author: Per CURIAM.

text:
    BRICKLEY, Plaintiff-Appellee, v. GENERAL ELECTRIC COMPANY, Defendant-Appellant.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3860.
    Decided October 11, 1956.
    Paul R. Van Such, Youngstown, for plaintiff-appellee.
    Steven E. Chuey, Youngstown, for defendant-appellant.
   OPINION

Per CURIAM.

Defendant, a self insurer under the Workmen’s Compensation Act of Ohio, appealed to this court on questions of law from a judgment of the court of common pleas entered upon a jury verdict for plaintiff in plaintiff’s appeal to that court from the disallowance, upon rehearing, by the Industrial Commission of Ohio of her claim for benefits because of the death of her husband as the result of an injury received allegedly in the course of and arising out of his employment with defendant.

By assignments of error defendant contends:—

“1. The common pleas court erred in failing to grant defendant’s motion for a directed verdict at the close of all the evidence.

“2. The common pleas court erred in failing to grant defendant’s motion for a new trial.”

On February 26, 1952, Grant Brickley, aged 57 years, called decedent, was regularly employed by defendant as a laborer in charge of loading and unloading boxes of bulbs weighing fifty to fifty-five pounds, from a truck onto a scooter and then unloading the scooter and piling the boxes five high on the storeroom floor placing the highest box on the scooter pile on the storeroom floor, and taking each box in order until the bottom box on the scooter was the fifth in the stack of five on the storeroom floor.

About 10:30 o’clock on the morning of February 26, 1952, plaintiff’s decedent picked up one of such boxes from the bottom of a scooter, held it above his head with both hands, lost his balance, and leaned backwards, and placed the box as the fifth box on a pile on the storeroom floor.

An eye witness testified:—

“Q. What if anything unusual did you see happen to Mr. Brickley?

“A. When he throwed that one box up, throwed it up there five high, he kind of over balanced and went back or something, and gave it a pitch like he must have over balanced himself or something, and the box got away from him and he came back with it and he gave it a pitch and when he got done with that and he looked around at me and he was panting.

“Q. Now, you have testified, Mr. Gillespie, that he raised the box over his head?

“A. Yes.

“Q. I will ask you, was the box in back of his head or in front or on top of his head?

“A. Well, it kind of went back at first.

“Q. Back of his head?

“A. Instead of leaving it drop or anything, he gave it a throw to get it up there, because everybody picks them boxes up a different way. There ain’t one man that would pick them up the same way and put them up.

“Q. Did you notice at the time that he had it over and above his hands and over his head in back of his head, whether or not he was upright or waivering or losing his balance or what?

“A. He was kind of upright and then kind of lost his balance with the box, kind of throwed him back, which is easily done.

“Q. Then you say he was in that position and he threw it?

“A. Yes.

“Q. How did he throw it?

“A. Just went like this (indicating).

“Q. Forced it out?

“A. Kind of forced it and pitched it.”

After completing such work decedent was breathing with difficulty and held his right hand in the region of his left shoulder, shook his head, rested several minutes, and then continued doing the same kind of work for forty-five minutes to an hour. Later in the day after being assigned to other duties decedent was pale.

Still later that day defendant’s physician, who ■ examined decedent at defendant’s dispensary, diagnosed his condition as angina pectoris.

Upon his arrival at his home plaintiff noted his paleness and shortness of breath.

Later on the same day decedent’s physician who had been his physician for ten years but had not treated him for two years prior thereto, found that he was suffering from a condition which he had diagnosed previously as' bronchial asthma, pulmonary emphysema, generalized arteriosclerosis, and arteriosclerotic heart disease, and presumptively diagnosed his present condition as coronary sclerosis and angina pectoris.

Plaintiff’s physician witness testified:—

“Q. Now, Doctor, what is your opinion?

“A. That there is an aggravation of his previous condition by this sudden exertion.”

Dr. Maher testifying for plaintiff stated:—

“Q. Now, I’ll ask you whether he will — I don’t know whether you completed the answer to what causal relationship between the events that transpired and the death?

“A. I do feel there is a direct causal relationship between the events that transpired and his subsequent death.

“Q. What are the reasons for your opinion, Doctor?

