant answered denying the contract as averred in the amended petition and cross-petitioned praying for damages on the contract between the parties as asserted in the answer and in the cross-petition. The plaintiff replied denying all new matter set up in the cross-petition. The cause was tried to judge and jury and the jury returned one of the forms of verdicts submitted to it, the substantial parts of which was a finding:

“Upon the issues joined between the Plaintiff and Defendant upon the matter set out in the Plaintiff’s petition, in favor of the Plaintiff, and that there is due to the Plaintiff from the Defendant, the said Melvyn A. Scott the sum of Five Hundred ($500.00) Dollars, etc.”

A further finding:

“Upon the issues joined between the Defendant and the Plaintiff upon the matters set up in the Defendant’s answer and cross-petition in favor of the Defendant, and that there is due to the Defendant from the Plaintiff, the said Norman Miller, the sum of $2650.00 Dollars. We find, therefore, that there is due from the Plaintiff the said Norman Miller, to the Defendant a balance in the sum of Two Thousand Seventeen and 50/100 Dollars.”

We examine the amended petition, answer and cross-petition to define the specific issues drawn between the parties. In the amended petition plaintiff says that:

“Subsequent to June 10, 1945, he assumed the verbal agreement entered into by and between plaintiff’s brother and the defendant, Melvin A. Scott, by the terms of which plaintiff agreed to advise and consult with the defendant during the period that the defendant was constructing a residence for himself on Lot” described. “Defendant was to pay for all materials used and labor furnished in the constructing of said residence and was to pay plaintiff for his services as adviser and consultant the sum of One Thousand ($1,000.00) Dollars, Five Hundred ($500.00) Dollars of said sum to be paid at the time of the plastering of said residence and the balance of Five Hundred ($500.00) Dollars to be paid upon completion of the construction.” (Emphasis ours.)

The prayer was for the $500.00 balance of the contract price claimed to be due. The answer “denies that the plaintiff assumed an agreement of his brother to advise and consult with the defendant, Melvyn A. Scott, in reference to the construction of a house; denies that there was any contract with the plaintiff or his brother limited to advice and consultation; denies that the defendant was engaged in constructing a residence for himself; admits that the defendant was to pay for materials used and labor performed in the construction of a residence for the defendant; denies that he was to pay the plaintiff the sum of $1000.00 for his services as an advisor and consultant, and specifically denies that there was any contract at any time under which the services of the plaintiff were limited in reference to the construction; admits that he paid the plaintiff $500.00; admits that he has refused to pay plaintiff the further sum of $500.00 and denies that any sum of money whatsoever is due and owing to the plaintiff.”

“Further answering, defendant avers that plaintiff assumed the performance of the oral agreement entered into between this defendant and plaintiff’s brother whereby plaintiff’s said brother had agreed to construct a residence and garage upon the real estate described in the amended petition in a workmanlike manner according to the plans and specification therefor and agreed to furnish all labor and materials required in said construction at a price equal to the cost of all labor and material furnished in and for said construction plus a sum of $1000.00. (Emphasis ours.)

“Defendant avers that plaintiff failed and neglected to construct said residence and garage in a workmanlike manner; that the work of construction performed by plaintiff was faulty and defective, as set forth in the cross-petition of the defendant herein, and defendant is not indebted to plaintiff in any amount whatsoever.”

The cross-petition is a substantial re-averment of the second paragraph of the answer in which is set out the contract upon which defendant claims the plaintiff performed the services for which he sued. The cross-petition sets up several specifications wherein it is averred the plaintiff failed to perform his services under the contract in a workmanlike manner. There is a second cause of action in the cross-petition which is not germane to this appeal. The prayer was for $3650.00 the sum total of damages which defendant asserted he had suffered by plaintiff’s breach of contract.

The reply was a denial of the contract as set up in the cross-petition and a denial that the plaintiff is responsible for faulty or defective construction, if any exists, for the reason that the defendant acted in the capacity of employer and general contractor and supervisor in order to curtail expenses.

Briefly, the plaintiff asserts that the contract between the parties was that the plaintiff, assuming a contract theretofore made between plaintiff’s brother and defendant, was to advise the defendant and consult with him in the choosing of materials and in the erection of the dwelling, the subject matter of the contract; that the defendant himself was responsible for the purchasing of the materials and the construction of the dwelling. The defendant, on the other hand, asserts the contract to be that the plaintiff was a general contractor in full and complete charge of construction of the building and that in such relation he was required through his employees to do the work required in a workmanlike manner and that the contract price was the total cost of material and labor plus $1,000.00.

It will be observed that the plaintiff seeks to recover upon the contract as averred and as testified by him. The defendant denies the right of the plaintiff to recover because the contract sued upon was not the contract under which the parties operated. Manifestly, both cannot be correct. The plaintiff, to recover, must have proven that his contract was restricted as pleaded. The defendant, to recover, must prove that the contract was different and more comprehensive than set up by the plaintiff and that it was as pleaded by the defendant in his cross-petition.

