author: By HOLTSBERRY, J.

text:
    STATE, Plaintiff, v. PAIRAN, Defendant.
    Common Pleas Court, Licking County.
    No. 9300.
    Decided December 15, 1958.

      Forrest B. Ashcraft, Pros. Atty., Newark, Jack C. Flowers, Special Counsel, Columbus, for plaintiff.
    James Lantz, Lancaster, for defendant.
   OPINION

By HOLTSBERRY, J.

A criminal charge was filed in the Mayor’s Court of Hebron, Licking County, Ohio, charging that defendant “. . ■. . unlawfully operated a watercraft on the waters of Buckeye Lake — a State owned park, without due regard for the safety and rights of operators and occupants of all other watercraft, and so as to endanger the life, limb and property of persons while in the lawful use of the waters of Buckeye Lake. Contrary to and in violation of §1541.11 R. C., and Rule 9-G and 9-H, of the Ohio Division of Parks, Department of Natural Resources.”

Defendant was taken before said Mayor’s Court, and entered a plea of not guilty. A constitutional question was raised, and the Mayor certified the case to the Court of Common Pleas of Licking County, Ohio. The case came on to be heard, and all counsel expressed their interest that the Court make a determination of the constitutional question involved.

Sec. 1541.11 R. C., provides as follows:

“The Division of Parks shall make and enforce such rules and regulations in accordance with §§119.01 to 119.13, inclusive, R. C., for the control and management of watercraft upon the waters of any reservoir, park or other body of water under the management and control of the Division as are necessary to the proper conduct of such reservoir, parks or bodies of water, including the establishment of motorboat lanes and speeds.”

Rule 9G and H of the Division of Parks, Department of Natural Resources of the State of Ohio, provides:

“9 (g) It is prohibited for any person to operaté any watercraft without due regard for the safety and rights of others, or to operate such watercraft in such a manner as to endanger life, limb, or property.
“(h) It is prohibited for any person operating a power craft to repeatedly change the direction of the power craft being operated without a substantial reduction in speed, except where such a course of conduct is necessary in order to avoid navigation hazards.”

The penalty for violation of the above statute and rules is contained within §1541.99 R. C., which provides:

“Whoever violates §§1541.09 to 1541.21, inclusive, R. C., or any rules and regulations of the Division of Parks shall be fined not less than ten nor more than one hundred dollars.”

Defendant contends that the above section and corresponding rules of the Division of Parks are void as being an unconstitutional delegation of legislative power, and that the crime stated in the complaint herein is void, and of no effect.

The Ohio Supreme Court in Mitchell v. State, 42 Oh St 383, stated at page 385: “In Ohio, as under the Federal Government, we have no common law offenses. No act, however atrocious, can be punished criminally, except in pursuance of a statute or ordinance lawfully enacted.”

Clearly, under Ohio law, no act is punishable as a crime unless such act is founded upon a properly adopted statute or ordinance. (See Smith v. State, 12 Oh St 466.)

It is provided in Article II, Section 1, Ohio Constitution, that the “legislative power of the State shall be vested in a General Assembly consisting of a Senate and House of Representatives.” It is a maxim in constitutional law, and a cardinal principle of representative government that the Legislature cannot delegate its legislative power, that is, the power to make laws, to any other body or authority, except when authorized by the Constitution, itself, either expressly or by implication, and any attempt to do so is unconstitutional and void. (10 O. Jur, Second, Section 308.)

The prerogative of the Legislature is one involving wisdom, judgment and prudent discretion of a high order, and such trust imposed cannot be shifted to other shoulders; neither can there be a substitution of the judgment and discretion of any other body or authority for the Legislature, itself. (State v. Park District, 120 Oh St 446; Matz v. Curtis Cartage Company, 132 Oh St 271; Belden v. Life Insurance Company, 143 Oh St 329.)

As to what the Legislature may delegate, and what it may not, the court in Railroad Company v. Commissioners, 1 Oh St 77, spoke clearly in stating: “The true distinction, therefore, is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and in conferring an authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made.”

True, the Legislature may confer upon administrative boards or agencies power to adopt subordinate rules which are administrative in nature and are designed to carry out the law designed by the Legislature. However, generally, the Legislature must prescribe fixed definite standards and rules of guidance which must be followed by the subordinate agencies. There must be an adequate yardstick provided for the guidance of the executive or administrative body or officer to execute the law, because such regulations are subordinate to legislative policies defined by statute, and must be within the frame work of such policy. 11 American Jurisprudence, Section 240; also see decision of the Supreme Court of the United States in Panama Refining Company v. Ryan, 239 U. S. 495, wherein, in Section 9 (c) of the National Industrial Recovery Act, it was held an unconstitutional delegation of legislative power to the President.

Complexities of modern life have made establishment essential of numerous boards and commissions, resulting often in a difficult problem arising with respect to the delegation of powers. Justice Cardoza, with his picturesque language, once in writing of such powers, said they must not be “unconfined and vagrant,” and must be “canalized within banks that keep it from overflowing.”

In board of health cases courts have usually upheld delegation without standards being set up, but these particular instances have been where the court found that such would be impossible, or impractical. Such would not be the situation with the instant case.

Consideration of the question before this Court in the instant case, construed in the light of the principles of law discussed herein, leads this Court to the conclusion that §1541.11 R. C., and Rule 9 G and H, of the Division of Parks, Department of Natural Resources of the State of Ohio are void and of no effect as being an unconstitutional delegation of legislative power. The Revised Code Section uses the words: “as are necessary.” Subsequent §1541.99 R. C., prescribes the penalty. Thus, the Legislature leaves to the discretion of the Division of State Parks, and to the whim of its subordinate officials, the determination of what conduct on the inland waters of this State will constitute a crime to which the penalty will be applied. The statutes does not set forth standards. No adequate guides are prescribed for the Division to follow — not even a broad statement of legislative policies is apparent. Clearly, the doing of such would not have been impossible or impractical.

The Legislature has displayed high ability in passing laws pertaining to highway and motor vehicle legislation, a more complicated subject, and other related laws pertaining to watercraft which clearly reveals prudent understanding and in the opinion of this Court, any argument that the subject of watercraft is beyond the comprehension of our Legislature is as weak as the old example of soup made from the shadow of the skeleton of a pigeon that has died from starvation.

Would anyone even dare suggest a parallel situation — that the Legislature could confer upon the Department of Highways, the power to determine what conduct on the part of motorists in Ohio constitute various traffic offenses? Obviously not. The Legislature has set forth very specific standards of motor vehicle operation on Ohio public highways, such as speed laws and passing zones. There is no valid reason why specific watercraft standards could not be set forth for the inland waters of Ohio by the Legislature.

Sec. 1541.12 R. C., concerns sailing vessels and regulations; §1541.13 R. C., sets forth required equipment for motor boats; §1541.14 R. C., deals with signal regulations for boats. This Court respectfully suggests the urgent need that the Ohio Legislature, by legislative act, set forth specific regulations in connections with speeding and reckless operation of watercraft on the inland waters of Ohio.

For reasons stated herein, this Court finds the criminal charges filed against defendant are void, and of no effect, and that §1541.11 R. C., amounts to an unlawful delegation of legislative power to the Division of State Parks.


source: Caselaw Access Project

author: By FAUST. J.

license: Public Domain

text:
    BARR, An Incompetent, Guardianship, In re.
    probate Court, Miami County.
    No. 36721.
    Decided November 7, 1958.

      Rodney Blake, Sidney, Robert P. Pite, Piqua, for Catherine Barr, an Incompetent Person.
    James H. DeWeese, Piqua, for the Guardian in the Guardianship.
   OPINION

By FAUST. J.

This matter came on to be heard upon the motion of Catherine Barr, an incompetent person, to terminate guardianship, testimony of witnesses and briefs of counsel.

Insofar as the motion before the Court in this cause invokes its jurisdiction only as to the termination of the guardianship, that she may manage her own affairs, the Court will confine its findings to that issue.

The Court finds from the evidence that on the 2nd day of July, 1953, Warnah A. Holeton and Charlotta Belle Hiegel made application to the Probate Court of Miami County, Ohio, requesting that a guardian be appointed for Catherine Barr, because of advanced age and physical disability.

That the said Catherine Barr, in writing, made choice of James H. DeWeese as guardian and respectfully petitioned the Court to appoint him as such guardian.

Sec. 2111.02 R. C., reads in part:

"When found necessary, the probate court on its own motion or an application______shall appoint a guardian_______
“If a person is incompetent due to physical disability, the consent of the incompetent must first be obtained before the appointment of a guardian for him.”

The records of the Court reveal that upon the solicitations of Warnah A. Holeton and Charlotta Bell Hiegel, next of kin of Catherine Barr in the County, and the choice and consent of the said Catherine Barr, the Court appointed James H. DeWeese, attorney at law, guardian of the estate of Catherine Barr and he has been acting in this capacity for the past five years.

Tillman, An Incompetent, In re, 73 Abs 534.

1. There is no legal distinction between a guardian for a mentally incompetent person and a person incompetent by reason of physical disability or infirmity, except that specified in §2111.02 R. C., which requires that a person for whom a guardian is to be appointed for reason of Physical disability or infirmity must consent to the appointment of a guardian.