“A. The reasons for my opinion are as follows: here is an individual who had arteriosclerotic heart disease. He was known to have had bronchial asthma over a long period of time which had eventuated in pulmonary emphysema. He had generalized arteriosclerosis and, also, coronary-sclerosis. He was able to carry on his job in a satisfactory manner, as given me in the record, and, on this day, there was a strain or an exertion due to his losing his balance and having to pitch this bulky carton upon to the pile. He was noticed to have stopped his regular work. It was said that he panted; that he felt of his precardial area; that he looked pale and, that he was sent to the dispensary later that day where he was adjudged to have had an attack of angina. He was sent on to see Doctor Wagner who felt that he had had an angina attack and he was sent on home and he died the next day in a space of fifteen minutes. My opinion on the matter is; that at the time of this episode of losing his balance, when he had to put forth this extra effort at that time, he probably initiated the thrombus which, subsequently, let go occluding the vessel and causing the infarction on his death.”

Doctor Mahar in answer to a hypothetical question stated there was a direct causal relationship between the injury sustained by the decedent on February 26, 1952, the events that transpired and his subsequent demise. Dr. Wagner in support of his answer to the hypothetical question stated that there is an aggravation of his previous heart disease by overexertion which increased the symptoms of the disease; and Dr. Mahar in support of his answer to the hypothetical question stated that when decedent lost his balance and put extra effort of pitching this bulky carton to the pile, he probably initiated this thrombis which let go, occluding the vessel and causing his death.

About 9:00 P. M. on February 27, 1952, decedent suffered shock and went into a coma and died enroute to a hospital.

His physician certified his death was due to “coronary occlusion, fifteen minutes,” with antecedent cause due to “coronary sclerosis and generalized arteriosclerosis” of approximately one year’s duration.

The evidence shows the happening of an unusual event which aggravated a previous condition of disability. Therefore the trial judge was not in error in overruling defendant’s motion for judgment in its favor nor in submitting this case to the jury.

The judgment of the court of common pleas is affirmed.

PHILLIPS, PJ, NICHOLS and GRIFFITH, JJ, concur.


source: Caselaw Access Project

author: By SKEEL, PJ.:

license: Public Domain

text:
    BENNETT, Plaintiff-Appellee, v. RADLICK, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24175.
    Decided October 17, 1957.

      Hartshorn, Thomas, Edelman & Fludine, for plaintiff-appellee.
    Paul Mancino & Frank Mancino, for defendant-appellant.
   OPINION

By SKEEL, PJ.:

This appeal comes to this court on questions of law from a judgment entered for the plaintiff on a trial of the issues of fact in the Municipal Court of Cleveland. The action is one in negligence resulting from an automobile collision between the automobiles of the plaintiff and defendant, each then and there driving his own automobile, the collision occurring in the City of Cleveland on October 16, 1956. The defendant lives in and was served by mail in the City of Euclid, Cuyahoga County, Ohio.

The defendant filed a motion to quash service of summons for want of jurisdiction of his person because the attempted service was made outside the limits of the territorial jurisdiction of the Municipal Court of Cleveland. The plaintiff claimed that by reason of §§2703.20 and 4515.01 R. C., the court had the power to acquire jurisdiction by residence service of a defendant living within Cuyahoga County but outside the territorial jurisdiction of the court.

Sec. 2703.20 R. C., has no application under the undisputed facts here presented. That section deals with service of non-resident owners of a motor vehicle who caused injury to a resident of this state while in the use of the highways of Ohio. This defendant is a resident of Cuyahoga County and is, therefore, not a non-resident of the state.

Sec. 4515.01 R. C., likewise is not applicable here. This section provides that an action may be brought in a motor vehicle collision case in the county where the injury occurred and for service of summons by the sheriff in any other county in Ohio. This section does not extend the jurisdiction of a municipal court beyond its territorial limits to include county-wide jurisdiction where the injury caused by the use of a motor vehicle occurred within its territory.

In the case of Yontz, et al, v. McCutchin, 121 Oh St 142, 167 N. E. 363, the court said:

“Jurisdiction is not conferred on the municipal court of the city of Columbus by §6308 GC, in an action for damages for injury due to the negligent operation of a motor vehicle in Franklin County, Ohio, where defendants reside outside of city limits, by the sheriff of Franklin county leaving a summons at the residence of such defendants, all parties to such action being residents of Franklin county.”

