author: By HOY, J.:

text:
    HALABY et, Plaintiff, v. BOARD OF DIRECTORS OF THE UNIVERSITY OF CINCINNATI, Defendants.
    Common Pleas Court, Hamilton County.
    No. A-137602.
    Decided June 23, 1953.
    Halaby & Haughey, for plaintiff.
    Henry M. Bruestle, City Solicitor, Maurice W. Jacobs, Asst. Solicitor, Cincinnati, for defendants.
   OPINION

By HOY, J.:

This case is before the Court on the demurrer of the defendants to plaintiff’s petition.

The petition is brief and the allegations thereof are, therefore, quoted in full.

“Plaintiff is a minor, aged 17 years, and brings this action by his father and next friend, Assad S. Halaby.
“Defendants comprise the Board of Directors of the University of Cincinnati, a Municipal University, located in Cincinnati, Ohio. Plaintiff is a student, regularly enrolled and attending classes, at the said university.
“Neither plaintiff nor his father are citizens of the United States. Plaintiff entered the United States as an immigrant with his parents, and plaintiff’s father has declared his intention of becoming an American citizen. Plaintiff’s father has purchased a home and started a business within the corporation limits of Cincinnati, and has no intention of moving elsewhere.
“Plaintiff has been required as a condition of admission to the said municipal university to pay non-resident tuition rates, under the interpretation of §4003-20 GC, which reads as follows:
“Sec. 4003-20 GC: Citizens not to be charged. Citizens of such municipalities shall not be charged for instruction in the academic department ....
“adopted by the Board of Directors of the said university, to wit: that a “citizen of such municipality” must be a citizen of the United States, whereas plaintiff contends that the above phrase refers to domicile within the municipality only.
“WHEREFORE plaintiff prays for a declaratory judgment setting forth his rights herein, and for such other and further relief as may be equitable, and his costs herein.”

Construing the allegations of this petition liberally in favor of the plaintiff, the Court concludes that the defendants’ demurrer admits that plaintiff is not only a resident of the City of Cincinnati, but also that he is legally domiciled therein.

The question to be decided is whether a resident alien legally domiciled within the City of Cincinnati is entitled to instruction without charge in the Academic Department of the University of Cincinnati by virtue of the provisions of §4003-20 GC, which is as follows:

“Sec. 4003-20 GC. Citizens not to be charged. Citizens of such municipalities shall not be charged for instruction in the academic department, except in professional courses therein. Such board of directors may charge fees for any purpose to students in other departments and to students in professional courses in the academic department, and may charge fees for purposes other than instruction to students in the academic department. From time to time they may make such university, college or institution free in any or all of its departments to citizens of the county in which it is located.
“The board of directors may receive other students on such terms as to tuition or otherwise as they see fit.”

Plaintiff contends that the phrase “citizens of such municipality” means bona fide residents of such municipality who are legally domiciled therein while defendants contend that it means persons possessing United States citizenship who are legally domiciled in such municipality.

Unfortunately, the term “citizen” is often loosely used and examples may be cited in which the legislature has used the term without necessarily meaning United States citizenship. For instance, §13008 GC provides a penalty for failure or neglect to provide for ones children “living in this state.” Sec. 13021 GC is as follows:

“Citizenship once acquired in this state by a father or mother of a legitimate or illegitimate child living in this state, for the purpose of this subdivision of this chapter (§§13008 to 13021 GC), shall continue until such child has arrived at the age of sixteen years, provided said child so long continues to live in this state.”

It could hardly be argued that the legislature intended to exempt resident aliens from the provisions of this statute. It would also seem unreasonable to suppose that when the legislature enacted §4386 GC empowering Village Marshals to “call upon the citizens to aid him” in supressing riots, disturbances and breaches of the peace, it meant that lawfully domiciled aliens who had filed declarations of their intention to become citizens could not be called upon for such assistance.

Furthermore, if the legislature had intended to require United States Citizenship when it enacted §4003-20 GC, it might easily have spelled out such requirement as it has in so many other enactments. For instance, §8623-4 GC provides that any number of natural persons, not less than three, a majority of whom are citizens of the United States, may form a corporation. Sec. 8623-98 GC provides that any number of natural persons, not less than three, a majority of whom are citizens of the United States, may form a non-profit corporation. Sec. 4785-29 GC provides that “every citizen of the United States who is of the age of twenty-one years or over, who possesses the qualifications herein required, shall be entitled to vote at all elections.”

It is true that when §4003-20 GC was re-enacted in 1943 the legislature, as a part of the same Act (H. B. 217 — 120 Ohio Laws 475), enacted §4838-2 GC in which it required that the public schools be free to actual residents of the school district. It is strenuously argued by counsel for the defendants that in using the term “citizens” in §4003-20 GC and the term “residents” in another section of the same Act, the legislature plainly intended that only citizens of the United States were to be eligible to receive the benefits of the provisions of §4003-20 GC. It is clear that by the use of the term “citizens” in §4003-20 GC, something more than mere residence was intended but it is doubtful that the legislature would concern itself with the question of United States citizenship in dealing with school matters. So far as I can learn it has never done so in any statute dealing with the subject of education. It would be much more reasonable to infer that by the use of these two terms, the legislature intended that every child of public school age residing within the school district should be entitled to the free use of the public schools regardless of whether its parents were permanent or only temporary residents, whereas free tuition in a municipal university should be provided only to persons who were not only residents but who were actually legally domiciled within the municipality.

In dealing with the subject of education, the legislature has never indicated that it was in any way concerned with national, citizenship. On the contrary, it is interesting to note that United States citizenship is not a requirement for special consideration as to tuition in State supported universities and §4863 (a) GC is as follows:

“Tuition for non-residents. No provision of law shall prevent the boards of trustees of Ohio State University, Miami University, or Ohio University, from charging reasonable tuition for the attendance of pupils who are non-residents of the state of Ohio.”

The only reported case in Ohio in which similar statutory language has been construed is State ex rel Owens v. Trustees, 11 Ohio Reports 24 (1841) in which the Supreme Court uses the following language in construing the phrase “citizens of said township” in an Act providing for participation by religious societies in funds produced by the sale of ministerial lands:

“It is to be distributed to the different religious societies in proportion to their numbers; and in ascertaining numbers, all actually belonging, or adhering, to each society, of the age of fifteen years, or more, are to be taken into the account, provided ‘they are citizens of said township.’
“Here a question is raised as to the meaning of the word ‘citizen’ as used in this connection. That the word does not always mean one and the same thing is clear. Thus, we speak of a person as a citizen of a particular place, when we mean nothing more by it than that he is a resident of that place. When we speak of a citizen of the United States, we mean one who was born within the limits of, or who has been naturalized by, the laws of the United States. It can hardly be believed that the legislature, in using the word ‘citizen’ in this statute, intended to make a distinction between native or naturalized citizens, and resident aliens. Why should such distinction be made? Is there not as much need of religious instruction in the one case as the other? To me it seems clear that the word ‘citizen,’ as here used, should be held to be synonymous with the word ‘resident.’ ”

A similar conclusion was reached by the Supreme Court of Colorado in the case of Sedgwick v. Sedgwick, 50 Col. 164, 114 Pac. 488 in which one of the matters considered by the Court was an interpretation of the following section of the Divorce Code:

“Section 6. No person shall be entitled to a divorce in this state unless such person shall have been a bona fide resident and citizen of this state for one year prior to the commencement of the action, which fact shall be proven by the evidence of at least one credible witness other than the plaintiff; * * *.”