2. The legal effect of a “consent” to the appointment of a guardian for a person incompetent by reason of physical disability or infirmity is a waiver of that person’s constitutional rights and her consent to having her estate administered by a guardian who is subject to rules of law and the supervision of the probate court.

Judge Ziegel stated In re Tillman, 73 Abs 534 that

“The legislature having neither established by specific terms nor logical implication from its language any distinction between a guardianship for mentally incompetent person and a person incompetent by reason of physical disability or infirmity, it would be highly improper for a court to do so by judicial fiat. Whether or not there should be such a distinction is a matter for legislative, rather than judicial consideration.”

Catherine Barr, by her voluntary consent agreed to be bound by the laws of the Guardianship of the State of Ohio. The guardian whom she chose, and was thereafter appointed by the Court, is bound by the same laws and the same requirements as any other guardian. The Guardianship laws provide no separate code of duties.

See In re Tillman, 100 Oh Ap 295.

“The Probate Court is not the agent of the applicant in any case or in any proceeding in which a guardian is sought. The Probate Court is not the agent of the person for whom a guardian is sought. The Probate Court is the agent and the arm of the state for the purpose of protecting and preserving the property of a person for whom a guardian has been appointed.”

In re Joyce, 19 O. O. 506; 32 Abs 553.

Unlike the Luft case (91 Oh Ap 409), the Court finds that the guardian and ward did co-operate for several years. Upon the development of the testimony it would appear that they would consult frequently and the guardian would petition the Court with the ward’s written consent for improvements upon the farm.

Apparently the suggestion to sell off some of the farm in lots was made by the ward, and subsequently because of a rumor about the costs of the survey, she testified that she lost confidence in the guardian and wants to make a change by terminating the guardianship.

Guardianship proceedings in the Probate Court are public records, open for inspection by any interested person. To the Court’s knowledge no one other than Mr. Blake, attorney for ward, investigated the trust and that relative to termination of the guardianship of the estate of Catherine Barr.

Upon written application of any party interested in the trust estate or when the Court deems it necessary, will cause an investigation to be made of administration of the trust. No such request was made to this Court.

The Court has a right to presume, in the absence of anything to the contrary, that the guardian has rightly performed his duties devolving upon him in discharging the trust.

A guardian will not be asked or expected to do impossible things. An honest effort, with good intentions and good business conduct, are all that will or can be expected.

In re France v. Frantz, 4 O. N. P. 278.

May a Probate Court terminate a guardianship for physical disability upon the motion of the ward and before the removal of the disability?

To terminate a guardianship under §2111.47 R. C., there must be satisfactory proof that the necessity for the guardianship no longer exists or that the letters of appointment were improperly issued.

Williams, an Incompetent, Guardianship, In re, 78 Abs 98.

“when one has voluntarily consented to the apointment of a guardian under the statutes providing for such appointment and the court has acted upon the matter and made the appointment, the ward cannot terminate the guardianship by merely withdrawing his consent.
“His constitutional rights are protected by §2111.47 R. C., wherein provision is made for the court to determine in a proper hearing whether the necessity for the guardianship continues to exist. The ward cannot take away the jurisdiction of the court to make such determination. However, the judgment of the Court is subject to review on appeal.”

As the ward is a woman of advanced years, the Court permitted considerable latitude in the testimony concerning the appointment and her business affairs in order to observe and determine whether or not Catherine Barr would now be able mentally and physically to manage her own affairs.

In part of her testimony Catherine Barr stated that she would not be able physically to care for her own affairs, that things were not going to suit her, that she wanted to make a change and give her nephew Warren Holeton, Power of Attorney to represent her.

The Court appointed Dr. Burton Hyde, medical doctor, to examine Catherine Barr and he testified that méntally she was competent but was physically incompetent to handle her own affairs and would need help from someone to aid and assist her.

If there was a necessity five years ago for the' appointment of a guardian for the estate of Catherine Barr at age 86 years, and one was appointed, was her physical condition improved to such an extent now at age 92 years, that she no longer needs a guardian to manage and direct her affairs under the supervision of the Court?

The Court can readily understand a circumstance wherein a person is seriously injured or ill and requests the Court to appoint a guardian because of his physical incompetency; upon his recovery and request for termination the Court would grant the termination as the necessity for the guardianship would no longer exist.

“The provisions of-this section are mandatory and upon a proper showing being made, the guardianship shall be terminated.”

In Re: Guardianship of Tillman, 100 Oh Ap 295.

In an attempt to terminate the guardianship, under physical disability, the incompetent must prove to the satisfaction of the Court that she is now better able to care for her property than at the time of the appointment, or that conditions have changed and that a guardian of her estate is no longer necessary.

The testimony of Catherine Barr and the evidence does not reveal to this Court that the necessity for the guardianship no longer exists and that she is now able to manage her own affairs, thus it does not warrant the termination of the guardianship.

The motion to terminate the guardianship of Catherine Barr is therefore overruled until further order of the Court.

Counsel may prepare entry accordingly saving exceptions.


author: By GRIFFITH, J.

text:
    BUTCHER et, Plaintiffs-Appellees, v. CHURCHILL, Defendant-Appellant.
    Ohio Appeals, Seventh District, Portage County.
    No. 230.
    Decided March 10, 1958.
    Loomis & Jones, Ravenna, for plaintiffs-appellees.
    Ralph B. Maher, Akron, for defendant-appellant.
   OPINION

By GRIFFITH, J.

Joseph Leo Butcher brought this suit against Royal S. Churchill for property damages to the plaintiff’s automobile by reason of a collision with plaintiff’s car at the intersection of Highland Avenue and North Chestnut Street in the City of Ravenna. The collision occurred in mid-afternoon of October 25, 1956.

The plaintiff’s car was being operated in a northerly direction on North Chestnut Street by plaintiff’s wife, and the defendant’s car was being operated by the defendant himself in an easterly direction on Highland Avenue. At this intersection, there is a traffic light displaying red, yellow and green signals duly installed by the city.

The undisputed testimony shows that the defendant, Churchill, was operating his car in a procession of from eight to twelve cars, his being the third from the last in the procession. The vehicles were accompanying a body of a deceased person being transported from Kent to Gustavus, Ohio.

Each vehicle had its headlights lighted, and each car had a purple and white marker attached to the middle of the windshield, said marker being approximately 12 inches by 5V2 inches with the word, “Funeral,” printed thereon.

There is evidence in the record that while the funeral cars were passing through the intersection, the light changed from green to red, and that the plaintiff’s car, approaching from the south, had the green light at the time it entered the intersection. The plaintiff’s car was struck on the left by defendant’s car doing substantial damage to the plaintiff’s automobile.

Since this is a case of a bailee operating the car, the operator’s negligence is not imputed to the owner, the plaintiff in this case. During its deliberation, the jury presented the following question to the Court: “By' law, do funeral processions have any right of way?” The Court answered that question as follows:—

“The court instructs you as a matter of law that such right of way as a funeral procession, properly identified as such, may ordinarily have —is not an issue in this case.”

The trial judge took the position that Churchill, the defendant, was not in a “funeral procession,” within the provisions of §4511.45.1 R. .C., which section reads as follows:—

“As used in this section ‘funeral procession’ means two or more vehicles accompanying a body of a deceased person in the daytime when each of such vehicles has its headlights lighted and is displaying a purple and white pennant attached to each vehicle in such a manner as to be clearly visible to traffic approaching from any direction.
“Excepting emergency vehicles proceeding in accordance with §4511.45 R. C., or when directed otherwise by a police officer, pedestrians and the operators of all vehicles, street cars, and trackless trolleys shall yield the right of way to each vehicle which is a part of a funeral procession. Whenever the lead vehicle in a funeral procession lawfully enters an intersection the remainder of the vehicles in such procession may continue to follow such lead vehicle through the intersection notwithstanding any traffic control devices or right of way provisions of the Revised Code, provided the operator of each vehicle exercises due care to avoid colliding with any other vehicle or pedestrian upon the roadway.”

In other words, it appears from the record, that the court determined as a matter of law that the defendant was not entitled to the benefits of this section for the reason that he did not qualify himself as the statute requires. Two questions arise.

1. Did the sticker constitute a pennant as a matter of law?

2. Should this question have been submitted to the jury for its determination rather than for the Court to pass upon it as it did?

The defendant assumed that he was entitled to the benefit of this statute as he entered that intersection even though he entered it on the Ved because of the provisions of the statute, which became effective on January 1, 1956. So the case simmers itself down to the question of whether or not the defendant, Churchill, met the requirements of the statute to entitle him to the right of way.

The statute provides that the defendant shall have the headlights lighted and shall display a purple and white pennant attached to each vehicle in such a manner as to be clearly visible to traffic approaching from any direction.

A pennant is a flag, and Webster states that the fly usually is much longer than the hoist. The hoist means the height of the flag as opposed to the horizontal length of it. Another definition we And is as follows: “Any small flag used for decorating, signaling and so forth.”

The sticker, defendant’s exhibit 1, is not a pennant for two reasons:

1. It does not meet the definition of a pennant in the ordinary use of the word. It is nothing more than an automobile sticker pasted on the inside of the windshield.