Also in the case of Barrett, et al v. Black, 66 Abs 195, 119 N. E. 2d 306, it was held that in an action founded on an injury resulting from the negligent use of a motor vehicle, which injury occurred in Cleveland, the Municipal Court of Cleveland could not, under the authority of §4515.01 R. C. (§6308 GC), subject the defendant to the jurisdiction of such court where such defendant was served within Cuyahoga County outside the limits of the City of Cleveland even though such service was accomplished by the sheriff of Cuyahoga County.

This leaves but the single question of whether or not the defendant, after his motion to quash service had been overruled, and leave given to plead, subjected himself to the jurisdiction of the court by seeking affirmative relief in his answer, which was thereafter filed, based on the same transaction upon which the plaintiff’s claim was founded.

The law of Ohio now clearly recognizes the right of one who has challenged the jurisdiction of the court over his person by a motion to quash service of summons on the ground that service has not been lawfully made or made beyond the territorial jurisdiction of the court, and where such motion to quash has been overruled, to defend on the merits without waiving his right, after judgment against him, to seek a review on appeal of the question of the court’s jurisdiction over his person where such objection to the jurisdiction of the court is pleaded in the answer.

In the case of State, ex rel. Rhodes, Aud., et al v. Solether, Judge, 162 Oh St 559, 124 N. E. 2d 411, the second paragraph of the syllabus provides:

“2. A defendant in an action, who at the first opportunity appears only for the purpose of objecting to the jurisdiction of the court either as to subject matter or person, is not, upon the overruling of such objection, bound to rely solely upon his exception thereto but may make full defense in the action without waiving his objection as to jurisdiction, either in the trial court, the Court of Appeals, or the Supreme Court.”

In the case of Gibson v. Summers Const. Co., 163 Oh St 220, 228, 126 N. E. 2d 326, 330, in distinguishing the case of State v. Fremont Lodge of Loyal Order of Moose, 151 Oh St 19, 84 N. E. 2d 498, the court said:

“It will be noted, however, that in that case the defendant pleaded to the merits of the case simultaneously with his motion to quash. This result does not obtain where the defendant, in the first instance, enters his appearance solely for the purpose of attacking the jurisdiction of the court over his person. If the motion is overruled, he may then plead to the merits and continue to protest to the court’s jurisdiction. Glass v. McCullough Transfer Co., 159 Oh St 505, 112 N. E. 2d 823.”

There is no question but that the defendant’s answer, after objecting to the jurisdiction of the court, not only denies negligence on his part in the collision between the parties, which is the basis of plaintiff’s claim but also prays to recover his damage resulting from the same collision, alleging that it was caused by plaintiff’s negligence. The defendant’s pleading was designated “Answer and Cross-Petition.”

There is much authority going to the point that a party who seeks affirmative relief after unsuccessfully objecting to the court’s jurisdiction over his person (even though such objection is continued when pleading to the merits), thereby voluntarily enters his appearance in the case. The cases cited by the plaintiff — Merchant’s Heat and Light Co. v. Clow & Sons, 204 U. S. 286, and Chandler v. Citizens National Bank, 149 Ind. 601, 49 N. E. 579, with many others, are certainly to this effect.

In considering this question, little, if any, attention has been given to the rights of the defendant, rights that will be lost where he is compelled to defend himself without the right to seek affirmative relief growing out of the identical facts in a court which he claims to be without jurisdiction of his person and in which, if the plaintiff should prevail, the defendant’s right thereafter to seek redress for his injuries growing out of the same incident, will be forever barred. If the foregoing authorities are correct, then a defendant, by seeking to prosecute a counterclaim based on the same facts alleged in plaintiff’s petition, would be barred from challenging the jurisdiction of a court which, in fact, if such question of jurisdiction were tried might, as is true in this case, be found to be without legal authority over his person.

The confusion is unquestionably, due to the failure to properly define the rights of a defendant after he has been summoned to court on the facts alleged in the plaintiff’s petition. Through the years the defendant’s right to seek affirmative relief has come to be recognized under three theories, set-off, recoupment and counterclaim.