Syllabus 4 of this case is as follows:

“An alien who makes this state his home, in good faith, and has no residence elsewhere, is a citizen within the meaning of the statute (Laws 1893, e. 80, sec. 6; Rev. Stats., sec. 2116), and our courts are open to him to apply for divorce.”

In this ease the plaintiff’s father has declared his intention of becoming a citizen of the United States. He has purchased a home and is engaged in business in the City of Cincinnati. He is an actual bona fide resident of that municipality. His home is here and he has no home elsewhere. He has no intention of leaving Cincinnati. He is a taxpayer of the City of Cincinnati and his taxes presumably help to support the Municipal University at which his son is enrolled as a student. The plaintiff is amenable to the ordinances of the City of Cincinnati and the laws of the State of Ohio and of the United States. He is subject to be drafted into the armed forces of the United States. Indeed, if the plaintiff were not a high school graduate he would not only be eligible to attend the public schools of the City of Cincinnati free of tuition, but, being of compulsory school age, he would, by virtue of the provisions of §4849 GC, et seq., actually be compelled to attend such public schools and accept free tuition.

The intent of the law is said to be its spirit. The spirit of §4003-20 GC, in the opinion of this Court, was to provide free tuition in Municipal Universities to persons who are bona fide residents of the municipality who are actually domiciled therein and who, by reason of the payment of taxes, help to support such university. The Court concludes, therefore, that the phrase “citizens of such municipality” as used in §4003-20 GC has no reference to United States citizenship and means no more than “bona fide residents legally domiciled within such municipality.” Accordingly, the demurrer of the defendants will be overruled.


source: Caselaw Access Project

author: By HORNBECK, PJ:

license: Public Domain

text:
    SWIGART, Plaintiff-Appellant, v. SWIGART, Defendant-Appellee.
    Ohio Appeals, Second District, Montgomery County.
    No. 2209.
    Decided January 3, 1953.
    Scharrer, Scharrer & Hanaghan, Dayton, for plaintiff-appellant.
    Baggott & Johnston, Dayton, for defendant-appellee.
   OPINION

By HORNBECK, PJ:

This is a law appeal from an order of the Common Pleas Court of Montgomery County, Ohio, Division of Domestic Relations sustaining a motion of the defendant to change the custody of Georgia Lou Swigart, aged seven years, a child of the parties, from the mother to the father.

The plaintiff, the mother, had been granted a decree of divorce from the defendant, the father, for his aggression and the custody of the child awarded to the plaintiff. This decree was entered in November, 1946. Thereafter in 1948, a motion of the defendant to change the custody of the child from the mother to the father was denied. The motion upon which the order here under consideration was made was of date March 7, 1952, hearing had on April 21, 1952 and order entered on July 15, 1952.

On February 25, 1952, a Miss Irene Puncsak, a case worker for the Trumbull County Child Welfare Board, took the child from the home of its mother and it was placed in the Trumbull County Childrens’ Home and was in the custody of the home at all times from that date until the trial on the motion to change custody.

At the hearing on the motion to modify the custodial order, Miss Puncsak, the welfare worker, testified at length. The defendant’s other witnesses were himself, his mother, and two others who were interrogated only as to the reputation of the defendant and as to conditions in his home. Defendant also offered an affidavit of Merlin H. Gander, defendant’s Exhibit A, which stated that he was employed as Attendance Officer in the Warren County School System. The affidavit set out certain information purporting to have been taken from the attendance records of the Market Street School in the City of Warren, disclosing the number of days in 1950-1951 and up to January 18, 1952 that the child was absent from school. Also a certificate, defendant’s Exhibit B, made by the Clerk of the Municipal Court of Warren, Ohio, signed by the Clerk by a Deputy Clerk. The certificate set forth a charge of drunk and disorderly against the plaintiff of date March 24,1951 and a plea of guilty and a fine; a charge against the plaintiff of being a suspicious person, a plea of not guilty, a finding of guilty, fine, costs and 10 days, days, suspended on good behavior. This of date March 30, 1951, and a third notation of an action against Francis Brackett, who was the husband of plaintiff. The charge “creating a disturbance,” a plea of not guilty, a finding of guilty, a sentence of $10.00 and costs and 10 days, days suspended on good behavior. This of date March 14, 1952.

By way of defense to the motion, plaintiff, her married daughter, her landlord and landlady and a number of her immediate neighbors testified in her favor on the substantive question of her fitness to continue to have the custody of her child, the general condition of her home, her habits, the care that had been given the child, the reasons why she had not been in school, an accounting for plaintiff’s absence on the two occasions when it was charged she had deserted her child. As a part of their testimony, the witnesses whom the welfare worker had quoted in her questions to the plaintiff testified to facts which were not in accord with those included in the statements attributed to them.

In the examination of the welfare worker, in chief, it was recognized that she could not give hearsay testimony respecting the conduct of the plaintiff or conditions under which the child was taken to the Childrens’ Home but she was permitted to state what purportedly the landlord, the landlady, the roomer and the plaintiff’s husband had told her respecting the misconduct of the plaintiff, upon the theory that it was admissible inasmuch as she interrogated the plaintiff to determine if the statements which she had heard were true.

After the plaintiff had rested in her defense, the defendant then offered testimony of the welfare worker as upon rebuttal in which she was permitted generally to state what had been told to her by the various witnesses to whom she had talked. The trial judge found for the defendant and the judgment entry recites:

“that the circumstances affecting the welfare of the minor child, * * *, have become materially changed since February 20, 1946, and that it is for the best interest of the minor child that its custody be changed, for which reason the motion of the defendant is hereby sustained.” (Emphasis ours.)

In a written opinion, the trial judge set forth separate findings of fact upon which the order was predicated. We will discuss the findings later.

Appellant assigns nine grounds of error, seven of which relate to the introduction of evidence on behalf of appellee, two of which relate to the reception of Exhibits A and B, A, the affidavit of the Attendance Officer and B, the certificate of the Clerk of Courts and that the decision on the motion is contrary to law.

At the outset we observe in the judgment entry an adjudication upon a material issue which would require the determination that the order is contrary to law. The part of the entry to which we refer reads:

“finds from a preponderance of the evidence that the circumstances affecting the welfare of the minor child have become materially changed since February 20, 1946, * *

The last order respecting the custody of the child was made of date February 20, 1948 and the test in this proceeding was whether there had. been changed circumstances from that date until the date of the filing of the present motion. Second syllabus, Dailey v. Dailey, 146 Oh St 93.

The first question raised by appellant relates to the admission of evidence of defendant’s Exhibits A and B. Assignments of error A. and B. General exceptions were noted to the admission of these exhibits. In support of the action of the trial judge we are cited to §11523 GO which provides in part that:

“An affidavit may be used * * upon a motion and in any other case permitted by law.”

The statute is general, the result of which would leave to the discretion of the trial judge determination whether it was appropriate to permit the reception of an affidavit. We find no abuse of discretion. However, we do not believe that Exhibit A should have been received for the reason that it does not disclose that the affiant was the custodian of the attendance records; that it was his duty to make them; that he was in the employ of the Warren City School as Attendance Officer when the records were made. However, the admission of this testimony could not have been prejudicial because plaintiff admitted that the child was absent from school for about the same period of time as covered in the affidavit. On the question of the admissibility of affidavits in such matters we quote from State v. Budd, 65 Oh St 1, beginning on P. 5, as follows:

“The legislature had the common knowledge that the general and most satisfactory mode of presenting evidence, not documentary, is by the testimony of witnesses who appear in court so that an opportunity is afforded for cross-examination, and some helpful inferences may be drawn from the appearance and manner of the witness; that a less satisfactory mode of presenting the testimony of witnesses is by deposition where there is opportunity for cross-examination, although the witnesses do not appear in court, and that the least satisfactory mode of presenting such testimony is by affidavit where there is neither the appearances of the witnesses nor an opportunity for cross-examination. These less satisfactory methods of presenting evidence are specially provided for to meet considerations of convenience or necessity. While the legislature may have required affidavits as the predicate of actions to present evidence which shall enter upon the record, and may have permitted their use upon hearings of this character in view of exigencies which may require immediate judicial action, it is not to be presumed that there was an intention to compel a resort to the least satisfactory and reliable of all modes of presenting evidence.”-

Exhibit B is a certificate of the Clerk of the Warren Municipal Court which, if authorized and in conformity to the requirements of such a certificate, is admissible.