2. It is not attached to the vehicle in such a manner as to be clearly visible to traffic approaching from any direction.

The doctrine of substantial compliance with the statute as advanced by defendant is hardly applicable to the facts in this case for the reason that the essential requirement of the section of the Code that the pennant shall be attached to the vehicle “in such a manner as to be clearly visible to traffic approaching from any direction” has not' been met by the sticker. This sticker is not a technical deficiency but an out and out omission of an essential requirement.

We do not think this sticker complies with the requirements of the statute and, so finding, the defendant is not entitled to the protective provisions of §4511.45.1 R. C. The other errors assigned refer to requested charges, and we find no error in the court’s refusal to give them as requested.

Finding no error prejudicial to the rights of the defendant-appellant in this case, the judgment of the Municipal Court of Ravenna is affirmed.

NICHOLS, PJ, PHILLIPS, J, concur.


author: By McBRIDE, J.:

text:
    LITSEY, Plaintiff, v. LOOKER et, Defendants.
    Common Pleas Court, Montgomery County.
    No. 110721.
    Decided April 11, 1958.
    Robert K. Corwin, Paul E. Lacouture, for plaintiff.
    Gordon H. Savage, Ralph S. Shell, Jesse Jennings, Edgar J. Graef, Jr., and other counsel representing lot owners and mortgagees.
   OPINION

By McBRIDE, J.:

The court will confine its remarks to the facts which determine the motion to dismiss at the end of the plaintiff’s case. The action is upon a mechanic lien taken on twenty-nine residential lots under §1311.08 R. C., which authorizes a single - lien when the work is performed under “one general contract.”

The plaintiff’s testimony is succinctly quoted as follows: “He asked if I was interested in completing those houses in the Tall Oaks Plat and I told him yes and he said something about I don’t know if we can afford you or not but we will keep on going and 1 will let you know if the cost gets out of hand. I said Charlie we will continue on the same basis I have been working for you and from that conversation on there was never any more entered into, any kind of agreement, on that job. I just kept right on working as the job would progress.”

Other than a few preliminaries this constitutes all of the testimony relating to .the nature and existence of a contract. The court finds that where a contractor is requested by the owner-builder to paint on a .time and material basis a model house and an indefinite number of additional houses which the owner may thereafter request him to paint when as and if buildings become available for painting such an arrangement is not “one general contract” but rather is a simple understanding that the contractor will be employed in the future under separate contracts to paint separate units when and as requested. The plaintiff denied there was any agreement other than that he would be called upon to paint such houses as DePorter might erect, if the cost of painting remained satisfactory. Each request created a separate implied contract covering separate buildings.

This arrangement between the owner-builder and the painting contractor is vague and indefinite and it does not constitute a single general contract for painting all buildings which were subsequently erected and painted. Such an arrangement does not support a single lien under §1311.08 R. C., on all buildings which were painted upon subsequent separate requests extending over a period of nearly two years.

One general contract within the purpose of the statute requires a definite agreement covering the entire subject matter of the contract, including the precise number of buildings to be erected. Any other construction of this statute based merely upon a vague willingness to continue to work together would destroy the purpose and intent of the statute by continuing the lien time on all future construction as long as the two individuals got along together and continued to work together.

The motion to dismiss at the end of the plaintiff’s case is sustained.


author: By WATTERS, J.

text:
    HARPER et, Plaintiffs, v. LYNCH, Defendant.
    Common Pleas Court, Summit County.
    No. 215574.
    Decided March 12, 1959.
    Vernon Weygandt, for plaintiffs.
    Frank P. Kauffman, for defendant.
   OPINION

By WATTERS, J.

The plaintiff, Harper, was injured personally and his car was damaged as claimed due to the negligence of the defendant, Lynch, operating his or her car here in Summit County.

The defendant is a non-resident of the State and service was had on her or him through the Secretary of State of Ohio under §2703.20 R. C. (old §§6308-1 and 6308-2 GC), in behalf of both plaintiffs.

The plaintiff, Harper, had a collision insurance contract with The New York Underwriters Insurance Company, the other plaintiff, which was a $75.00 deductible policy.

The insurance company paid him $338.90, the plaintiff, Harper, standing the first $75.00 of damage to his car, the insurance company becoming the assignee and subrogee of the $338.90 which it paid Harper.

The insurance company is a party plaintiff as subrogee for said amount paid, while the plaintiff, Harper, sues for $10,000.00 to cover his personal injuries and the first $75.00 damage to his car.

The defendant seeks to have the service quashed, claiming that there is no authority giving to an assignee or subrogee of a property damage claim (or an insurance company, assignee or subrogee) the right to sue a defendant by getting service under §2703.20 R. C. or under the venue statute, §4515.01 R. C., by bringing the action “in the county in which such injury occurred.”

Sec. 4515.01 K. C., is in substance as follows:

“Actions for injury to a person or property, caused by the negligence of the owner or operator of a motor vehicle, may be brought by the person injured against such owner or operator in the county in which such injury occurred-----.”

Defendant claims that the action of such a subrogee or assignee comes under §2307.39 R. C., which provides:

“All actions other than those mentioned-----must be brought in the county in which a defendant resides or may be summoned

But see also §2307.38 R. G.

27 Abs 406, Travelers Insurance Company v. Miller, etc., Syllabus (1) (Darke County Court of Appeals):

“An action may be filed by an assignee or subrogee of a person whose car was damaged in an automobile accident against a non-resident of the state in the county where the cause of action arose under the authority of §11276 GC (§2307.38 R. C.), and §6308 GC, which refers to defendant’s residing in the state, is inapplicable.” (Emphasis by this court.)

It is obvious that the court is saying the action may be filed by the insurance company under present §2307.38 R. C., without regard to present §4515.01 R. C., which does not apply at all to non-residents, but only residents of Ohio.

(Note: To make the syllabus above read correctly, there should be a comma after «§11276 GC.”)

The court also said that if the statute for substitute service §6308-1 and §6308-2 GC (now §2703.20 R. C.), had been complied with fully, the non-resident defendant, Miller, was before the court.

In 62 Oh Ap 133, Mercer Casualty Company v. Perlman, cited by the defendant’s counsel, was not a subrogation case in the sense of the case at bar. The court held the insurance company having paid under the accident policy to the estate of the insured child in a school bus accident was not subrogated to any rights at all. It was not an indemnity policy at all.

The court said the action did not fall at all under the substituted service statute, §§6308-1 and 6308-2 GC, because the company had no right of subrogation at all.

The court differentiated its case from 27 Abs 406 (Supra). See discussion starting at about the middle of page 138 of 62 Oh Ap 133.

In 99 Oh Ap 389, Insurance Company v. Cox, the court holds: When the insurance company which has paid the insured only a part of the loss under a collision contract, joins with the insured as a party plaintiff to protect its right of subrogation, the insured seeking to recover his loss is the real party in interest.

In other words, the plaintiff, Harper, had the right to bring this action as the real party in interest.

And had the insurance carrier of Harper not been made a party plaintiff, the defendant could have compelled the appearance of the insurance company in the case in order to have all the issues fully determined in this action, by reason of the insurance company’s right of subrogation.

See 142 Oh St 132, Mutual Insurance v. Gross:

“(1) In an action by the assignee of a part of a tort claim against a tort feasor, the latter can have the assignor of the claim (here the real party in interest, Harper) made a party to the action.”

(See discussion against splitting cause of action on page 134, paragraph 1.)

Now we have 167 Oh St 221, Rush v. Maple Heights, which held as follows:

“Where a person suffers both personal injury and property damage as a result of the same wrongful act, only a single cause of action arises, the different injuries occasioned thereby being separate items of damage from such act.!’

(Paragraph [4] of the syllabus of Vasu v. Kohlers, Inc., 145 Oh St 321, is overruled.)

Since the injured party, Harper, has the right to bring this case in the County, Summit, Ohio, where the cause of action arose, and also has the right to summon the defendant, as a non-resident, through the Secretary of State, the forum for the claimed wrong has been chosen.

The insurance company, through its right of subrogation, is in the same position as the plaintiff, Harper, the real party in interest, and said cause of action cannot be split. .

There is only one cause of action, and it cannot be split. The Supreme Court has made its decision, and only by setting it aside can it change the result of its decision.

The decision changed a rule of long standing as set forth in 145 Oh St 321, supra, in paragraph (4) of said decision. And now the Supreme Court has changed its mind.

In the interest of cutting out a multiplicity of suits, the rule should be as announced here.

The motion to quash is overruled. To rule otherwise would be splitting hairs and cause unnecessary litigation and confusion.

A journal entry will be so drawn, with exceptions to the defendant.


author: By McNEIL, J. (By Assignment).

text:
    DECKER, Plaintiff, v. STANDARD OIL CO., Defendant.
    Common Pleas Court, Allen County.
    No. 43793.
    Decided September 22, 1958.
    (McNEIL, J, of Van Wert County, sitting by assignment in Allen County.)
    James Blair, John D. Harnishfeger, Lima, for plaintiff.
    Vincent E. Mitchell, Cleveland, for defendant.
   OPINION

By McNEIL, J. (By Assignment).