The trial judge, instructing the jury as to the issues, properly stated the issues arising under the pleadings and considered only the subject matter involved by the pleadings, but, at the conclusion of the charge and without any statement of any issues which would give rise to the presentation of such a verdict, tendered the form of verdict which the jury adopted and returned.

Motion of plaintiff for judgment notwithstanding the verdict and for new trial were overruled.

The trial judge entered a judgment on the verdict as returned.

Appellee insists that the meaning and intent of the verdict is determinable and that the judgment conforms thereto.

We have examined the pleadings with care and have read most of the record. There would be no necessity of reading the record except that it might disclose that by common consent evidence was offered which was at variance with the theory of either party as set out in their pleadings. The record, however, discloses that the testimony adduced by the respective parties strictly conforms to the averments of their pleadings.

In this situation, although we would give every reasonable intendment to the verdict and judgment we cannot reconcile the verdict with the issues drawn. It is not responsive to the pleadings and may not be reconciled therewith. The verdict insofar as it favors the plaintiff is a finding that upon his claim of the contract he is entitled to a balance of $500.00 on the contract price. On the other hand, the verdict for the defendant is tantamount to an express determination that the controlling contract is as asserted by the defendant. These two conditions cannot obtain. The verdict is specific in that in the finding for plaintiff, it asserts that it is upon the “issues joined between the plaintiff and the defendant on the matter set out in plaintiff’s petition,” and on the finding for the defendant “upon the issues joined between the defendant and the plaintiff upon the matters set up in the defendant’s answer and cross-petition.”

We have examined the many cases cited by counsel for the parties but we find no reason for discussing them because it is conceded by all parties that if the verdict is not consistent with the issues drawn and cannot be reconciled therewith, it may not be supported.

The controlling principles evolved from the cases is found in 39 O. Jur. 1090:

“Although no particular form is required, the verdict of the jury, to serve as a basis for a judgment, should be clear, intelligible, consistent and certain. It should import a definite meaning free from any ambiguity, and should show just what the jury intended, so that the court may ascertain from its terms alone, or from its terms when read in the light afforded by the pleadings of which it is the duty of the court to take judicial notice, what judgment to render.”

The trial judge was of opinion that the verdict might have been predicated upon a quantum meruit allowance to the plaintiff for his services. In no view of the pleadings or the evidence could plaintiff recover as upon quantum meruit because the parties pleaded and the evidence clearly supported an express contract wherein the compensation to be paid for performance was definite, namely: $1,000.00.

The first and second assignments of error are established upon the record and the judgment must be reversed and cause remanded for further proceedings according to law.

WISEMAN and MILLER, JJ, concur.


author: By MONTGOMERY, J.

text:
    STRIETELMEIER et v. ANGELO et.
    Ohio Appeals, Fifth District, Muskingum County.
    Decided December 23, 1952.

      Meyer, Johnson & Kincaid, Zanesville, Henderson & Henderson, Ashland, for plaintiffs-appellees.
    William D. Holliday, Clarence A. Graham, Zanesville, for defendant-appellant, Felix Angelo.
    McAfee, Grossman, Taplin, Hanning, Newcomer & Hazlett, Cleveland, Clarence A. Graham, Zanesville, for defendant-appellant, Harris Coal Corp.
   OPINION

By MONTGOMERY, J.

At the outset the writer of this opinion desires to make an observation. During his twenty-two years upon this Bench, he has passed upon many cases whose problems were more intricate and difficult than those in the instant case, and in which the solutions were more difficult. He cannot recall, however, another case in which the process of arriving at a solution was more laborious. In reading this record the reader is confronted with page upon page of irrelevant and immaterial matter. At times the reading was exacting and even exasperating.

By agreement of the parties, the cause had been submitted to a referee. The bill of exceptions showing the evidence taken before him consisted of 723 pages and more than 30 exhibits. He filed a report with the Court of Common Pleas 82 pages in length. And the court, in rendering judgment, filed a rather long and comprehensive opinion. In this Court there have been submitted briefs aggregating 208 pages.

Whether what follows will have any other merit, it will at least have the merit of relative brevity. We propose to state our conclusions without any detailed argument. Generally speaking the application of the law is not difficult. The facts of course are known to the parties and to their counsel, and a recital of them would be of no interest to anybody else.

This cause has been pending since April 3, 1944. The final judgment in the Court of Common Pleas was rendered on November 7, 1951 and the motions for new trial overruled November 21, 1951. The cause was finally submitted upon the third amended petition the answer of Harris Coal Corporation thereto, the second amended answer and cross petition of the defendant, Angelo, and various answers and replies.

Briefly, the situation is this: In the summer of 1942 Felix Angelo entered into two contracts. One was with the Harris Coal Corporation to sell all coal loaded on railroad cars and produced by Angelo; the second was with the plaintiffs, whereby they agreed to mine coal at a fixed rate for all merchantable coal mined and loaded under the agreement. .