A Clerk of Court whose duty it is to record the proceedings the subject of the certificate has ordinarily implied authority to make certificate of such proceedings. But to be admissible it must contain facts and not conclusions involving the exercise of discretion or opinion. 32 C. J. S. 478. Upon an examination of the certificate we are in doubt if it sets out an exact copy of the docket or record from which it purports to be taken. We cannot from the record say that it was prejudicial error to accept this certificate when tendered. That part of the certificate relating to an arrest and conviction of plaintiff’s husband could have been stricken for the reason that it appears that he was not a member of the household after that date.

Assignment of error C relates to certain questions at pages 35 and 36 of the record. Some of the answers were objectionable but there was no motion to strike. The last question and answer in the examination in chief was improper but probably not prejudicial. This question asked the witness if she had formed an opinion from what she had been told.

Assignment D relates to the admission of evidence to the effect that- defendant received a letter from plaintiff with the return card on the envelope, “Anna Cononico.” The daughter of plaintiff had a child by Cononico who after-wards married her. Upon inquiry by the Court as to the purpose of the testimony, counsel for defendant said:

“The purpose of it is, Your Honor, that at that time it will be the testimony that the present Mrs. Brackett was living with Cononico who is now married to the daughter, Louise, and by whom he had an illegitimate child which fact was not, of course, in existence at the time of the last motion.”

There was not one syllable of evidence to support the statement of counsel that the testimony would develop that Mrs. Brackett at any time lived with Cononico. There was no attempt to first produce the envelope with the purported return card on it. There was no showing that it was missing. The testimony being of such slight probative effect was not in itself, in probability, prejudicial but the statement of counsel in view of the fact that there was no evidence forthcoming to support it was highly prejudicial. Finally it appeared that the letter had been received before the hearing to modify in 1948. Counsel for plaintiff objected to all of this testimony as it developed insisting that the time be fixed. This should have been done. The date when fixed made the testimony inadmissible but there was no motion to strike and technically no error in its admission.

E is directed to the reception of evidence of defendant at pages 65 and 66 of the record. It was in the discretion of the trial court to admit this testimony.

F. This assignment is directed to testimony of defendant at pages 84 and 85 of the record, practically all of which was hearsay and clearly incompetent but we find no objection to the testimony on that ground.

G relates to the admission of evidence of defendant explaining why he had entered a plea of guilty to a charge that he had committed an assault and battery upon the child when she was two and one-half years old. His explanation was that although he had so plead he was not guilty but had entered the plea to get away from his home and the plaintiff.

A plea of guilty entered in a criminal case may be accepted as an admission against interest but it is not conclusive against the defendant in a civil action and may be controverted. Clark, et al v. Irwin, 9 Ohio 131. Hendricks v. Fowler, 16 O. C. C. 597.

H relates to the introduction of evidence on page 151 of the bill. This related to answer of the witness, the plaintiff, that the daughter, who married Cononico, had been going with him. It was moved that it be stricken. The motion was properly overruled. All of this testimony respecting the birth of a child to a daughter of the plaintiff, of whom the defendant was the adopter father, had no probative effect on the question of the fitness of the mother to have the child or of any neglect toward her by the mother. There is no showing whatever that the daughter was in the home of the plaintiff when the baby was conceived or born, it is otherwise, and it is difficult to see any substantial relation between this incident and the fitness of the mother to have the custody of her child.

I, That the order of the Court sustaining the motion of defendant to change the custody of the child is contrary to law. As we have before indicated the judgment entry in itself is contrary to law because the basis therefor, as stated therein, will not support the order.

This assignment, as it relates to the evidence, requires consideration of the status of the record upon which the trial judge resolved the evidence for the defendant and against the plaintiff. It should be noted that the burden of proof was upon the defendant to establish one or more of the grounds of his motion.

We have heretofore noted the extent to which the welfare worker was permitted to inject what she had been told by several witnesses upon the theory that she had directed the attention of the plaintiff to these statements.

Let us examine the competent testimony in the light of the specific grounds of the motion which are that since the order of 1948:

(1) The plaintiff, * * *, has repeatedly deserted the minor child. Once from January 14 to January 18, 1952. _

(2) The plaintiff again deserted said child in February 1952 as a result of which neglect and desertion the Juvenile Court of Trumbull County, Ohio, has awarded the temporary custody of said child to the Child Welfare Board of Trumbull County, • Ohio.

(3) The plaintiff has deserted the minor child when she was ill, had contributed to the delinquency of said child by failing to keep her in school and permitting her to become a truant.

(4) Plaintiff has neglected the child in other respects and has conducted herself in the home in such a manner as to tend to cause the child to become a delinquent child.

The first two of the grounds of the motion are specific charges of desertion on the date set out. The second ascribes the commitment of the child to the Welfare Board as a result of these desertions.

Although a great part of defendant’s testimony is that of Miss Puncsak, the welfare worker, there is not a syllable of competent evidence that the child was ever legally committed to the Welfare Board, or to the Childrens’ Home, or that any proceedings whatever had been begun to so commit her. True, it is commonly conceded that Miss Puncsak removed the child from its mother’s home to the Childrens’ Home but by what right the child was so placed does not appear. The hearing took on an aspect of justification of the action of Miss Puncsak which was of little or no moment on material issues on the motion.

The third and fourth grounds of the motion again charge that by desertion and neglect of the child in the home plaintiff contributed to, and tended to contribute to, the delinquency of the child by causing her to be a truant from school. It is basic that before there can be a contributing to delinquency there must be a delinquency. Peefer v. State, 42 Oh Ap 276. Of the four grounds constituting delinquency §1639-2 GC, the only one that could have any application here is the 3rd, “Who is a habitual truant from * * * school.” It cannot be asserted that the minor was a truant from school. The word “truant” connotes volition. Before the child could have been a truant she must have willfully absented herself from school. There is no support whatever for the 3rd and 4th grounds if all of the testimony, competent and incompetent, be given full weight against the plaintiff.

The only possible sources from which any support for the first and second grounds of the motion respecting the desertion of the child by plaintiff is from the testimony of Miss Punesak, the welfare worker. She was first called, in chief, by the defendant. She had visited the home of plaintiff on the two days set out in these grounds of the motion, viz: January 18, 1952 and February 25, 1952, she also called on the 21st of January. The mother was at home on January 21st only. On January 18, the child was at home as was a Frank Shrock, a roomer. The home was a five room basement apartment, one of three apartments. The landlord and landlady lived in the ground floor apartment immediately above plaintiff’s apartment. All of the physical appointments in the home were approved by Miss Punesak. The child was well- dressed, had ample clothing and food. It appeared that she had a cold and slight fever. There was nothing in the personal observations of Miss Punesak indicating any neglect of the child. The witness testified that she had conversations with the roomer, the landlord and the landlady on some of these visits but on no one of these occasions was the plaintiff present. When the witness was interrogated concerning these conversations, the trial judge recognized that they were wholly incompetent but counsel thereafter ingeniously framed his questions to include all of the purported hearsay statements and inquired of the plaintiff if these statements which had been made to the witness were true. In all instances, as to any matter material to the charges against her, plaintiff made denial of their truth. The court would have been well within his rights, and it would have been only fair to the plaintiff, had he refused to accept this testimony and counsel, if he knew what the answers would be, should not have propounded such questions. This testimony was admissible, if at all, insofar as it elicited admissions against interest. As there were no such admissions the testimony was entirely without probative effect.