This cause is a case involving a collision between a motorcycle and a truck. A special verdict was submitted to the jury, and upon such special verdict, the court rendered judgment in favor of the defendant. Thereafter the motion for new trial was filed. The only question the Court is considering herein is whether the special verdict was requested timely under the provisions of §2315.15 R. C.

At the close of the evidence, defendant submitted special instructions before argument, which the Court gave. These special instructions were general in their terms. Thereupon plaintiff proceeded to argue the case, and following the opening argument, the defendant waived further argument and requested that a special verdict be given. At this time, the Court had prepared the general charge. With the submission of the special instructions before argument, there had been some delay while these matters were argued. Upon the request for a special verdict, considerable more delay ensued while the court prepared the special instructions. At that time, the court expressed some doubts as to whether the request was seasonably made, but after a hurried examination of Hubbard v. C. C. & C. Hwy., Inc., 81 Oh Ap 445 (motion to certify overruled), and Bates v. Prudential Insurance Company, 59 Oh Ap 393, the Court at that time concluded that the request was seasonable, and pushed into the task of preparing a special verdict.

Now that the Court has had time to reflect upon the matter, the very doubts that the Court then -had as to the seasonability of the request have been intensified, and has resulted in a complete examination of this subject.

It appears that the special verdict was originally a device developed by members of the jury to escape the danger of exposure to attainder. After attainder was abolished, the special verdict has continued in our statutes. For discussion of a history of same, see Article by Hon. Robert L. McBride, 59 O. O. 381.

The statute of the special verdict can be 'a device to further the administration of justice, but is one that has never achieved general acceptance except in localized parts of the State. Even then it has remained one part of the trial procedure which is somewhat hazardous in its use, as stated by Judge Stewart in the case of Landon v. Lee Motors, 161 Oh St 82:

“It is not only a difficult and delicate task, but a party exercising the right frequently does so at his peril. As in the case of special interrogatories, it is exceedingly dangerous to the administration of justice to submit a special verdict except in strict accordance with the statute.”

It would appear to the Court that the logical time for the submitting of a request for a special verdict is prior to argument at the same time that special instructions before argument are requested. Whether or not certain special instructions may or may not be given may very well depend upon whether a special verdict is or is not requested. In Dowd-Feder Co. v. Schreyer, 124 Oh St 504, in the syllabi the Court held:

“When a special verdict is to be rendered, only such instructions should be given by the court as are necessary to enable the jury clearly to understand their duties relative to such special verdict.”

For the same effect, see Syllabi 3 in Gendler v. The Cleveland Railway Co., 18 Oh Ap 48. This rule has recently been reaffirmed in the Landon case, supra. In some cases, however, it has been held that because of waiver, lack of prejudice, or the inseparability of law and facts, courts have permitted the giving of the complete law of the case. Dowd-Feder Co.,. supra. However, in the opinion in the Landon case, supra, Judge Stewart posed the query as to whether the giving of general law should ever be held not to be prejudicial.

There is one Appellate case in Ohio, Jackson v. Becker, 24 Abs 397, which held that there is no obligation upon a trial court to give any special request to juries before argument when there is a request for a special verdict.

An examination of these eases certainly indicates that at least the ideal time for presentation of a request for special verdict should be before the argument. It certainly would appear advisable that the court, in the ruling on special instructions, should know at that time what type of verdict may be requested, so that he may rule intelligently on the special instructions and see that an improper special instruction is not given.

In the reverse, it would appear that whether or not a special verdict may be had would depend upon whether the other side has requested special instructions that may or may not inhibit the use of a special verdict. An attorney in arguing should be entitled to know as to what type of verdict is to be rendered so that he may argue intelligently to the jury. There are occasions when ordinary argument given by attorneys, when it is not known that a special verdict is to be requested, may only help confuse the jury instead of intelligently calling pertinent testimony and argument to their mind, and may actually make references to the law that would become improper. In Judge McBride’s article on special instructions, supra, he stated:

“Each case- presents individual problems and requires the exercise of discretion by the trial judge. The court alone is in position to coordinate the necessary and specific law that is given with the form of the proposed verdict. Counsel may test what law the court intends to give by demanding a special verdict before argument and at the time he submits special instructions for approval. This is the point during the trial at whiah the request for a special verdict should be required. However, the statute is silent in this respect.”

In the Bates case, supra, no question was raised as to whether the matter was presented seasonably. In the case it incidentally appears that the request was made after argument, but there is no discussion of the matter. It should be noted that the Bates case was decided by Judge McBride, and the court has just quoted an article appearing immediately before the report of the Bates case as to his belief as to the time it should be presented.

In the Hubbard case, supra, it is an appellate district other than the appellate district of this court, and although a motion to certify was overruled, this of course is not a final binding decision which this court is required to follow, but one which this court usually would follow. However, in that case, it should be pointed out the objection was not as to whether the request was seasonably made, but whether or not defendant’s counsel was guilty of misconduct in requesting special instructions when they knew a special verdict would be requested. With this the court can agree. Certainly, there is no element of misconduct in the attorneys of this case or in that case in the area of confusion that exists surrounding this subject. It finally is noted that the court in disposing of this matter stated:

“In our opinion counsel were not guilty of misconduct, and there is no showing of prejudicial error.”

It is true that the statute is silent as to the time a special verdict is to be submitted, but it is equally true that there is no time limit specified for the request for interrogatories or special findings. Sec. 2315.16 R. C. The Supreme Court, in Bobbitt v. Maher Beverage Co., 152 Oh St 246, stated:

“A trial court, in the exercise of its discretion, may refuse to submit to a jury interrogatories which’are neither suggested nor tendered until the jury is about to retire for deliberation on a verdict.”

Kennard v. Palmer, 143 Oh St 1, was approved.

Thus, it appears that under a very similar statute courts may legitimately impose a time, in the sound administration of justice, when the matters other than a general verdict are to be submitted to a jury may be requested, as both statutes have somewhat the same purpose and are both similarly indefinite as to the time. There is less reason to restrict the time on special findings or interrogatories than 'a special verdict as in most cases a general verdict is being returned, notwithstanding,-and counsel in arguing are arguing under the assumption that a general verdict will be returned. The court mentions these cases to show that the Supreme Court has permitted limitations of time in these type requests, not that both requests necessarily should have the same time limitation.

This matter has been decided in other states with various conclusions being reached, some because of the statutes and others because of variance in the views of the courts. In summarizing these cases, both special interrogatories and special verdicts are treated together, and the following appears in C. J. S. 89, §537, P. 264:

“Except as fixed or restricted by statute, the time Spr filing requests for special findings is largely in the discretion of the trial court, which may prescribe and enforce a reasonable rule or order with respect thereto, and may modify or waive such rule or order in its discretion, provided such discretion is not abused to the palpable injury of a party; but a request should not be submitted at such a state of the trial as to work surprise or be manifestly unfair to the other side.”

The court has examined these cases and they fall into two general interpretations, being opposed to each other. The summary of one view set forth in C. J. S. is as follows:

“A request may be presented before the issues are closed, and before argument is begun, even after arguments on requested instructions, or before the general charge to the jury has been begun.”

The summary of the opposing view is as follows:

“It need not be received after argument has been commenced or closed, after the court has intimated the character of the instructions it will give, or after the general charge has been prepared, begun, or given, or after the jury has retired.”

It appears this question has bothered other courts. To the court it appears that if the submission of a request for a special verdict may be made any time prior to actual charge given by the court, the special verdict instead of being a valuable adjunct to the administration of justice becomes a trick device and may catch the other side and even the court oil guard, and may be often used to secure a special advantage. The court has ruled on special instructions blindly; the attorney has argued to the jury on the assumption that a general verdict will be returned; the jury has been afforded a considerable delay, which they cannot understand after the argument has been given, and the court then works furiously to prepare the special verdict and the instructions for the special verdict, after he has prepared the general instructions, as he was just ready to charge the jury. As against this, what can any party lose by having to make their request for a special verdict at the conclusion of the evidence? The most he can lose is the element of surprise and this certainly is not part of the. sound administration of justice.

In the administration of justice, the courts generally have followed a general trend to eliminate the trick device. Witness the new federal rules; the institution of pretrial in the federal courts, and by rule of the court in State courts in an effort to secure a fair and adequate disclosure of facts and attempt to secure a fair trial with the elimination of surprise, “sandbagging” and other practices that in the past have been much too common to the trial of lawsuits.

Recently the Supreme Court, in Carter Jones v. Eblen, 167 Oh St 189, overruled the old practice concerning consecutive motions for new trial at the end of the case. In that case, Judge Mathias, in the majority opinion, stated:

“We are also aware of the fact that this doctrine (stare decisis) should not be, and has never been, used as the sole reason for the perpetuation of a stated rule of law which has proved to be unsound and unjust.”

Again in that case:

* * s. <<ancj that the many ramifications and exceptions which this court has been forced to engraft onto the rule in order to render substantial justice in its application have proved beyond all doubt that in practice and experience the rule has become nothing more than a trap for the inexperienced or unwary * * *”

In a separate concurring opinion by Judge Bell, he states:

* * * “makes for the incongruous situation of permiting a litigant to say to the Court: ‘Now I want you to decide this case in my favor but if you won’t do that I want someone else.to have the opportunity to decide it in my favor.’ Such a practice is a trifling with the judicial process. I think the rule should be established definitely one way or the other.”