The final claim made against Harris Coal Corporation was that it had become primarily obligated to the plaintiffs. During the hearing of this cause counsel were asked by the writer of this opinion whether or not the only real issue in the case was the claimed primary obligation of Harris Coal Corporation to the plaintiffs. That question was answered in the affirmative. Added to this is the claim under the cross petition of Angelo, and certain legal propositions incidental to the respective claims.

The referee in his finding recommended judgment for the plaintiff against Angelo and judgment on the cross petition for Angelo against plaintiffs in excess of their judgment and found no cause of action against Harris Coal Corporation. The Common Pleas Court overruled this finding and held Harris Coal Corporation primarily liable, made no finding against Angelo, and dismissed his cross petition.

From that order appeal was made to this Court by each of the defendants. The appeals recite that they are on law and fact, but the judgment was one for money only. The appeals as perfected were, with propriety, disregarded by counsel and the cause was submitted as appeals upon questions of law.

Harris Coal Corporation filed an assignment of errors. We cannot find that this was done by Angelo, but his claims are set forth in his brief sufficient to acquaint us with what they may be.

Answering the main question heretofore set forth, we categorically, and without hesitation, hold with the Court of Common Pleas that the obligation was primarily that of Harris Coal Corporation to the plaintiffs and that the judgment against this corporation was correct. That seems to us evident from the credible and direct evidence of the plaintiffs, the admissions of Angelo, the admitted verbal agreement between the three parties as to the handling of the funds, and the conduct of the Harris Coal Corporation as a result thereof, in making all collections and distributions including the direct distribution to the plaintiffs prior to the time of this controversy.

There are eleven assignments of error by the Harris Coal Corporation, all of which have been considered, but most of them are disposed of in the disposition of the general question as to whether or not the judgment below was right, or was manifestly against the weight of the evidence, and this we have already answered.

It is contended in one assignment of error that there is a fatal variance in the pleadings, in that the action started originally as one at law, was shifted to one in equity, and wound up finally as an action at law. We find no fatal variance. The essential claims of the parties were not changed. They were in no sense prejudiced by this apparent change. Justice was done.

It is urged that the trial court had no authority to reverse the referee on the ground of the weight of the evidence, because the report of the referee is similar to a finding of the jury, and it could not be determined from a reading of the record that the judgment of the referee was against the weight of the evidence. Reliance is placed upon certain reports in the Court of Appeals, and its predecessor, which might tend to sustain this contention. These cases to which we make reference are: Cincinnati & Eastern Railway Company v. Ritty, 21 Ohio Cir. Ct., N. S., 568; Kuerze v. Western German Bank, 12 Oh Ap 412 at page 419; Caple v. Crane, 13 Oh Ap 317.

Two of these cases went to the Supreme Court and were affirmed. One without opinion in Cincinnati & E. R. Co. v. Ritty, 92 Oh St 522, 112 N. E. 1081, and the other by per curiam in Kuerze v. Western German Bank, 100 Oh St 547, 127 N. E. 924. There is nothing in them to guide us and in any event the facts are altogether different from the facts in the instant case, and the proposition with which we are now concerned was incidental in those cases.

We think the correct rule is laid down in Hogg v. Beerman, 41 Oh St, 81, which we cannot find has ever been reversed, and the fourth branch of the syllabus in this case is:

“Where the record properly presents the entire evidence in the case, and, giving full faith and credit to all of the evidence for the defense, the plaintiff is entitled to a decree, the court may grant it, notwithstanding a referee before whom the case was heard reported that the petition should be dismissed.”

A referee is in fact an agent of the court which appointed him, the appointment being authorized by statute and certain powers given him. Certainly his acts are subject to review and revision by the appointing court.

It is contended further that the trial court should not have assessed all of the costs of the reference against Harris Coal Corporation. We cannot agree with this proposition. Holding that it was primarily responsible for the whole situation, it should be taxed with all the costs.

There remains one other question, and that is the disposition of an item of $560. That represents coal not loaded upon the railroad train, but “custom coal” or coal loaded upon trucks. With this the Harris Coal Corporation had no connection insofar as we can determine. The plaintiffs did obtain the money direct and they owed it to Angelo. The trial court held that this item had been liquidated by a credit which Angelo received from the Harris Coal Corporation. Whether or not this is true seems to us altogether beside the point. We find that in that respect and that only, the trial court committed error.

It follows that the judgment of the trial court in that respect was wrong, and this Court, coming to render the judgment which the trial court should have rendered, it is ordered that the judgment be given for Angelo against the plaintiffs for $560, and the judgment as so modified is affirmed.

McCLINTOCK, PJ, PUTNAM, J, concur.


author: By PORTER, J.

text:
    STATE, Plaintiff, v. BROOKMAN, Defendant.
    Common Pleas Court, Miami County.
    No. 34987.
    Decided December 31, 1952.
   OPINION

By PORTER, J.

This is an appeal from the Piqua Municipal Court by the defendant, who was found guilty of violating the reckless driving statute, §6307-20 GC.