But this was not the end of this type of testimony. The plaintiff offered the testimony of the landlord, the landlady and plaintiff’s husband all of whom pronounced her an exceptionally fine mother, stated that the child was well cared for at all times, had her own bedroom at her mother’s home and another with the landlady who, by arrangement with the mother, took care of the child whenever the mother was absent from her home. Frank Shrock did not testify and it appeared that he had left the home of plaintiff before the child was taken away. Thus, the statements attributed to him by Miss Puncsak in her testimony, in chief, were left to stand as admitted.

There was no foundation laid by the defendant for the impeaehment of any of these witnesses. That such foundation must be laid as a predicate for impeaching testimony is well recognized in Ohio. Kunkel v. Cincinnati St. Ry. Co., 82 Oh Ap 341.

Notwithstanding the failure of defendant to lay any foundation for impeaching testimony, defendant at the conclusion of plaintiff’s case again called Miss Puncsak to the stand for the purpose, as stated, of rebuttal and she was permitted to fully restate what the foregoing witnesses had said to her in the absence of plaintiff when she called at plaintiff’s home and when defendant’s husband called at the office of the witness. This testimony was admissible neither by way of impeachment nor as substantive proof.

We examine some of the authorities touching the reception of such testimony as we have recited.

“The rule is almost universally recognized that evidence of extra-judicial statements made by a witness who is not a party and whose declarations are not binding as admissions is admissible only to impeach or discredit the witness and is not competent as substantive evidence of facts to which such statements relate, * * *.
“The reason supporting the rule is that if such statements were taken as proof of the facts stated, the testimony would be hearsay.” 58 Am. Jur. 421.

“When it is made to appear to the Court that the purpose or the effect of offering impeaching testimony is or will be to bring incompetent evidence to the knowledge of the jury, it is the duty of the court to require that such impeaching testimony be confined to a denial or an affirmance of a question or questions for which a foundation has been laid and which do not include incompetent evidence.” 4th syl., Weaver v. State, 120 Oh St 97.

Judge Robinson, the writer of the opinion in this case, after discussing a situation somewhat analogous to ours, said page 108:

“* * *, and, aside from that, even though the foundation had been laid at the rooming house, the right to impeach extended only to the remark which the witness testified she made or denied that she made.”

In Brown v. State, 10 Abs 582, Judge Lemert discussing the limits of impeaching testimony says:

“It is a well settled rule that a witness may be impeached as to statements made material to the issue, which were made at a previous time and materially differ from a statement made at the trial of the case. * * *. No witness can be allowed to testify verbally as to what another said not in the presence of the defendant, not even to impeach, so when it is justifiable to allow a written statement so made to be used, first, for the impeachment of the witness about something-said out of the defendant’s presence and secondly, to permit the statement to be introduced, to go to the jury, to be a silent witness against the defendant, we believe to be prejudicial to the right of defendant.”

Facts not admissible in chief cannot be introduced indirectly under the guise of impeachment Simpson v. Newinger, 28 Oh Ap 133.

We recognize that a trial judge who is hearing a case is not so limited in receiving testimony as a jury because it is presumed that he will consider only proper evidence in reaching his decision. We are satisfied, however, that unconsciously, no doubt, the trial judge permitted improper and highly prejudicial testimony to influence his order.

The findings upon which the order was entered are, in part, upon matters not responsive to or at issue by the motion, in other instances insufficient to support the order.

We briefly analyze the findings:

A. “That the child had been absent from school fifty-two and one-half days in the first year, and 13 days in the second year of school.”

This conclusion is inadequate because there is no further finding that the absence was not excusable or that the plaintiff was chargeable with any neglect causing the absence from school.

B. “That the mother had left the child for three and four days at a time, to be cared for by neighbors.”

No proof that any neighbor other than the landlady took care of the child at any time. The finding is inadequate to establish that the child was negligently left with the neighbors or because of any desertion by the mother, as charged in the motion, and could be reached only by resort to incompetent hearsay testimony. All of the substantive testimony, which was not refused in any proper manner, accounts for the whereabouts of the mother on the dates involved and establishes that the child was taken care of by the landlady upon arrangements therefor made by the mother. Of course, the court had the right to disbelieve all of this exculpating testimony but this would not substitute for lack of evidence upon the part of the defendant.

C. “That the mother drinks alcoholic beverages to excess and becomes intoxicated.”

This finding does not respond to any of the grounds of the motion. It could only be germane upon the fitness of the mother to have the custody of her child, if, and when, some ground of the motion was established. Certainly the act of the mother in drinking was misconduct which we would not condone. But, unless and until it was coupled up with neglect or desertion of the child by the mother it would be entirely inadequate. There is no competent testimony tending to establish any neglect of the child because the mother drank. The finding conforms to the gist of the incompetent testimony.

D. “That the mother had an unmarried male person living in the home with her and the child during the absence of the mother’s present husband.”

This does not conform to any of the charges in the motion. It does not establish any wrong doing on the part of the mother. Such further finding is essential to any inference of improper home surroundings for the child. If it is intended by the language “living in the home with her” to imply improperly living in the home with her, such determination can be made only by consideration of incompetent and inadmissible testimony. If any credence be accorded the plaintiff’s witnesses, including her husband, the presence of the roomer was entirely proper under the circumstances appearing.

We find no prejudicial error as assigned in A, B, C, E, F, G and H of the assignments of error.

We find assignments of error D and I established requiring a reversal of the order and a remand to the trial court for further proceedings according to law. It will be so ordered.

MILLER, J, WISEMAN, J, concur in judgment.


author: By THE COURT:

text:
    SPRINGFIELD (City), Plaintiff-Appellee, v. KURTZ, Defendant-Appellant. SPRINGFIELD (City), Plaintiff-Appellee, v. SMITH, Defendant-Appellant. SPRINGFIELD (City), Plaintiff-Appellee, v. MANTEL, Defendant-Appellant. SPRINGFIELD (City), Plaintiff-Appellee, v. MATLOCK, Defendant-Appellant.
    Ohio Appeals, Second District, Clark County.
    Nos. 480, 481, 482 and 483.
    Decided April 2, 1951.
    Robert C. Acton, City Solicitor, Thomas D. Hodge, Special Counsel, Richard T. Cole, Asst. City Solicitor, Springfield, for plaintiff-appellee.
    William T. Gillie, Urbana, for defendants-appellants.
   OPINION

By THE COURT:

All of the above numbered cases present the same questions of law in this Court.

The facts are not in dispute, and are either admitted by the pleadings or stipulated by the parties. An ordinance of the City of Springfield, Ohio, No. 4741, enacted May 24, 1948, provided among other things that a 1 % tax was levied upon * * *, all salaries, wages, commissions and other compensation earned by the residents of the city from and after July 1, 1948. The appellants were residents of the city on and after July 1. 1948 and earned their salaries for services performed outside of the city. The defendants not paying the tax levied under the ordinance, the City instituted its action in Municipal Court to collect the tax claimed to be due. To the petitions of plaintiff-appellee defendants demurred generally upon the ground that they did not state causes of action. The court overruled the demurrer and after answers filed by defendants and agreed statement of facts entered judgment for the plaintiff in each of the cases. The appeal is prosecuted on questions of law and two propositions are urged. One is that the ordinance denies equal protection of the law to the taxpayer and, two, that the City of Springfield has no power and authority to levy and collect a tax on income of a resident earned outside the limits of the city.