The Court is citing these quotations only to show the general trend to eliminate any trick or device that does not aid in the administration of justice, even if it involves the overruling of established practices.

Although the court is reluctant to do so, being only a trial court, if there is anything to be done, the court feels now is the time, before we have the very pertinent problem presented for trial attorneys in that a rule has become established through the passage of time and common experience and we would be faced with the serious problem of overruling long established practice.

Presently, there is one common pleas court case in which the question was not directly passed upon, and one court of appeals case in which the court found there was no prejudicial error. The court, feeling as it does, and since common acceptance of the practice is not so firmly established as to create serious problems to the trial’ attorney, dissents with the viewpoint presented in those cases.

It is the opinion of this court that a motion for a special verdict should not be entertained after argument has begun and that the granting of said motion by this court during the trial of the case constituted error and that the plaintiff was denied the right to argue the case properly to the jury and the jury was deprived of the opportunity to have argument presented to it relative to the verdict which they were required to render, and this resulted in prejudice to plaintiff.

This is solely and the only ground the court finds for reversing this case. The court feels that defendant should appeal this case and this court feels that if it is mistaken as to the law in deciding a purely legal question, that the granting of the motion for a new trial would be an abuse of the court’s discretion, as the court would not grant the motion on any other grounds, all other matters being regular, except for this point of law.

The court does so reluctantly, as in nearly all cases, whether a decision of a court of appeals is of this district or not, for uniformity of the law, tries to follow decisions of all courts of appeal. However, in this case, in the interest of fairness and justice, the court is unable to do so.

The Court finds that the motion for new trial should be sustained, and journal entry may be prepared in accordance herewith.


author: By DOYLE, PJ.

text:
    SHAPIRO, Plaintiff-Appellant, v. KILGORE CLEANING AND STORAGE COMPANY, Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24676.
    Decided March 16, 1959.

      (DOYLE, PJ, HUNSICKER, J, of the Ninth District, RADCLIFP, J, of the Fourth District, sitting by designation in the Eighth District.)
    Samuel T. Gaines, Howard A. Marken, for plaintiff-appellant.
    Arter, Hadden, Wykoff & Van Duzer, for defendant-appellee.
   OPINION

By DOYLE, PJ.

This case originated in the Common Pleas Court of Cuyahoga County, and was commenced by Ezra Z. Shapiro, a practicing lawyer of the city of Cleveland, against the Kilgore Cleaning and Storage Company, to recover damages for serious personal injuries received by him through the claimed negligence of one Ralph Herdman, an employee of the defendant company.

Upon the issues developed by the pleadings and the evidence, a jury rendered a verdict for the defendant. A motion for a new trial was overruled, and judgment was entered on the verdict. The appeal by the plaintiff to this court is taken from this judgment.

A head-on collision between two automobiles, one driven by the plaintiff, and the other driven by defendant’s employee, was the mischief which brought about the hurt.

The plaintiff testified: that he left his home at about 8:30 in the morning, and drove his automobile west on North Park Boulevard; and that, as he approached a point “three or four car lengths east of the intersection of South Overlook and North Park Boulevard,” while driving on the “right-hand side of the road” and with the “left side of my car * * * three to five feet * * * north of the center line * * *, all of a sudden I saw a car which had been coming in the opposite direction, coming- east up the hill, shoot straight at me, coming across the center line and crossing the bulge of the curve at that point, and it struck my car on the left front side * * *, it threw me forward and to the right and my right chest struck the right center of the wheel, turning the wheel to the left, and then my car began to roll forward down the hill and the other car began to roll backwards down the hill in front of me, and we rolled a car length and a half or so until we both came to a stop and we were about five feet apart at that point.”

The record then shows the following:

“Q. What part of your automobile was struck?
“A. The left front part of my automobile was struck.
“Q. What part of the other car was involved?
“A. The left front part of their car was similarly involved.”

The driver of the defendant’s car testified to an entirely opposite set of circumstances at and near the time of the collision. He said (in answer to a previous question):

“I was driving out North Park Boulevard and I, came * * * close to the intersection of South Overlook and I * * * (saw) Mr. Shapiro’s car up ahead and after it got maybe four car lengths from me he seemed to come right straight across the road, across the center line.
“Q. Now, when you first saw Mr. Shapiro’s car, approximately how far ahead of you was it?
“A. Approximately seventy-five yards. * * *
“Q. At the time you first saw his car, how fast was your car going approximately?
“A. 25 (m. p. h.).
“Q. And in what line of traffic was your car proceeding?
“A. I was on the right-hand lane.
“Q. Well, were you nearer to the center line or to the curb?
“A. I would say about in the center in my lane, or closer to the curb.
“Q. Now, when you saw Mr. Shapiro’s car veering toward you across the center line, what did you do with reference to the operation of your car?
“A. I cut the wheel and hit the brakes.
“Q. Cut the wheel in which direction, sir?
“A. Towards the side of the road.
“Q. That would be towards your right?
“A. Yes.”

In addition to the testimony stated above, the record contains the testimony of a police officer who arrived after the accident, and photographs taken shortly after the collision, showing the damaged cars, the highway and its condition, and the plaintiff’s car partly on the “wrong” side of the road, and the defendant’s car on its “right” side of the highway. The position of the plaintiff’s car on its wrong side of the road when it came to rest was explained by the plaintiff’s testimony as being brought about as a result of his car rolling forward “down the hill” immediately after the collision, and the defendant’s car rolling “backwards down the hill in front of me.”

The only eye witnesses to the collision, who testified, were the respective drivers of the cars; and, as a result, it is obvious that the jury was especially concerned with the credibility to be given to the testimony of these persons.

Attention will be first directed to the following claim of error:

“The trial court erred in relation to the misconduct of defendant’s counsel in making improper and prejudicial argument to the jury and in failing to grant a. new trial because of such argument.”

Counsel for the defendant, after giving to the jury in argument his interpretation of the facts, as shown by the evidence, then proceeded to argue the question of the credibility which should be given to the plaintiff’s version of the cause of the collision. He said to the jury:

“1 am troubled by something in this case that goes far deeper, and with this I am through. I think the facts are perfectly clear that under these pictures Mr. Shapiro’s story can’t be accurate. I don’t accuse him of being deliberately misleading. I think he is mistaken. But as you well know, in the eyes of the public, lawyers do not have the most savory reputation. This goes for me, for Mr. Gaines (Gaines was counsel for the plaintiff), and for all of us. The word “shyster” has a meaning in our language. If a person says that word you know what he is talking about. Now, ladies and gentlemen, I have nothing against a lawyer coming into court and demanding redress for an injury, but when he is so obviously wrong I confess it makes me sick. Every time a lawyer goes sour in the public prints, every time it happens it is a little harder for my wife to go into the grocery store and do her shopping. They tar us all with the same brush. Please, please, don’t tar me with this one * *

In rebuttal argument, counsel for plaintiff said:

“I stood here and I listened to this man imply that this Ezra Shapiro was a ‘shyster’ and I resented it, I resented it with every ounce of energy in my possession, and you ought to resent it. Ezra Shapiro, a former law director of the city of Cleveland, who had the willingness and the candor to come up and tell you his story. How can you ever expect respect for. the profession that you and I chose when you undertake to resort to that sort of innuendo? You will be tarred * * * (the offending counsel was here named). You ought to be tarred. Any man who would demean the profession to the extent to which you have undertaken to demean it today.”

Defendant’s counsel, after the conclusions of the argument, stated, in open court and to the jury, that he spoke impulsively when he used the word “shyster,” and that he did not intend to use the word “with a personal reference to anyone either present or not present.”

Blackstone called the jury system “the glory of the English law.'’ Thomas Jefferson, and others of great repute, have recognized it as one of the really great achievements of English and American jurisprudence. The jury system is sometimes spoken of as the “palladium of our liberties.”

The system in this country has its champions and its opponents. The jury is, however, considered by the majority as a champion of the popular cause; cherished as a bulwark against oppressive governments; and acclaimed as essential to individual liberty. In this state every person has the right to a fair and impartial jury trial before an impartial jury in a case of the kind now under consideration. The lawyers who participate in the trial are officers of the court and charged with every responsibility connected with that office.

The phrase “fair trial” has a definite meaning; and while a generous latitude should be allowed counsel in arguing the merits of their respective sides, such argument should be decorous, and should not be of such a nature as to impair the impartial administration of justice. If it does thwart an impartial administration of justice, of course it causes an “unfair trial.”

“* * * it may be laid down as law, and not merely discretionary, that where the counsel grossly abuses his privilege to the manifest prejudice of the opposite party, it the the duty of the Judge to stop him then and there. And if he fails to do so, and the impropriety is great, it is good ground for a new trial.”

Jenkins, Admr. v. N. C. Ore Dressing Co., 65 N. C. 563, at pp. 564-565, cited with approval in Hayes v. Smith, 62 Oh St 161, at p. 187.