The charge grew out of an accident which occurred on June 6, 1952, on Route 36 East of Piqua. Defendant was proceeding in an easterly direction and ran into the back end of a tractor being driven by Scott Garbry proceeding in the same direction. As observed by Acting Judge Turner, the undisputed testimony showed that there was a light on the rear of this tractor and it was visible for almost a mile. It was also observed that the undisputed testimony showed that the defendant did not observe the presence of it in the road until a point about thirty-five or forty feet west of it, and at that time he attempted to swerve the car to pass the tractor in an effort to avoid hitting it.

The defendant feels that what has happened in this case closely parallels what happened in the cases of the City of Columbus v. Brown, 31 Abs 530, and City of Akron v. Hull, 27 O. O. 384, in both of which the defendants were charged with a violation of one section of the Traffic Code and found guilty of violating another. Appellant maintains that the facts which led the Trial Judge to his conclusion were only such as to warrant a conviction of violating the assured clear distance §6307-21 GC (if anything), and do not warrant a conviction under the reckless driving section because there was no wilful and wanton character to his conduct, but only negligence.

This Court feels that the cases relied on by the appellant do not apply because the defendant was not charged under one section and found guilty under another. He was charged with reckless driving and found guilty of it. Hence, the Court feels that the third assignment of error is not well taken.

This leaves for consideration the second ground assigned by the defendant, namely, whether or not the verdict was sustained by any or sufficient evidence; .and the first, — whether or not the Court erred in failing to direct a verdict of acquittal at the close of the State’s case when requested to do so by the defendant.

There is a dearth of authorities in Ohio on the meaning of reckless driving. Before discussing what there is, it is well to examine the wording of §6307-20 GC:

“No person shall operate a vehicle . . . without due regard for the safety and rights of pedestrians and drivers and occupants of all other vehicles . . . and so as to endanger the life, limb, or property of any person while in the lawful use of the streets or highways.”

This was passed September 6, 1941, eight years after the Guest Statute. Some, insight on its meaning is gained by reading the dissenting opinion of Judge Bell in the ease of State v. Wells, 146 Oh St 130, 131, where it is called to attention that the uniform motor vehicle act defines reckless driving as:

“Any person who drives any vehicle upon a highway carelessly and heedlessly in wilful or wanton disregard of the rights or safety of others, or without due caution and circumspection, and at a speed or in a manner so as to endanger or to be likely to endanger any person or property, shall be guilty of reckless driving . . . .”

The three judgess dissenting from the majority opinion in that case noted that had the General Assembly adopted that definition, undoubtedly a person could be convicted of manslaughter for the unintentional killing of a guest in his car, resulting from his reckless operation thereof. However, the language used by the General Assembly in §6307-20 GC “indicates a clear intention to protect the driver of an automobile from the conviction of manslaughter where a guest of such driver is unintentionally killed as a result of the driver’s reckless operation.”

Prior to this they had observed that the General Assembly had not seen fit to protect the life of a guest to the same extent as others, noting that to all persons except the guest the operator of a motor vehicle is civilly liable for damages but to the guest only for injury or death caused by wilful or wanton misconduct “and therein to me lies the reason for the failure of the General Assembly to include a guest within the language of §6307-20.”

That would indicate that wilful or wanton misconduct is not necessary for a violation of the reckless driving statute. There is nothing in the majority opinion to indicate otherwise.

In the majority opinion it is stated:

“The statute specifies the manner of driving which is prohibited. In each such case presented, the issue is whether the defendant did drive in the manner prohibited. If he did he may be punished as described by the statute, even though such driving did not actually result in injury to anyone” (p. 139).

That is about all they have to say as to the nature of reckless driving. The reason they don’t have to say more is that the Court of Appeals didn’t base its opinion on the weight of the evidence, but only on the construction of the statutes, “making comment on the evidence or quantum of the proof herein unnecessary” (p. 140).

Another case which sheds considerable light on the elements of reckless driving is State v. Howey, 78 Oh Ap 419. in which it was held that where a pedestrian starts across a street on a crosswalk at a street intersection with the green light in her favor, but before she reaches the opposite sidewalk the traffic light changes and the operator of a vehicle, with the green light then in his favor, attempts to cross the intersection and strikes such pedestrian, causing her death, such operator has violated the provisions of §6307-45 and §6307-20 GC, and is guilty of second degree manslaughter under §6307-18 GC.

This was decided by our Court of Appeals. Judge Miller, the author of the opinion, observed that the defendant was driving his automobile twenty to twenty-five miles per hour, that when he was half a block from the light he saw that it was red and slowed down to five or ten miles per hour. When he was fifty to sixty feet west of the light it turned green for the east and west traffic and defendant proceeded on into the intersection striking the decedent. “The defendant testified he did not see these parties prior to the impact.” The accident happened about 9:30 P. M. and a misty rain was falling. (Emphasis ours.)

If he did not see them then it necessarily follows that there was no conscious character to the reckless nature of the defendant’s driving. After quoting the statute the Court observed :

“We find that the defendant also violated that section as he operated his automobile without regard to the rights of the deceased, who had the right to proceed uninterruptedly across the street.”