The first question is directed particularly to what it is claimed is a discrimination against the plaintiffs in that they are required to pay the tax levied upon all of the income earned by services performed outside of the City of Springfield, whereas corporations having their principal office and place of business in the city, or an office or place of business in the city, are required to pay only “on such part of the net profits as is earned by such corporations as a result of work done or services performed or rendered and business or other activities conducted in the city.”

We had this identical question in the City of Springfield, Ohio, v. Krichbaum, No. 477, Clark, and the City of Springfield, Ohio, v. Scheetz, No. 478, Clark, which was resolved against the contention of the appellants here. We follow the holding there made.

In probability the second question presented on this appeal is likewise determined by the above cited cases because, if the classification upon which taxes are to be levied is sound and constitutional, it follows that the taxes levied thereunder are constitutional. Independent, however, of the effect of the cited cases upon the second question presented, it has been determined without exception against the claim of the appellants here. In Lawrence v. State Tax Commission of the State of Mississippi, 286 U. S. 276, 87 A. L. R. 374, a tax levied by the state was held to be valid and constitutional upon incomes of residents of the state produced from tangibles located outside the state of the owner’s domicile. In an annotation, beginning at page 380, many cases are cited which hold that a tax such as was under consideration in the principal case would not violate the “equal protection of the law” provision or the “due process” provision of the state or federal constitutions. The questions presented in the cases set out in the annotation are analogous to that which is before us in the cases on appeal. Attention is especially directed to People ex rel. Woolworth v. State Tax Commission, 192 N. Y. Supp. 772 which involved a tax imposed by the New York Income Tax Law on every resident of the State with respect to “his entire net income,” defining it in detail and including income derived from any source whatever. The tax was held to be valid and the tax payer included anyone who was a resident of the state.

The basis of the tax against a resident is the benefit, protection, service and opportunities which are afforded to him by the political subdivision wherein he is a resident.

The case of Angell v. Toledo, 153 Oh St 179, is discussed by counsel and it is urged by appellees that it is dispositive of the second question presented here. Examinating the propositions of the syllabus alone it might be so urged, but reading them in the light of the two questions presented for decision, as must be done, they do not expressly decide our question.

We are satisfied that that part of the ordinance which is questioned by this appeal is a valid and constitutional enactment as against the claims urged by the appellants.

The judgments will be affirmed.

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


author: By BELL, J.

text:
    STATE, ex rel. LOVE, Plaintiff, v. JONES, Defendant.
    Common Pleas, Court, Hamilton County.
    No. 35292.
    Decided March 17, 1953.

      Edward Benson, Cincinnati, for plaintiff.
    Julian R. Forney, Cincinnati, for defendant.
   OPINION

By BELL, J.

Two questions, other than the guilt of the defendant, have been raised;

First: Can a proceeding in bastardy be instituted and maintained in the name of the State of Ohio?

Second: Can the proceeding be instituted and maintained by the complainant while she is a minor?

By virtue of the provisions of the bastardy statutes, prior to 1953 the state was the only interested party, the only purpose of the proceeding being to provide for the maintenance and support of the bastard child. The proceeding was not for the benefit of the mother. The law at that time regarded both the mother and father as equally in fault, and was only solicitous to provide for support of the innocent child. (Perkins v. Mobley, 4 Oh St, 668.)

In 1923 the Legislature (110 O. L., 296) rewrote the bastardy act and radically changed the proceeding. By that act the Legislature authorized such a proceeding for the sole benefit of the mother of the child, and since that time the state has had no interest in any bastardy proceeding.

In Pammull v. State, ex rel., 22 Oh Ap, 34, the question presented was whether a charge to a jury in a bastardy case in which it was stated: “This proceeding is a statutory rem'edy provided by our law, not wholly in the interest of and for the benefit of the prosecutrix, but another object and purpose is to protect the state and county against the possible necessity to care for a child that may be illegitimate” (emphasis added) was erroneous and prejudicial. It was held that the rights of the state or the county were not affected by the verdict of the jury or the judgment of the court. The conclusion reached was that such a charge was both erroneous and prejudicial, and the judgment was reversed.

That case was decided in 1926, shortly after the act of 1923, and although today the sections are differently numbered, they provide substantially the same procedure as was provided by the act of 1923.

Under the present statutory provisions on the subject of bastardy, the Supreme Court in 1951 was called upon to consider and determine whether the state was an interested party.

In Freeman v. Morris, 156 Oh St; 333, 46 O. O. 188, paragraph 2 of the syllabus reads as follows:

“2. In a bastardy proceeding, the sole issue to be determined is whether the defendant is the father of complainant’s child. A statement in the court’s charge, that, ‘the state of Ohio is interested in that the child not become a charge on the community so you see that it is not only Miss Freeman who is interested in the outcome of this case but it is also the state of Ohio,’ is erroneous and prejudicial to the defendant.”

At page 338 Judge Matthias uses this language:

“The single issue to be determined by the jury was the question of fact whether the defendant is the father of complainant’s child. That was the only issue to be submitted to the jury, and the defendant was entitled to have that, issue submitted clearly and distinctly without the accompanying extraneous statement in the court’s charge, which is as follows:
“The state of Ohio is interested in that the child not become a charge on the community so you see that it is not only Miss Freeman who is interested in the outcome of this case but it is also the state of Ohio.”
“The inclusion of such statement in the court’s charge was erroneous and prejudicial.”

In the case of State, ex rel. Gill v. Volz, 156 Oh St, 60. 45 O. O. 63, the Supreme Court traced the history of the bastardy statutes and the previous decisions of the court under those statutes, and concluded that while a bastardy proceeding partakes of some features of a criminal prosecution and some features of a civil action, it is to all intents and purposes a civil proceeding.

In the case of Duncan v. The State, ex rel. Williams, 119 Oh St, 453, paragraph 2 of the syllabus reads as follows:

“2. A bastardy proceeding is subject to the procedure provided in the code of civil procedure, and a judgment rendered in such a proceeding can only be reviewed if an error proceeding is filed within seventy days from the date of the entry of judgment in the court from which such error proceeding is prosecuted.”

There being no provision in the bastardy act for any appeal, the court held that an appeal was governed by the Code of Civil Procedure.

The statutes (§8006-1 to §8006-24 GC) and the decisions of the Supreme Court make it abundantly clear that the state is in nowise interested in a bastardy proceeding; and further that the Code of Civil Procedure applies to such a proceeding in the absence of some specific provisions in the bastardy act.

No specific provision is contained in the bastardy act which grants the right to institute the action in the name of the State of Ohio.

Sec. 11241 GC, provides in part:

“An action must be prosecuted in the name of the real party in interest. * * *”

It being clear that to charge that the State of Ohio is interested in the outcome of the proceeding is erroneous and prejudicial, it seems equally clear that to permit the papers captioned State of Ohio ex rel. v. defendant to be seen and examined by the jury during its deliberations would be equally erroneous and prejudicial.

Prior to the act of 1923, the proceeding was for the benefit of the state. It was brought in the name of the state and prosecuted by the state. Since 1923 the theretofore practice of bringing the action in the name of the state on the relation of the complainant, in most jurisdictions in this state has been continued. In my judgment, coupling the statute (§11241 GC) and the decisions, it follows that a bastardy proceeding must be instituted and maintained in the name of the complainant and not in the name of the State of Ohio.

Coming now to the second question.