“1. It is not within the privilege of counsel in argument to a jury, to use language calculated to humiliate and degrade the opposite party in the eyes of the jury * * *, particularly when he has not been impeached.”

Coble v. Coble, Admr., 79 N. C. 589, cited with approval in Hayes v. Smith, supra, at p. 186.

The fact that one Cleveland lawyer subtly inferred or insinuated that another lawyer, practicing at the same bar, was dishonest, a pettifogger, and a tricldsh knave, is sufficient to raise the question whether a fair and impartial jury trial was maintained, and whether the jury was prejudicially influenced in determining the credibility of the witness; and the fact that the insinuating, vicious and slanderous characterization of the lawyer-witness was later withdrawn, leaves the question of whether, once a dagger is thrust through the heart, it can be withdrawn without injury or damage. In other words, can the smear of the word “shyster” be withdrawn and leave the surface clean?

In Jones v. Macedonia-Northfield Banking Co., et al., 132 Oh St 341, the following paragraphs of the syllabus are recorded:

“1. It is the duty of counsel to refrain from challenging the honor or reputation of a witness, party or opposing counsel unless warranted by the evidence.
“2. Utterances of counsel while evidence is being adduced, whether consisting of comments on the evidence or of offensive and personal remarks, are improper and unethical and, if prejudicial and not waived, constitute reversible error.
“3. Argument to the jury, in which counsel charges opposing parties with framing or fixing up their defense by perjury arranged for or suborned, is improper unless there is evidence warranting the course pursued; and where counsel grossly abuses his privileges by persisting in making such unfounded charges to the manifest prejudice of opposing parties, it is the duty of the court to interfere, admonish offending counsel and instruct the jury to disregard the improper utterances, and a failure to do so is ground for a new trial.”

Unwarranted and unjustified charges against a party to a suit was under investigation in Plas v. Holmes Construction Co., Inc., 157 Oh St 95. The court said, in paragraph 3 of the syllabus, that:

“3. It is the duty of the trial judge to repress unwarranted charges of a scurrilous character and gratuitous personal attacks against a party to a suit in cross-examination and in argument to the jury; and the trial judge should interpose and not only admonish offending counsel and prevent further improper and prejudicial cross-examination and argument to the jury based thereon but should also promptly instruct the jury relative thereto. Failure of the judge so to do constitutes prejudicial error.”

There is nothing in the record of the trial to justify an implied character assassination of the plaintiff. He is a man who bears a reputation of integrity. Nor is there anything in the record to indicate that "lawyers do not have the most savory reputation.” The members of the 'bar have the reputation generally, we think, of employing such means as are consistent with truth and honor in maintaining the causes confided to them; of carrying out the oath, which they took upon admittance to the bar, to not seek to mislead a judge or jury by any artifice or false statement of fact or law, and to abstain from offensive personality; and to advance no fact prejudicial to the honor and reputation of a party or witness unless required by the justice of the cause with which he is charged.

There are, of course, a few in the legal profession who have miserably violated their oath, and do not bear a “most savory reputation.” The same is true in all other professions or callings. This fact, however, does no violence to the reputation of the vast majority of the men and women of the profession, to the intelligent person, any more than did the conduct of John Wilkes Booth bear upon the reputation of the people of the South who were in sympathy with the Confederate cause following the Civil War. We further do not believe that an intelligent juror or citizen is influenced in his estimation of a lawyer by the sometimes-silly, stupid or dishonest stunts attributed to lawyers in staged plays shown on television or elsewhere.

We are of the opinion, and so hold, that the inflammatory argument of counsel, from which a strong inference could be reasonably drawn that counsel meant the jury to believe and understand that the reputation of lawyers generally was bad, and that the plaintiff-lawyer-witness was a “shyster,” all of which had no basis in fact, constituted prejudicial error; and the court’s attempt, in the general charge, to cure the error was of no avail.

In 39 Words and Phrases (Permanent Ed.) 329, appears the following;

“A ‘shyster’ is defined as a pettifogger, one who carries on legal business in a dishonest way, one without professional honor. Moore v. State, 23 N. W. 2d 552, 557, 147 Neb 390.”
“A shyster is defined as a trickish knave; one who carries on any business, especially a legal business, in a dishonest way (Webst.), and is capable of having reference to the professional character and standing of lawyer; and hence in an action for libeling a lawyer by calling him a shyster the issue whether plaintiff is a lawyer is a material one. Gribble v. Pioneer Press Co., 25 N. W. 710, 34 Minn. 342.”
“An article headed ‘The Whité-Livered Shyster,’ and in its body imputing grossly criminal, anarchistic, and unprofessional conduct to the object of its attack, etc., being written and published concerning a lawyer, held libelous per se under Rev. Codes 1921, Sec. 5690, as exposing him to hatred, contempt, ridicule, and obloquy, causing him to be shunned and avoided, and tending to injure him in his business; a ‘shyster’ being said to be ‘a trickish knave; one who carries on any business, especially a legal business, in a dishonest way.’ Nolan v. Standard Pub. Co., 216 P. 571, 574, 67 Mont. 212.”
“A ‘shyster’ as applied to an attorney, in common understanding means that he is an unscrupulous practitioner who will carry on his legal work in a dishonest way and will resort to sharp and tricky practices to achieve his end and purpose. Henderson v. Evansville Press, Inc., 142 N. E. 2d 920, 922.”

See also: Black’s Law Dictionary (Third Ed.) 1625.

Error of the trial court is further assigned in two respects:

“1. * * * in imposing upon plaintiff the burden of proving that the negligence of the defendant was the sole proximate cause of the collision.”

And—

“2. * * * in giving instructions which state conflicting and contradictory rules of law.”

The court charged:

“It is the duty of the plaintiff to prove to you by a preponderance of the evidence that the defendant was guilty of negligence in one or more of the particulars set forth in the petition. And he must further prove to you by a preponderance of the evidence that said negligence of the defendant was the sole proximate cause of the collision and consequent injuries to said plaintiff before you may find a verdict for the plaintiff.”

At another point the court charged:

“If you, therefore, find, by a preponderance of the evidence, that this collision happened through the sole negligence of the defendant and further find that said negligence was the sole proximate cause of the injuries sustained by the plaintiff, then your verdict must be for the plaintiff.”

Following these words to the jury, the court then charged on contributory negligence as follows:

“From this evidence, in case you find the defendant’s agent guilty of negligence, you may then consider whether the plaintiff was also negligent, which negligence contributed to proximately cause the collision and consequent injuries to him. This is known as contributory negligence. The burden of proving contributory negligence of the plaintiff is on the defendant. If you find, therefore, by a preponderance of the evidence, that the plaintiff was guilty of negligence, which negligence contributed to proximately cause the collision and injuries to the plaintiff, then your verdict must be for the defendant. In other words, if this collision was caused or contributed to by the negligence of both parties proximately operating, then your verdict must be for the defendant.”

When this trial commenced, the presumption of law was that neither of the litigants were negligent, and whether one or the other, or both, were negligent was a question of proof. The proof offered was the testimony of the two contradictory eye witnesses, coupled with physical facts shown to exist after the collision. The jury, in consideration of the evidence, could have found that the negligence of the plaintiff, the negligence of the defendant, or the negligence of both, proximately caused the collision. This thought, it would appear, was in the mind of the trial court when a charge on contributory negligence was given, because contributory negligence on the part of a plaintiff does not come into existence unless there is some.proof indicating negligence of the defendant contributing to the damage.

It is well settled in this state that contributory negligence is an affirmative defense which may arise through either the pleadings, the evidence, or both; and the burden of persuasion to establish it falls upon the party charged with culpable liability.

• When the court told the jury that, before the plaintiff could recover, he must prove that the negligence of the defendant was the sole proximate cause of the damage, the jury was told, in effect, that the plaintiff must prove that he was not negligent proximately causing, or contributing to cause, along with the defendant’s negligence, the damage. In other words, before he could recover, he must prove his freedom from negligence which caused his damage. No such burden is put upon a plaintiff, except only if his own testimony, or evidence in support of his causé of action, raises an inference or presumption of his own contributory negligence, then the burden rests upon him to equal or dispel such inference or presumption. Maddex, et al., v. Columber, 114 Oh St 178; Smith v. Lopa, 123 Oh St 213, 174 N. E. 735.

' It is not necessary to equal or dispel a presumption or inference of contributory negligence, arising from the plaintiff’s evidence, by a preponderance of the evidence; it is sufficient if the inference or presumption is equalled or dispelled by evidence of equal weight. Tresise v. Ashdown, Admr., 118 Oh St 307, 316, 160 N. E. 898.

The plaintiff was entitled to the benefit of the presumption that he was exercising due care for his own safety, and was not negligent as a matter of law at the time of the collision. Cleveland, C. & C. Rd. Co. v. Crawford, Admr., 24 Oh St 631; Norris, Exrx., v. Jones, Recr., 110 Oh St 598, 604, 114 N. E. 274; Tresise v. Ashdown, Admr., supra; McFadden, Admr., v. Breuer Transportation Co., 156 Oh St 430, 442.