But the matter is settled by the opinion of the Supreme Court in the case of Koppelman v. Springer, 157 Oh St 117, decided March 12, 1952.

This is a land-mark case for reasons not important to note here. For the purpose of this case what is important is the holding that the standard of duty prescribed by §6307-20 GC is not “fixed and absolute” so that it is the same under all circumstances and the failure to observe the requirement is, therefore, not negligence per se. From what the Court says it is clear that it feels that under this section the duties are “undefined, or defined only in abstract or general terms, leaving to the jury the ascertainment and determination of the reasonableness and correctness of acts and conduct under the proven conditions and circumstances . . .

“It is apparent that the statute here involved does not meet the test of providing a specific requirement rather than a mere general rule of conduct. Reduced to its lowest terms, the requirement is simply that ‘no person shall operate a vehicle . . . without due regard for the safety and rights of pedestrians . . . and so as to endanger the life ... of any person while in the lawful use of the . . . highway.’ This means merely that the defendant was obliged to operate his motor vehicle in the same manner as would a reasonably prudent person under similar circumstances” (pp. 120-121). (Emphasis ours.)

This case was certified to the Supreme Court by the Court of Appeals for Cuyahoga County because its decision reversing the trial court’s action was in conflict with that of the Court of Appeals from Mahoning County in the case of Dickerhoff v. Athey, 50 Abs 430. In that case the Court at page 434, stated they were of the opinion that §6307-20 GC “does not contain the specific requirement counsel for plaintiff claims it does, but is a statutory enactment of the common law rulé of ordinary care, that the operator of a motor vehicle must operate it on the highways of Ohio with due regard for the safety and rights of pedestrians and not to endanger the lives, limbs and property of others in the lawful use of same. In determining whether the defendant violated the provisions of that section of the General Code it was the duty of the jury to test her conduct by the rule of ordinary care.”

Since the case was tried to the Court, the defendant not being entitled to a jury trial, it was up to the Court to ascertain and determine the reasonableness and correctness of the acts and conduct under the proven conditions and circumstances. It was up to the Court to determine whether or not the defendant operated his motor vehicle in the same manner as would a reasonably prudent person under similar circumstances.

.This has been done and no prejudicial error was committed in the process or in the action of the Court overruling the defendant’s motion for a new trial. The findings of the Trial Judge are, therefore, affirmed and the appeal dismissed at the appellant’s cost.


text:
    BRADBURY, Plaintiff-Appellee, v. BRADBURY, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 4462.
    Decided November 3, 1950.
    Carlisle O. Dollings, Columbus, for plaintiff-appellee.
    Donald S. McNamara, Columbus, for defendant-appellant.
   OPINION

By THE COURT.

This is an action for divorce on the ground of gross neglect of duty and extreme cruelty. The answer sets forth that a prior petition based upon the same ground was dismissed, thereby condoning the acts complained of. The record discloses that on October 31, 1949, judgment was entered granting a divorce to the plaintiff upon both of the grounds set forth in the petition. The question of alimony was withheld for the reason that further investigation was to be made. On April 12, 1950, a judgment entry was filed denying the defendant-appellant alimony or support money. On April 17, 1950, a motion was filed seeking a vacation of both of the judgment decrees and also an order that a new trial be granted for the following reasons:

1. The final order and decree of the Court is not sustained by sufficient evidence.

2. The final order and decree of the Court is not sustained by the evidence.

3. The final order and decree of the Court is contrary to law.

4. Other errors of law occurring at the trial and excepted to by defendant.

The appeal is noted as one on law and fact but since this is not a chancery case it is not so appealable. This Court has jurisdiction only to consider the appeal on questions of law. Counsel for appellant apparently has so treated it, assigning the following errors:

1. The Court of Common Pleas erred in rendering judgment for the appellee and against the defendant-appellant.

2. The judgment of the Common Pleas Court is contrary to the evidence and is not supported by the evidence.

3. The judgment of the Common Pleas Court is contrary to law.

The record discloses further that the motion for new trial was overruled on May 12, 1950, and notice of appeal was filed on the same day directed to the judgment of April 12, 1950, which it will be noted is a decree denying alimony. There is no appeal from the judgment of October 31, 1949, granting the divorce, no motion for new trial having been filed within ten days, and no notice of appeal having been filed within twenty days from the date of the judgment, in compliance with §12223-7 GC. Therefore, we cannot consider any alleged error in this judgment. Since a valid divorce decree was granted to the husband by reason of the aggression of this appellant, it cannot be said that the denial of alimony and support money was contrary to law. Under §11993 GC she was entitled to an award of such share of the husband’s property as may seem just, but she was not entitled to alimony. Kristo v. Kristo, 23 Oh Ap 29.

We find no error in the record and the judgment is affirmed.

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


author: By WISEMAN, J:

text:
    STACHLER, Plaintiff-Appellee, v. TRAVELERS FIRE INSURANCE COMPANY, Defendant-Appellant.
    Ohio Appeals, Second District, Montgomery County.
    No. 2159.
    Decided November 21, 1951.
    Joseph J. Freemas, A. W. Schulman, Dayton, for plaintiffappellee.
    Landis, Ferguson, Bieser & Greer, Dayton, for defendant-appellant.
   OPINION

By WISEMAN, J:

This is an appeal on questions of law from the judgment of the Common Pleas Court of Montgomery County.