“Can the proceeding be instituted and maintained by a minor?”

Sec. 8006-3 GC, provides:

“In case of the death or disability of an unmarried woman who would otherwise be eligible to make complaint as provided in §8006-1 to §8006-23, inclusive, GC, the executor or administrator of her estate, her guardian, a probation officer of the juvenile court, or a representative of the division of social administration acting as her guardian ad litem whether she be of age or not, may make and prosecute the complaint as if prosecuted by the mother herself. Such probation officer or representative acting as guardian shall be entitled to receive any sum paid by way of settlement or under order of court as trustee for the use of such unmarried woman, and to expend it in such manner as the court may order. Such executor or administrator shall be entitled to recover upon any bond or security given in accordance with said sections, for the benefit of the estate of such unmarried woman.” (Emphasis added.)

The important word in this section so far as this case is concerned, is the word “disability.” The word in its ordinary acceptation is one of broad meaning. A person who has lost a leg or an arm, or is blind or deaf, is under a disability, but such disabilities are not recognized as legal disabilities. When the word “disability” is used in a legal sense, it has a more restricted meaning. The two principal legal disabilities are insanity and minority.

A careful study of the above quoted section would indicate that if the mother be dead the proceeding must be instituted by her executor or administrator; or if she be under some legal disability such as insanity or minority, then the proceeding must be instituted by her guardian, a probation officer of the Juvenile Court, or a representative of the division of social administration acting as her guardian ad litem. The language of the section negatives the idea that a minor may institute and prosecute the proceeding. However, the plaintiff relies upon the case of Durst v. Griffith, 43 Oh Ap, 44. If the statement in the headnote of that case be the law, then no guardian is necessary for a minor in a bastardy proceeding.

In the Durst case, both the complainant and the defefndant were minors. Paragraph 3 of the headnotes reads as follows: “A minor complainant in a bastardy proceeding may institute the proceeding without the intervention of a next friend and no guardian ad litem is required for a minor defendant.” The court cited cases from other jurisdictions where the question of the right of a minor complainant to maintain a bastardy proceeding is discussed and decided. As stated, in most of those cases each turns upon the provisions of the local statutes.

In some states bastardy is defined by statute as a criminal prosecution (see: Hanna v. State, 60 Ala., 100; Miller v. State, 110 Ala., 67; Deller v. State, 22 Ind. App. 385). In Ohio and some of the other states it is treated as a special proceeding, partaking of certain attributes of a criminal prosecution and certain attributes of a civil action. It is often designated as quasi-criminal. (See: Pammull v. State, ex rel., 22 Oh Ap, 34; Duncan v. State, ex rel., 119 Oh St, 453; State v. Volz, 156 Oh St, 60; Freeman v. Morris, 156 Oh St., 333.)

In the Durst case the court followed the doctrine pronounced by the Supreme Court of Kansas in the case of State, ex rel. Bales v. Baker, 65 Kan., 117, in which it was held that the Kansas statute made no distinction between adults and minors; that it does not provide that a minor shall be represented by next friend or guardian, and that no guardian was necessary.

The Baker case, supra, was modified in State, ex rel. v. Jehlik, 66 Kan., 301 at 303 in which the court said:

“The statute it is true, provides that ‘any unmarried woman,’ may institute an action, and such terms without qualification are broad enough to include idiots and lunatics. There is language, however, employed in the same connection which clearly implies that only rational beings were within the contemplation of the legislature.”

In State, ex rel. Dietrich v. Murphy, 120 Kan., 350, the syllabus reads as follows:

“1. Bastards; maintenance and support — procedure. The statute pertaining to illegitimate children provides in part, a procedure of its own. To the extent it does so, that procedure must be followed; to the extent it does not do so, the procedure of the civil code applies.
“2. To institute a proceeding under the statute pertaining to illegitimate children is tantamount to commencing an action under the civil code.”

It is doubtful whether the Baker case, supra, is still the law of Kansas.

All of the six cases cited by Judge Mauck in the Durst case are to be found in the annotation to Easton v. Eaton, 112 Maine, 106, set forth in 52 L. R. A. (N. S.), 800.

In the Easton case it was held that as bastardy is a civil proceeding, it is reversible error to permit a bastardy case to be prosecuted against a minor without the appointment of a guardian.

Reverting to the Durst case, after stating, “We follow the doctrine of that case” (State, ex rel. v. Baker, supra), the court goes into a discussion of the then §11252 GC, and concludes that that section had no application to a bastardy proceeding.

Apparently §12134 GC, then in full force and effect, which section is now numbered §8006-3 GC, heretofore quoted, was not called to the attention of the court.

In Hobson, In re, 44 Abs, 86, Judge Hornbeck of the Second District Court of Appeals in a concurring opinion used this language:

“The basic difficulty with the proceeding under consideration is that the court was dealing with a minor who in law is presumed not to be qualified to determine for herself her own legal rights. Here was a mother in dire extremity, and as she was a minor, the law, to protect her, places certain safeguards around her.”

In that case a Juvenile Court made an order depriving a mother who was a minor, of the custody of her child, and in reversing that order the quoted language was used.

Judge Hornbeck also points out that “there is apparent conflict between this adjudication (Durst case) and the Supreme Court cases which we have heretofore cited.”

In my judgment, had §12134 GC then in force (now §8006-3 GC) been called to the court’s attention, the conclusion contained in headnote number 3 (heretofore quoted) would not have been reached.

To me, the conclusion is irresistible that a bastardy proceeding cannot be instituted or maintained in the name of the State of Ohio, nor can such a proceeding be instituted or maintained by a minor complainant.

It follows that this case must be dismissed without prejudice • to the institution of a proper proceeding in accordance with law.


author: By PHILLIPS, PJ.

text:
    GREZLIK et, Plaintiffs-Appellants, v. LISBON COAL COMPANY et, Defendants-Appellees.
    Ohio Appeals, Seventh District, Jefferson County.
    No. 1039.
    Decided January 9, 1951.
    Chauncey Hawthorne, John R. Spon, William Rogers, Steubenville, for plaintiffs-appellants.
    Robert Quinn, Steubenville, for defendants-appellees.
   OPINION

By PHILLIPS, PJ.

In this opinion the parties will be called plaintiffs and defendants.

Plaintiffs leased coal lands and buildings thereon, situated in Jefferson County, Ohio, to defendant Albert Felix, by an instrument in writing dated June 28, 1945, which is duly recorded in that county, and which provided inter alia as follows:—

“Witnesseth, that the said parties of the first part for and in consideration of the sum of One Dollar ($1.00) and other good and valuable considerations, the receipt of all of which is hereby acknowledged, do hereby exclusively lease unto party of the second part the side-track located on Railroad Siding at Amsterdam, Springfield Township, Jefferson County, State of Ohio, if owned by parties of first part, or party of the second part to get permission to use side-track from Railroad Company, if side-track is owned by Railroad Company.
“* * * Party of the second part agrees to pay unto party of the first part rental for aforementioned property, buildings, etc., at the rate of Fifty Dollars ($50.00) per month. Rental to be paid in advance from month to month at the beginning of the month for the month. This lease to continue as long as rental payments are made.”

The execution of the lease was acknowledged before J. K. Smith, Justice of the Peace, as follows:—

“Sworn to and signed in my presence this 20th day of September, 1945.
J. K. Smith Justice of the Peace
“My Commission Expires January 1, 1948.”

Subsequently defendant Felix subleased such lands to John Paul Jackson, and both of them were notified in writing by defendants on August 29, 1947, that such lease was terminated and demand made for possession of such leased real property on October 1, 1947.