If, for instance, the minds of the jurors were in a state of even balance as to whether the plaintiff’s version of the accident was correct, under the charge which required him to prove, by a preponderance of the evidence, that the defendant’s negligence was the sole proximate cause of the damage, he must necessarily fail, because he had not proved that his own negligence was not a proximate cause of the accident. This situation does not comply with the rules of proof.

In a trial where the evidence is in sharp conflict, and an erroneous instruction is given to the jury, relating to the burden of proof, prejudicial error arises in favor of the litigant upon whom the unwarranted burden is placed. Montanari v. Haworth, 108 Oh St 8, 14; Cleveland Ry. Co. v. Goldman, a minor, 122 Oh St 73; Johnson v. Hunter, 103 Oh Ap 31, affirmed, Johnson v. Hunter, 166 Oh St 289.

It appears obvious that the charges on “sole proximate cause” and on “contributory negligence,” are confusing, conflicting, and contradictory. This creates error. Bosjnak v. Superior Sheet Steel Co., 145 Oh St 538, 62 N. E. 2d 305.

For the reasons stated above, the judgment of the Court of Common Pleas will be reversed, and the cause remanded for a new trial.

We do not find the judgment “against the manifest weight of the evidence.”

Reversed and remanded.

HUNSICKER and RADCLIFF, JJ, concur.


author: By LEIS, J.:

text:
    DENMAN, Jr., et, Plaintiffs, v. CITY OF CINCINNATI and GLEN REALTY, INC., Defendants.
    Common Pleas Court, Hamilton County.
    No. A-166082.
    Decided November 6, 1958.

      Louis J. Schneider, Jr., Cors, Hair, Harts ock & Schneider, for plaintiffs.
    William A. McKenzie, Graydon, Head & Ritchey, for defendant Glen Realty Company.
    Wallace M. Power, Asst. City Solicitor.
   OPINION

By LEIS, J.:

Plaintiffs herein seek the extraordinary equitable relief of an injunction to enjoin the defendant, CitJ^of Cincinnati, from issuing a building permit to the defendant, Glen Realty Company, and to enjoin defendant, Glen Realty Company, from proceeding with the construction of a housing project known as Glengate Terrace in the City of Cincinnati, Hamilton County, Ohio.

By agreement of counsel, subsequent to filing of the petition, the filing of the answers was accelerated and the case immediately set down for hearing on the merits.

The salient facts themselves are quite simple: The City of Cincinnati by virtue of City Ordinance Section 1311-3a permits row or garden type housing projects in Residence “B” Districts; defendant, Glen Realty Company, seeks to build such a project in Mapleleaf Heights Subdivision which is zoned Residence “B”; 'plaintiffs, property owners contiguous to and in the vicinity of the proposed project, object to its construction.

First, as to the capacity of the plaintiffs to bring this action. The Court believes that the proper parties plaintiff are in Court, and that the plaintiffs have the required community of interest essential to a class suit as enunciated in the cases of Smith v. Kroger, Sup’t., 138 Oh St 508; Haggerty v. Squire, Sup’t., 137 Oh St 207; Knotts v. City of Gallipolis, 100 Oh Ap 491. See also §§713.13, 2307.18, 2307.21 R. C., Michigan-Lake Bldg., Corp. v. Hamilton, 340 Ill. 284, 172 N. E. 710; Cassel v. Mayor and City Council of Baltimore. 195 Md. 348, 73 A. 2d. 486; Pritz v. Messer, 112 Oh St 628, paragraph 3 of syllabus.

Proceeding to the merits of the case, the Court finds that determination of this case resolves itself to three major points of dispute.

The first point of dispute concerns .an 8 x 40 foot strip at the end of Glengate Lane. Glengate Lane, even if extended by defendants as proposed, would be the sole artery into the development. It is argued that the acceptance of Mapleleaf Heights Subdivision, of which Glengate Lane is a part, by the City of Cincinnati in 1940 (Exhibit 5) was faulty in that the final eight feet of Glengate Lane was never completed and remains in sod today. Plaintiffs contend that this was a faulty street dedication inasmuch as the paving of the street did not comply with the subdivision plat as approved (Exhibit 3). On this point, witness Ray Wachendorf, Supervising Highway Engineer No. 4 of the City of Cincinnati, testified comprehensively on the reasons for stopping eight feet short of the line. (Record pp. 60-61.) The Court finds this to be a logical explanation and holds that the street dedication of Glengate Lane was valid.

The second area of dispute concerns the validity of the zoning ordinance itself, Ordinance 1311, more particularly Section 1311-3a. The Court understands the position of plaintiffs to be that Residence “B” is historically single unit dwellings; or, at the most, four unit apartment buildings, and that multiple dwellings violate the true spirit of Residence “B” Zone. Section 1311, as amended to include Section 1311-3a, allows multiple dwellings in Residence “B” District, providing certain requirements are met.

It must be stated that zoning ordinances are a valid exercise of the police power. Comprehensive lining plans are now recognized as an important function of municipal government in the interest of the public welfare, safety, and health. A property owner in any municipality adopting a zoning plan has the constitutional right, however, not to be denied his property without due process of law by such legislative enactments. By what standards must a court judge the validity of a zoning ordinance? First, there is a presumption of the reasonableness, validity and constitutionality of ordinances which applies fully to zoning ordinances and amendments of zoning ordinances. See 8 McQuillin on Municipal Corporations, Section 25.295. Such a presumption can not prevail, however, in the face of showing unreasonableness or arbitrariness. As to the criteria used to measure reasonableness, see 7 A. L. R. (2d) 990 at 1001. The record discloses that some of the plaintiff property owners purchased their homes in the said Mapleleaf Heights Subdivision prior to the 1949 amendment to Ordinance 1311 allowing multiple units. (Record p. 26.) The 1949 amendment does not in and of itself deprive such property owners of their constitutional rights. The Supreme Court of Ohio has held that a property owner has no vested right in zoning as it is; that such zoning can be amended for the public good. Curtiss v. Cleveland, 166 Oh St 509, 3 O. O. (2d) 1. Were these amendatory provisions for the public good? It is established that the general scheme of zoning may be valid, yet when applied to particular property and a particular set of facts and circumstances may be so arbitrary and unreasonable as to result in a confiscation; and in such a situation, as applied to the disputed property, the ordinancce is void. Eleopoulos v. City of Chicago, 3 Ill. (2) 247, 120 N. E. (2d) 555. A study of the record before the Court reveals that many of the property owners are opposed to the construction of multiple units at the end of Glengate Lane and assert through their counsel that the value of their property would be depreciated and traffic problems would be increased. Fox v. City of Springfield, 10 Ill. 2d 198, 139 N. E. (2d) 732, holds that increased traffic congestion alone is insufficient to label the zoning legislation unreasonable. Robinson v. City of Los Angeles, 304 Pac. (2d) 814, holds that depreciation in value alone is not enough to declare it void. In ascertaining whether this amendment of the zoning ordinance is in the public interest, the Court must determine each case upon its particular facts. Eleopoulos v. City of Chicago, supra. Upon the record before it, this Court cannot hold as a matter of law that the amended zoning ordinance as it applies to the area in dispute is arbitrary and unreasonable. The decision as to the propriety of such matters lies not with the Courts but with the legislative bodies. In the absence of a clear showing of unreasonableness, this Court cannot substitute its judgment for that of the Council of the City of Cincinnati which enacted this measure in 1949. The remedy is in the citizens’ hands to demand that the legislative products of their elected officials reflect the will of the people.

The third area of dispute concerns a 10 x 60 foot strip sandwiched between Glengate Lane and the proposed Glengate Terrace. The evidence discloses that Glengate Lane has a forty foot right-of-way paved to a width of twenty-four feet (Record p. 70); that in October 1957 Lewis Clark Thomson and Betty Bullock Thomson conveyed to the City of Cincinnati a 10 x 60 foot strip of land at the end of Glengate Lane (Record p. 52, Exhibit 6); that sometime thereafter the same grantors conveyed to defendant Glen Realty Company approximately six acres for the development of Glengate Terrace, said acreage being in part contiguous to the 10 x 60 foot strip conveyed to defendant City, and in part contiguous to the lots owned by plaintiffs, Joseph Doerr and Carol Sue Ross. Robert F. Hartmann, witness for City of Cincinnati, testified regarding this 10 x 60 foot strip and its significance to the area in dispute and to City of Cincinnati Ordinance Section 1311. (Record pp. 52-54).

Section 1311-3a referred to by the parties reads as follows:

“A group of two (2) or more multiple dwellings each designed for any number of families with private garages and parking compounds, may be erected in Residence “B,” “C” and “D” Districts, but not in business or industrial districts, on a parcel of ground not less than fifty-thousand (50,000) square feet in area and in single ownership, and having not less than sixty (60) foot frontage on a public street paved to a width of at least sixteen (16) feet and improved with sewer and water mains, which frontage shall serve as the principal means of access to the property, notwithstanding the limitations of Section 1303-(2) (c), and provided further that they be so arranged as to minimum open spaces that the following detailed requirements for health and safety are complied with: * *

A study of the Ordinance in question indicates the pertinent parts of the Ordinance to be that a group of two or more multiple dwellings may be erected in a Residence “B” District on a parcel of ground that meets certain requirements.