Plaintiff sued to recover the face amount of a fire insurance policy which defendant-company issued on plaintiff’s building. Defendant denied that there was any policy of fire insurance in effect on the date on which the fire occurred.

The case was tried to the court without the intervention of a jury. The court rendered judgment in favor of the plaintiff for the sum of $5,000.00 less the amount of the premium due to the defendant-company from the plaintiff, which was found to be $44.50.

The determinative question is whether a contract of insurance was in effect on the date of the fire loss which occurred on December 13, 1949.

A copy of the opinion of the trial judge is attached to the transcript of the docket and journal entries. We are in accord therewith. After examining the entire record and giving careful consideration to the questions raised in the briefs, we are of the opinion that the judgment was in all respects correct.

The trial court had a right to conclude that the course of dealing and the conduct of the parties was such as to make Wachter, the agent of the insured, in delivering the policy after it had been prepared and counter-signed by the agent of the defendant-company and delivered to Wachter for the purpose of delivering the policy to the insured. The provisions of §9586 GC, do not prevent the insurance agent, under the evidence in this case, from becoming the agent of the insured for the purpose of delivery of the policy. The policy having been delivered, it could not be cancelled except in the manner provided in the policy. The fact that the premium was unpaid was inconsequential under the facts in this case.

The insurance policy being a renewal of the prior policy, the court had a right to infer that the premium was the same in the absence of proof to the contrary. • Furthermore, the defendant is not in a position to complain about the action of the court in reducing the judgment rendered against the defendant to the extent of the unpaid premium. We find no error assigned well made. Finding no error in the record prejudicial to the rights of the appellant, the judgment is affirmed.

HORNBECK, PJ, MILLER, J, concur.


author: By BARTLETT, J.

text:
    CHUDDE, etc. et, Appellants, v. BOARD OF LIQUOR CONTROL, etc., Appellee.
    Common Pleas Court, Franklin County.
    No. 186178.
    Decided April 9, 1953.

      Edwin M. Tuttle, Columbus, for appellants.
    C. William O’Neill, Atty. Geni., Ralph N. Mahaffey, Asst. Atty. Geni., Columbus, for appellee.
   OPINION

By BARTLETT, J.

1. THE MOTION FOR AN ORDER GRANTING THE RIGHT TO ADMIT ADDITIONAL EVIDENCE, OTHER THAN THAT SHOWN BY THE RECORD AS CERTIFIED BY THE BOARD OF LIQUOR CONTROL, IS OVERRULED.

2. BOARD OF LIQUOR CONTROL ORDER (REJECTING APPLICATION FOR RENEWAL OF PERMITS, C-l, C-2, D-l, D-2, D-3 and D-3a), IS REVERSED.

This is an appeal under §154-73 GC, seeking reversal of the order of the Board of Liquor Control, affirming the order of the Director of the Department of Liquor Control, refusing to renew the permits, C-l, C-2, D-l, D-2, D-3 and D-3a of the applicant.

Sec. 154-73 GC, and a part of the Administrative Procedure Act, provides in part as follows:

“Unless otherwise provided by law, in the hearing of the appeal the Court shall be confined to the record as certified to it by the agency, provided, however, unless otherwise provided by law the Court may grant a request for the admission of additional evidence when satisfied that such additional evidence is newly discovered and could not with reasonable diligence have been ascertained prior to the hearing before the agency.”

There is no showing of a demand before the Board that the appellant be given further opportunity to meet the evidence offered before the Board that did not concern the original charges, and which counsel for appellant claims was an unfair surprise which appellant was not prepared to meet. Subsequent study of the record, convinces the Court that this case does not warrant the offering of any so-called newly discovered evidence.

The Court, accordingly, overrules the motion for the admission of additional evidence.

The grounds for rejection of the application for renewal of the permits in question were given at the opening of the hearing before the Board. (R. 2) They were in substance as follows:

“The Department finds that since the issuance of the last permit * * * this place of business has been conducted in a disorderly manner in that persons have been allowed to become drunk and disorderly on the permit premises in numerout instances * * * that in many such instances law enforcement officers have been called to the premises by persons other than the permit holder * * (Emphasis ours.)
“The Department further finds on the basis of affirmative evidence that issuance of the permits applied for would prejudice the maintenance of public decency, sobriety and good order. This finding is based upon the record of intoxications and disorders which have occurred on the premises * * *. The conduct of the permit premises * * * indicate that the permit holder has knowingly and wilfully allowed improper conduct, including brawls, and has permitted persons to become intoxicated on the premises and remain there * * *.”
“The Department further finds * * * a false material-statement in the application * * * ‘township where located — Alpha.’ The applicant’s place of business last year was located in Beavercreek Township and not in Alpha Township.”