On October 27, 1947, plaintiffs sued defendants in the court of common pleas in ejectment and for damages for waste committed on the leased lands.

Between October 27, 1947, and October 15, 1948, defendant Felix subleased the leased lands to defendant Lisbon Coal Company.

On October 15, 1948, plaintiffs sued defendant Lisbon 'Coal Company in the court of common pleas seeking the same relief as that sought in the prior action, to which reference has been made. Defendant Lisbon Coal Company filed its answer in that action on November 3, 1948. Subsequent thereto by amended petition plaintiffs made defendant Felix a party to that action, and he filed an answer therein on June 6, 1949.

Subsequent to the eviction notice plaintiffs refused all payments and tender of payments made by defendant Felix.

It is urged by assignments of error filed in this court by plaintiffs in support of their appeal on questions of law that the trial judge erred to plaintiffs’ prejudice in determining “this cause solely on the agreed statement' of facts and rendering a judgment thereon,” and “in determining that the issues in this case were to be determined solely upon the agreed statement of facts”; in rejecting final judgment for defendants; in overruling their motion for a new trial; that his decision and judgment for defendants entered thereon are against the manifest weight of the evidence and are contrary to law; and that “the primary controverted questions in this case are: First: Was the lease executed by Bennie Grezlik and Basilio Tomasi, plaintiff appellants with Albert Felix, lessee, on the 28th day of June, 1945, a valid lease? Second: If said lease was valid, has the term expired?”

Plaintiffs contend that such lease is invalid because it is indefinite, contains no date of beginning nor termination, and was not executed properly.

Counsel for plaintiffs further contend that the provision “rental to be paid in advance from month-to-month, at the beginning of the month for the month” is “the only language in the entire instrument bearing on the duration of the term,” which by the terms and language of the lease created a tenancy from month to month.

The trial judge found that the acknowledgment of the lease complied substantially with the statute governing the execution of written instruments, and that plaintiffs were bound to the lease as long as rental payments were made in accordance with the terms thereof, which counsel for defendants claim created a perpetual lease.

In the case of Hallock v. Kintzler, 142 Oh St, 287, the supreme court said:—

“Perpetual leases are not favored by the law and an intention to create such a perpetuity must be clearly shown. “A lease will not be construed to create a right to perpetual renewal unless the language employed clearly indicates that it was the intention of the parties so to do.”

The language employed by the parties in the lease indicates clearly and unambiguously that it was the intention of the parties to create a perpetual lease so long as the terms thereof were complied with, and the trial judge found so correctly.

As suggested the parties submitted the matter to the trial judge by stipulation and amended stipulation, and in our opinion the trial judge rightly limited himself to the stipulated facts, and did not err to plaintiffs’ prejudice as claimed in plaintiffs’ assignment of error with reference thereto.

Finding no error prejudicial to the plaintiffs in any respects charged in their assignments of error the judgment of the court of common pleas is affiftned.

NICHOLS, J, GRIFFITH, J, concur in judgment.


author: By GESSAMAN, J.

text:
    GUTCHES v. CITY OF COLUMBUS.
    Common Pleas Court, Franklin County.
    No. 183059.
    Decided September 21, 1951.
    John R. Schickler, Columbus, for plaintiff.
    Richard W. Gordon, City Atty., Hugh K. Martin, J. Raymond Snowden and J. Russell Leach, Asst. City Attys., Columbus, for defendants.
   OPINION

By GESSAMAN, J.

The amended petition herein seeks a declaratory judgment from this court. The plaintiff alleges that he is president of the Sacred Heart Boosters’ Club, an unincorporated association which raises funds for charitable purposes only, and that in furtherance of said enterprise he conducts a game commonly known as bingo.

He further alleges that the defendant has publicly announced that it will cause the arrest of the plaintiff if he participates in said game. Then follows this allegation:

“The plaintiff requests this honorable court to render a declaratory judgment respecting the correct interpretation of said §13084 GC, determining whether such game of ‘Bingo’ may be operated and participated in under and by virtue of said §13064 GC where all benefits if any, derived from said operation are used solely and only for charitable purposes, to the end that plaintiff will be informed as to the true and correct interpretation of said action as to its legality or illegality.”

The prayer of the petition reads in part as follows:

“Wherefore, plaintiff prays that this honorable court render a declaratory judgment as to the legality or illegality of said §13064 GC, where the gross profits from the entertainment known as ‘Bingo’ are used solely and only for charitable purposes * * *”

To this amended petition the defendant has demurred on the ground that it does not state facts which show a cause of action for a declaratory judgment. Seven grounds are urged in support of the demurrer. The fourth ground as stated by counsel for defendant in their brief is as follows:

“Plaintiff asks the Court for a declaration on a moot and academic problem.”

We shall direct our attention to this claim.

Sec. 12102-6 GC provides as follows:

“The court may refuse to render or enter a declaratory judgment or decree where such judgment or decree, if rendered or entered, would not terminate the uncertainty or controversy giving rise to the proceeding.”

As pointed out by counsel for defendant, §13064 GC is not the only section of the General Code of Ohio which deals with gambling. Furthermore, as has been pointed out, there is also an ordinance of the City of Columbus which deals with the same subject. It therefore appears to the court that to make a declaration in this case as to “the correct interpretation of said §13064 GC,” “would not terminate the uncertainty or controversy giving rise to the proceeding,” if any.

The plaintiff does not allege that he has been threatened with arrest by virtue of the provisions of §13064 GC. He alleges only that he has been threatened with arrest. It is obvious that this court has no way of knowing under what section of the General Code the arrest, if any, is contemplated, or whether he might be arrested and prosecuted under and by virtue of a City Ordinance.

In view of the fact that there are other statutes and an ordinance dealing with the subject of gambling, it seems quite obvious that no useful purpose would be served and no uncertainty or controversy would be settled by making a declaration as to §Í3064 GC as prayed for by the plaintiff in his amended petition.

Without discussing the other grounds of the demurrer, it is the opinion of the court that the demurrer should be and is sustained for the reasons above given.


author: By THE COURT.

text:
    STATE, Plaintiff-Appellee, v. OLIVER, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 4629.
    Decided September 18, 1951.
    Glenn E. Kemp, Asst. City Atty., Phillip R. Bradley, Columbus, for plaintiff-appellee.
    Raglan R. Reid, Columbus, for defendant-appellant.
   OPINION

By THE COURT.

This is an appeal on questions of law from a conviction of the defendant-appellant upon trial had in the Municipal Court, Criminal Division, of the City of Columbus, Ohio, upon the alleged violation of a regulation of the Board of Health of the City of Columbus.

Two errors are assigned:

(1) The charge as set forth in the affidavit does not come within the purview of §4414 GC, under which the defendant was tried.

(2) The verdict is contrary to the evidence and the law.

The affidavit is as follows:

“that one Coyle Oliver * * * then and there being the owner of a certain dog, did unlawfully violate a regulation of the Board of Health of the City of Columbus, Ohio, dated February 23, 1951, providing that all dogs in the City of Columbus shall be confined to the premise of the owner or in a suitable pound or kennel, or under leash or control of the owner, or other responsible persons, to wit: by leaving said dog in a parked automobile in front of 9 East Long Street, in said City, with the windows of said automobile open on the street side, and by not being within sight or calling distance or being in control of said dog, in violation of §4414 GC.”