1. The parcel must be 50,000 square feet or more.

2. The parcel must be in single ownership.

3. The parcel must have not less than 60 feet frontage on a public street which street is paved to a width of at least 16 feet and which street is improved with sewer and water mains.

4. The 60 foot frontage must serve as the principal means of access to the parcel.

These requirements refer not to the group of multiple dwellings but to the parcel of ground. The first and pertinent paragraph of Section 1311-3a is one extended sentence. The first thought in this sentence is that multiple dwellings may be erected in certain districts; the next thought is that the parcel of ground upon which these multiple dwellings are erected must meet certain requirements; the third thought in the sentence is that the multiple dwellings must meet space, health, and safety requirements delineated in subsequent sub-paragraphs. It is clear that a “parcel of ground” is referred to in the two clauses which immediately follow those keywords and which both begin with “not less than.”

Applying the evidence in the instant case to the requirements of Section 1311-3a, we find that in regard to the parcel of ground upon which these multiple dwellings are proposed that the parcel has 50,000 square feet in area and in single ownership but that the parcel does not have sixty feet frontage on a public street paved to a width of sixteen feet. The Court is aware of the fact that a 10 x 60 foot strip was conveyed to the City to comply with this requirement; however, this Court, after careful consideration, is of the opinion that the October 1957 conveyance does not satisfy the requirement. This 10 x 60 foot strip was conveyed for street purposes. It is not a public street paved to sixteen feet. (See the answer of the defendant City, page 2, lines 4 and 5.) Hie Court believes that this Ordinance is designed to prevent such traffic bottle-necks as are likely here (record pp. 70-72), as the Ordinance states that this frontage shall serve as the principal means of access to the property. The word “access” connotes admission or entrance; hence, as here, entrance to property proposed to be developed. To interpret otherwise would mean that new and lengthy streets could be constructed to funnel into inadequate existing streets. Consider, then, such a situation at a time of need for fire apparatus.

The Ordinance as worded and punctuated can hold only this meaning. Upon the wisdom of this Ordinance, the Court does not comment; the Court interprets it as drawn. State, ex rel. Jack v. Russell, 162 Oh St. 281.

It is urged by the City, however, citing Columbus Motor Express v. PUC, 126 Oh St 11, that having the power to make this requirement, the City has the power to waive it. This may be true so long as no citizen is prejudiced by such a waiver. See Columbus Motor Express v. P. U. C., supra, at page 12, which states that:

“* * * it also had the power, in the exercise of its discretion, to waive the regulation if the public interest was not thereby affected.” (Emphasis added.)

This Ordinance was enacted by duly elected councilmen of the City of Cincinnati; thus, the very citizens who elect these councilmen have a right to demand that the requirements of ordinances be complied with so long as the ordinance remains in effect. Having enacted the ordinance, the City is estopped to waive its requirements so long as the citizens of the municipality demand adherence to those requirements. We Americans like to pride ourselves on the fact that we have a government of laws, not men. If the law sets forth certain essentialities, it is not within the province of those who administer that law to bend its requirements at their will to the detriment of those citizens who have a right to rely on the stability of the law. (See State, ex rel. Sprigley v. Woodworth, 33 Oh Ap 406, par. 3 of Syllabus.) (From the record presented to the Court §713.11 R. C., would not apply.)

Upon the evidence presented, therefore, this Court must And that the requirements of City of Cincinnati Ordinance 1311-3a as it applies to multiple dwellings in Residence “B” Districts have not been complied with.

Accordingly, an injunction lies to enjoin further construction of multiple dwellings in the proposed area under the provisions of the present ordinance.

Please present your entry accordingly.


text:
    BARAMORE, Plaintiff, v. WASHING, Defendant.
    Common Pleas Court, Montgomery County.
    No. 112197.
    Decided March 4, 1959.

      Landis, Ferguson, Bieser & Greer, for plaintiff.
    Curtner & Brenton, for defendant.
   OPINION

By McBRIDE, J.:

The original petition filed August 6, 1957, alleged a negligent act on April 18, 1956, and asked for judgment in the amount of $7,856.91. The praecipe requested summons endorsed: “Action for money only, amount claimed $7,856.91 plus costs.” On January 26, 1959, plaintiff filed an amended petition which included a prayer for $33,256.87. No praecipe was attached and no summons issued. The amendment was filed more than two years after the date of the accident.

The defendant filed a motion seeking to strike the claim of damages of $33,256.87 from the prayer.

* * # * *

The amount of the prayer is a substantial and an essential element required by statute to be stated in the petition (§2309.04 R. C.), the praecipe (§2703.02 R. C.), and in the summons served upon the defendant (§2703.03 R. C.). The prayer is not a part of the cause of action. Suburban Mortgage Co. v. Hopwood, (2d Dist.), 83 Oh Ap 115.

Service of process, containing the amount for which judgment is requested, or a waiver of such process by the defendant is necessary to establish the jurisdiction of the court to award a money judgment. In event of default the statute expressly states that “judgment shall not be rendered for a larger amount than the amount prayed for and costs.” Sec. 2703.03 R. C. This provision of the statute has been applied frequently in many cases which may be found in the annotations. In default cases the answer to the problem is clear because a judgment in excess of the amount prayed for violates the provisions for due process under the Ohio practice.

In the instant case the defendant entered his appearance on the original petition and, after the statute of limitations has expired, objects to an amendment increasing the amount claimed by about $25,000.00 because (1) the amendment was without leave of court, (2) there was no process and (3) because there may be no new “action” after the expiration of two years. The permission of the court is invariably granted on amendments to the cause of action, but in this instance the permission is dependent upon the solution of the remaining questions relating to the commencement of an action.

Sec. 2305.10 R. C., requires an action for bodily injury to be brought within two years. An action is defined as an ordinary proceeding in a court of justice, involving process, pleadings, and ending in a judgment. Sec. 2307.01 R. C. By definition, process is an essential part of an action.

Courts are liberal in allowing amendments to conform to the facts or the evidence providing no new cause of action is asserted. An increase in the prayer of approximately $25,000.00 is a substantial change, or new demand, which is not within the discretion of the court unless additional process is obtained. The Court of Appeals of the Second District said in Kleinhans v. American Guage Company, 83 Oh Ap 453, 38 O. O. 487, that an amendment increasing the amount claimed “could not be made without new service being had and a continuance granted.” This is the rule which has been applied in this court and apparently in some other courts of common pleas. Abrams v. Clark (CP), 76 Abs 49. And the statute of limitations has been similarly applied to this situation by several members of this court in unreported cases.

In discussing this question the distinction between a cause of action and an action is significant. Increasing the amount claimed does not change the nature of the cause of action because it is no part of the cause of action. Suburban Home Mortgage Co. v. Hopwood, 83 Oh Ap 115. However, it does require additional process or procedure within the statutory definition of action as used in the statute of limitations. Cause of action is the right upon which the action is based. The cause of action is reflected in the facts which create it. The statute of limitations applies to the procedure whereby the cause of action is enforced. Once the statute of limitations has expired the only additional relief, by amendment or otherwise, that the court may grant within its discretion is confined to the facts setting forth the cause of action and to such facts as do not require a new action or additional relief equivalent to a new action, such as service of process. Where the party must resort to additional action and additional process in order to assert a new or a substantially greater demand, the statute of limitations is applicable. An increase in the prayer and the amount claimed in an amended petition is therefore barred by the statute of limitations because it requires new action or additional proceedings within the definition provided in 5=2307.01 R. C.

The court is aware that the Court of Appeals of the Eighth District in Masterson v. Alger Company, 78 Abs 89, held that an amendment of a petition alleging negligent injury made more than two years after the alleged injury, increasing the .amount of damages prayed for does not change the cause of action, and such amendment relates back to the time when the action was commenced. The meager facts do not disclose whether process was issued, nevertheless the judgment obtained was less than the prayer of the original petition. The citations relied upon in that case do not relate to the specific question. Other arguments and decisions on both sides of this question may be found in 15 Cin. Law Review, 423, which reports strong dictum on both sides of the question. In view of the conflict and the possible contrary holdings in the courts of appeal the question can only be resolved by each court continuing to follow its local precedents until such time as the problem is finally resolved.

In Holibaugh v. Cox, 167 Oh St 340, an insurer assignee was permitted to be joined after the statute of limitations had expired, however in that case the injured party had timely commenced an action for the full amount and the addition of the proper party did not in any way change the amount of the prayer nor did it require additional process. A liberal tendency is apparent in N. R. M. Ins. Co. v. Gross, 142 Oh St 132, which approved a counterclaim which was not barred by a statute of limitations at the time the action was commenced.

In the instant case no process was issued on the amended petition and therefore the case of Kleinhans v. American Guage Company, supra, is decisive in this appellate district, and the motions to strike in this case and in cases No. 112196 and No. 112198' are sustained. In case No. 112196 the increase sought is from $7,500.00 to $20,000.00 and in case No. 112198 from $7,870.00 to $10,660.00. Further, in view of the substantial change sought in the amendment and because of the necessity for additional action and process after the expiration of the statute of limitations, leave to increase the prayer of the petitions is denied.