The permit premises are known as Lone Pine Inn, State Route 35, Dayton — Xenia Pike, Xenia, Ohio. The current permits were issued in June, 1952. (Emphasis ours.)

Sheriff Hinkle testified (R.7) the only arrests for 1952 were “8-13-52” * * * “They had three boys and two girls, throwing chairs and creating a disturbance on the premises.” * * * “a fight” and the Sheriff’s office was called “to quell a disturbance.” Sheriff’s “records indicate that there was only one call for an arrest in 1952; two in 1951; and eight in 1950.” (R. 7.)

Sergeant Schneider of the Dayton Police Department testified he visited the permit premises “October 7, 1950.” (R. 10) “in regard to stolen cigarettes.” (R. 11.) “We went out sometime and recovered about 150 or 160 stolen cartons of cigarettes.” (R. 12.)

Charles Edwards testified “about the middle of December, 1950” he visited the premises with Fred Stewart, and met “Curly” Bayne, the bartender (R. 13), “rented a cabin and stayed there two or three weeks.” (R. 14); rented the cabin from Bayne at $10 per week, located on same grounds as the Lone Pine Inn. Edwards says he “was burglarizing homes at times.”; * * *, “So ‘Curly’ said he would rent me the cabin so we could put the merchandise in that we took out of the homes * * (R. 15.) Edwards said he stored in this cabin a large T. V. set, radio, pop-up toasters, waffle irons; and that Curly Bayne purchased “two television sets” from him “inside the bar room.” (R. 16.)

Edwards testified on cross-examination that he was convicted on these burglaries and served 18 months in the Ohio Penitentiary; and that Lowell Herzog and Charles Campbell were convicted of these same burglaries and were then serving time. (R. 16.)

Deputy Sheriff Davis testified he visited permit premises “March 1, 1951.” “We went out and talked to Mr. Chudde in regards to his manager, Curly Bayne. We tried to recover some merchandise that was reported to us having, been at the Lone Pine. When Curly arrived we talked to him, and he admitted that this merchandise had been there, and we did recovér one article from the premises.” (A portable radio, R. 18.) Mr. Chudde said he “had no knowledge of anything going on there;” and Curly Bayne “admitted that he had seen the merchandise there and he did have a portable radio in his possession * * * and a shot gun.”

Julius Chudde testified they had an “acre and a half, a barroom, a house and 18 cabins.” (R. 21-22.) The cabins were rented through the bar. They had a license to operate the cabins. (R. 23.) They employed about 12 people. Curly Bayne worked for' the owners from 1950 when they acquired the place until July 1, 1952, when he resigned to run a grill of his own. (R. 23.)

Nathan Chudde, one of the owners, testified: He didn’t “remember Edwards being out there,” (R. 28); and that he purchased 200 cartons of cigarettes at $1.25 a carton (R. 29) from another tavern owner, (R. 30).

Sergeant Schneider stated that his investigation did not involve Nathan Chudde in any respect, other than the purchase of 200 cartons of cigarettes that had been shoplifted in Dayton. (R. 31.)

Amos Bayne (“Curly”) testified: He was a bartender and manager of the Lone Pine Inn from June, 1950, to July 1, 1952. He rented the cabin to Charles Edwards for a week and he stayed three weeks. He gave him a radio for the last week’s rent. (R. 33.) He bought a shot gun from Fred Stewart (R. 34) for $14. Pie returned the radio and shot gun to the officers. No charges were placed against him. (R. 35.) He said Julius Chudde; purchased a television from Edwards; he picked it up at the radio shop and returned it to the Sheriff (R. 40).

The radio put up for a week’s rent was returned to the Sheriff about four or five days after he took it for the rent. (R. 41.)

Julius Chudde testified: He brought a television from Edwards; it was a used set about two years old and had a white blurry picture. (R. 41.) He paid $75 for it, and took it to his radio shop, tore it down for repairs and Bayne returned it to Sheriff Hinkle. (R. 42.)

The evidence produced before the Board failed in every respect to afford any support whatever to the charges on which the hearing was based. The current permits were issued in June, 1952; and the only arrests in 1952 involved a fight, August 13, 1952, when the three boys and two girls created a disturbance throwing chairs, and the Sheriff was called. Th^re was no evidence that these rowdies even had a drink on the premises; and the evidence failed to show who called the Sheriff. The evidence discloses that only one arrest was made in 1952, two in 1951 and eight in 1950. (R. 8.) If anything, certainly the record had improved each year.

The evidence having failed to afford even slight proof of the original charges; thereupon, the hearing developed that in 1950 and 1951 some slick burglars rented a cabin from the bartender, and stored some of the loot there; the bartender took a portable radio as security for the last week’s rent, brought a shot gun for $14; one of the owners bought a used television for $75, sent it to his radio shop and had it torn down for repairs. The portable radio, shot gun and two year old television were returned to the Sheriff. The other owner bought 200 cartons of cigarettes from another tavern owner at a low price, but the evidence did not show the condition of the cigarettes. No criminal charges were ever placed against the bartender or either of the owners of the tavern. The permits were renewed twice, June, 1951, and 1952, since the episodes in which the burglars rented the cabin and the storing therein and sales of stolen property.