It is conceded that there was a proper quarantine order against dogs such as is set out in the affidavit. The affidavit conforms to the conditions of §4414 GC in that it sets up a regulation of the Board of Health and charges its violation but it is asserted that the quarantine regulation was not made in pursuance of the authority set out in Chapter 11, Subdivision 2, Title 12, Part First, Municipal Corporations which includes §4404 to §4476 GC, inclusive. It is urged that the action of the Board could not have been taken under that section of the Code to which we have referred because it has no reference to the quarantining of dogs. It is true that no specific mention is made of the subject matter under discussion although it would seem clear that the general authority of §4413 GC would be sufficient to support the promulgation of the quarantine order.

The section, in part, provides:

“The board of health of a city may make such orders and regulations as it deems necessary for its own government, for the public health, the prevention or restriction of disease, and the prevention, abatement or suppression of nuisances.” (Emphasis ours.)

But by §5652-16 GC, specific authority is granted to the Board and a mandatory obligation devolved upon it to declare the quarantine regulation under consideration and a reading of it is convincing that it was promulgated upon the authority of the foregoing section and not by §4413 GC. Sec. 4413 GC is found in a different chapter of the Code than §5652-16 GC and the regulation was not, as provided in §4414 GC, “made in pursuance thereof,” i. e., the chapter in which §4414 GC is found. But the penalty provided for a violation of a regulation promulgated by authority of §5652-16 GC is, by reference, defined in §4414 GC. To this extent only has §4414 GC application to the charge set out in the affidavit.

We conclude that the affidavit is not exact in charging that the act therein set forth was in violation of §4414 GC. However, the affidavit did put the defendant upon notice that he was charged with the violation of the stated quarantine regulation of the Board of Health the punishment for which was found in §4414 GC.

We are of the opinion that the defendant was not prejudiced in any substantial right by the form of the affidavit; that it charged an offense and that the inaccuracy in the language employed did not require a dismissal of the charge and does not warrant a reversal of the judgment.

The second error assigned raises the question of the sufficiency of the proof adduced to establish the charge in the affidavit.

It develops that the defendant left his dog, a large one, a cross between a Shepherd and a Great Dane, in defendant’s automobile which was parked in front of 9 East Long Street, Columbus; that the car was locked and all windows except the left rear, to the street side of Long Street, were closed; this one window was open enough to permit the dog to get his head out through it; that a policeman attending to traffic duties came up to the car and so close to it that the dog bit him and tore a sleeve from his shirt.

Defendant claims first, that the car was the “premises” of the owner and that the dog was confined to the premises. There is no merit in this contention. Second, that the dog was under the control of its owner.

The defendant in permitting his dog to remain in his parked car was required to take notice of the right of policemen to patrol the streets in the performance of their duties and that such performance might properly bring them in close proximity to the car. The trial judge had the right upon the evidence to find, as he did find, that the defendant in leaving his dog in the automobile with an opening large enough for the dog to get his head through it far enough to bite a policeman who was properly alongside the auto, did not confine his dog so as to constitute a defense to the charge set out in the affidavit.

The judgment will be affirmed.

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


text:
    DROBNE, Plaintiff-Appellee, v. AETNA CASUALTY AND SURETY COMPANY, Defendant-Appellant.
    Ohio Appeals, Seventh District, Belmont County.
    No. 857.
    Decided December 7, 1950.
    Matz & Cinque, Bellaire, for plaintiff-appellee.
    Kinder & Kinder, Martins Ferry, for defendant-appellant.
   OPINION

By PHILLIPS, PJ.

In this opinion the parties will be called plaintiff and defendant.

Defendant, a corporation, executed and delivered to plaintiff a policy of insurance on his automobile dated May 2, 1947, in which it promised:—

“To pay to or for each person who sustains bodily injury, caused by accident, while in or upon, entering or alighting from (1) the automobile classified as ‘pleasure and business’ if the injury arises out of the use thereof by or with the permission of the named Insured or (2) any other private passenger automobile with respect to the use of which insurance is afforded under Insuring Agreement V of this policy, if the injury arises out of the use thereof and results from (a) the operation of said automobile by the named insured or spouse or by a private chauffeur or domestic servant or either of (b) the occupancy of said automobile by the named Insured or spouse, the reasonable expense of necessary medical, surgical, ambulance, hospital and professional nursing services and, in the event of death resulting from such injury, the reasonable funeral expense, all incurred within one year from the date of accident. The insurance afforded with respect to such other valid and collectible medical payments insurance applicable thereto.”

Plaintiff’s wife was injured on May 23,1947, while a passenger in that automobile.

Plaintiff sued defendant in the court of common pleas to recover $932.45 for hospital, medical and surgical expenses incurred by him within one year from the date of the receipt and as the result of such injuries.

The evidence discloses that $197.45 of such expenses were not incurred within one year from the date of the receipt of such injuries, and accordingly the trial judge withdrew that amount from the consideration of the jury.

Defendant admitted owing plaintiff $135.00, the amount it claimed was incurred during the one year period from the date of such accident, but claimed that $600.00 of such expenses was not incurred until after May 25, 1948.

The jury returned a verdict for the plaintiff for $735.00, upon which the trial judge subsequently duly entered judgment. It is from that judgment defendant appealed to this court on questions of law.

In its assignments of error defendant contends the trial judge “erred in charging the jury; in not ordering a remittitur; in overruling the motion of defendant-appellant for a new trial”; and contends such “judgment is excessive; not in conformity with the evidence”; that “the verdict of the jury and judgment of the court are manifestly against the weight of the evidence and are contrary to law”; and claims “other error of law occurring at the trial and objected and excepted to by this defendant-appellant.”

Plaintiff’s evidence discloses that he made a partial payment on such sum of $600.00 to Dr. Weiler on May 18, 1948 and that the balance was paid to him within a few days thereafter. While admitting that $5.00 was paid on that date, defendant contends that the amount plaintiff and Dr. Weiler claims was paid on that date is not correct. Thus a question was presented for the determination of the jury. As the result of reviewing the bill of exceptions submitted to us carefully we cannot disturb such verdict on the ground that'it is excessive.

In his general charge to the jury the trial judge left the time of payment of such $600.00 item of expense to the jury and instructed them with reference thereto as follows:—

“The court says to you, however, that if plaintiff did engage Dr. Weiler to perform or have performed certain necessary medical or surgical services upon his wife, which services were necessary due to said wife’s injuries, for which liability is imposed against the defendant, and a contract was entered into by and between plaintiff and Dr. Weiler before the expiration of one year from the twenty-third day of May, 1947; and that, under the terms and conditions of said contract, plaintiff was legally bound to pay and did pay Dr. Weiler the sum of $600.00, or whatever amount you may find he did pay, if any, before the expiration of the one year period, and that Dr. Weiler afterwards complied with said contract upon his part to be performed then it can be said, as a matter of law, that plaintiff incurred such liability within the period of one year. However, if you find that the payment, if any, was made after the expiration of one year from May 23, 1947, such part as was paid after the expiration of said one year period would not be comprehended within the term ‘expenses incurred within the year’ as used in said policy contract; and therefore, the defendant would not be liable for any such payments made after the expiration of said year.”

Considering the evidence submitted to us in the case we review in our opinion the trial judge did not err in his charge to the jury in the respects urged by defendant.

Appellant’s counsel has failed to call our attention to “othei error of law occurring at the trial and objected and excepted to by this defendant-appellant,” as alleged as a ground of error, nor to comply in respect thereto with the provisions of Rule VII of this court that his brief “shall contain a statement of the questions presented and a succinct statement of so much of the cause, referring to the pages of the record, as is necessary to show how the questions arose, together with a statement of the authorities relied upon.” Accordingly we will not pass upon this assigned ground of error We find no error prejudicial to defendant in any of the other respects chareed by it in its assignment of errors.

The judgment of the court of common pleas is affirmed.

NICHOLS, J, GRIFFITH, J, concur in judgment.