The Court is of the opinion and so finds that the order of the Board of Liquor Control is not supported by reliable, probative and substantial evidence, and is not in accordance with law; and, therefore, reverses the order of said Board and dismisses the appeal herein. The permits in question are ordered to be renewed.

Entry accordingly, with exceptions by counsel for the Board.


author: By HORNBECK, PJ.

text:
    OSWALT, Extx., Plaintiff-Appellant, v. WILSON, Defendant, and TRAVELERS INDEMNITY COMPANY, Defendant-Appellee.
    Ohio Appeals, Second District, Darke County.
    No. 695.
    Decided November 15, 1951.
    Spidel, Staley & Hole, Greenville, for plaintiff-appellant.
    Marchal & Marchal, Greenville, Landis, Ferguson, Bieser & Greer, Dayton, for defendant-appellee.
   OPINION

By HORNBECK, PJ.

The facts necessary to an appreciation of the legal question presented are that plaintiff secured a judgment against defendant Henry B. Wilson for $10,000.00 for the wrongful death of Rollin E. Oswalt. After this Judgment plaintiff filed a supplemental petition against the defendant-appellee, The Travelers Indemnity Co., to recover the aforesaid sum on a public liability policy which it had issued to Henry B. Wilson of date May 15, 1947. The defendant insurance company answered denying liability because the policy sued upon was not in force at the time of the accident in which plaintiff’s decedent was killed and as a result of which the damages in her behalf against Wilson had been assessed.

Upon issue drawn, the cause was submitted to the trial judge, a jury having been waived. It appears that the policy sued upon had been issued to Henry B. Wilson on or about April 3, 1947. Item II of said policy read:

“Policy Period: From May 15, 1947 to May 15, 1948, 12:01 A. M., standard time at the address of the named insured as stated herein.”

The policy contained a provision authorizing the company to cancel it upon five days notice to the insured of the purpose so to do. The premium having not been paid, the company sent notice to the insured on June 12, 1947 cancelling the policy in accordance with its terms, effective June 25, 1947 “at the hour on which the said policy became effective.”

'*The collision resulting in the death of plaintiff’s decedent occurred at approximately 1:00 A. M. on June 25, 1947. The trial judge found that the policy was not in force at the time of the collision resulting in the death of plaintiff’s decedent and entered judgment for the insurance company.

The appeal is predicated upon the contention of appellant that the court erred in so construing the policy, that it is ambiguous in terms as to the time when it shall cease to be effective and that resolving such ambiguity in favor of the appellant it was in force all of June 25th, 1947 and the liability of the insurance company is established. Defendant introduced over exceptions of the appellant a public liability policy like unto the one sued upon, issued by defendant company to the insured Henry B. Wilson wherein the policy period was from May 15, 1946 to May 15, 1947 at 12:01 A. M.

Defendant-appellee’s claim is two-fold. First, that there is no ambiguity in the policy sued upon and that under the cancellation notice it had expired before the collision occurred resulting in the death of the insured and, second, that the foregoing conclusion is supported by the fact that the policy sued upon became effective immediately succeeding the policy covering the period from May 15, 1946 to May 15, 1947, 12:01 A. M. and was intended to and did begin and become effective immediately upon the expiration of the former policy.

We are of the opinion that the trial judge was correct in his conclusions as set forth in his written opinion which is before us and in entering the judgment from which the appeal is taken and that the claim of the, defendant company is sound in both particulars asserted.

It may be urged with some support that the 12:01 A. M. following May 15, 1948, the expiration date on the policy sued upon may apply to that date only and not to May 15, 1947, the date when the policy began. If there is such ambiguity it is not in the time when the policy expires which is clearly at 12:01 A. M. May 15, 1948, but as to the exact hour when it became effective. However, it being common knowledge that policies are issued for stated periods of time and it being apparent that this policy was issued to cover a period of one year from inception to conclusion and as the time when it expires clearly appears an ambiguity, if any, as to the date when it became effective would be resolved in favor of the conclusion that it began on May 15, 1947 at 12:01 A. M.

If we are correct in our interpretation of the policy then the notice of cancellation fixing the time when the policy should expire, namely, 12:01 A. M. June 25, 1947, was according to its terms and the expiration date was thus fixed.

The prior policy is corroborative of the conclusion which we reach if upon any view the policy sued upon could be said to be ambiguous. The policy sued upon was contracted for six weeks before it was to be effective, and at a time when the former policy was still in effect. Manifestly, it was the intention of both parties that the second policy continue the coverage provided by the first policy. Beyond question, the first policy expired at 12:01 A. M. May 15, 1947 and that was the hour when the succeeding policy was intended to and did become effective.

Upon any interpretation of the evidence, in our opinion, it supports the judgment entered by the trial judge. We find no one of the four errors assigned supported.

The judgment will be affirmed.

WISEMAN and MILLER, JJ, concur.