In Williston on Sales, published in 1909, paragraph 605, at page 1003, the author, in defining recoupment, said:

“The right of recoupment has been much confused in our law with the rights of set-off and counterclaim, and the words are frequently used indiscriminately, but a distinction should be observed. Set-off is a statutory right and was first allowed in the reign of Queene Anne. The right was confined to cases where both the claim of the plaintiff and the cross claim of the defendant were liquidated debts. So narrow a right was frequently of little avail and modern statutes of counterclaim have much extended the right. The statutes are not identical, but allow in general a defendant to litigate in an action brought against him a cognate claim of his own, whether for a liquidated sum or not. Had these broad statutes been passed earlier there would probably have been little occasion for the development of the doctrine of recoupment, for a defendant by means of counterclaim, in most cases, can get the same redress and more than he can by means of recoupment. This, however, is not true in every case. The theory of recoupment is that the plaintiff’s damages are cut down to an amount which will compensate him for the value of what he has given. * * *”

In an article published in two parts by Professor Robert B. Lowry in the University of Cincinnati Law Review (Part I is in Vol. 19 at page 311 and Part II is in Vol. 20 at page 1), the history of the right of a defendant to seek affirmative relief against the plaintiff or other defendant is considered at length. It is correctly stated in these articles that the purpose of allowing such counter action is to avoid a multiplicity of suits, and the statutes authorizing such procedure have attempted to permit the parties to settle in one action as many controversies as is feasible.

Sec. 2309.13 R. C. (formerly §11314 GC), defining what shall be contained in an answer, including the right by answer to seek affirmative relief, provides:

“The answer shall contain:

(A) A general or specific denial of each material allegation of the petition controverted by the defendant;

(B) A statement in ordinary and concise language of new matter constituting a defense or counterclaim;

(C) When a defendant seeks affirmative relief therein, a demand for such relief.” (Emphasis added.)

Certainly the provisions of this section do not contemplate invoking the jurisdiction of the court anew by the defendant in seeking affirmative relief. Service of summons on the cross-petition is not necessary, the case proceeding as it was originally filed with the added burden of determining the issues of fact presented by the cross-petition.

Sec. 2309.16 R. C., effective and as amended September 27, 1947 (formerly §11317 GC), provides:

“A counterclaim is a cause of action existing in favor of one or more defendants against one or more plaintiffs or one or more defendants, or both, between whom a several judgment might be had in the action, and arising out of the contract or transaction set forth in the petition as the foundation of the plaintiff’s claim, or connected with the subject of the action or arising out of contract or ascertained by the decision of a court. Such counterclaim shall not be limited to the amount claimed by the plaintiff, or defendant, against whom such counterclaim is asserted.”

All distinctions between set-off, recoupment and counterclaim are put at rest and the term “set-off” has now been eliminated from our statutes. The statute defines the circumstances under which controversies between the parties may be presented for trial in the same action other than the case pleaded by the plaintiff. It should be noted that the statute provides that claims of the defendant growing out of the transaction set forth in the petition may form the basis for a counterclaim. Such a claim is, under the circumstances, not one that invokes the jurisdiction of the court anew but is a permissible cause of action permitted by the statute. The controversy is already before the court and the only added duty imposed by the cross-petition is to try the claim of the defendant that the negligence of the plaintiff was the proximate cause of the collision whereby the defendant was damaged.

It would be illogical to contend that a totally new case is brought into the action by the defendant’s cross-petition. The evidence that will be introduced to support the cross-petition, except as might be presented to establish defendant’s damage, in all reasonable probability, will be the same as that presented for defense purposes. The defendant has the right in absolving himself from plaintiff’s claim of negligence to show affirmatively that the plaintiff’s own negligence was the sole proximate cause oí the damage for which he prays judgment. Evidence admissible for one purpose may be considered relevant for all issues in the case.

In the case of Hanna v. Stoll, 112 Oh St 344, 147 N. E. 339, the court said in the first paragraph of the syllabus:

“1. In the trial of an action for damages resulting from the collision of motor vehicles at a city street intersection, the petition having averred that negligence of the defendant in the operation of his motor bus caused the collision and resulting injuries, and the defendant by answer having denied negligence upon his part and asserted that plaintiff’s injury resulted solely from his own negligence, the rejection of duly enacted and existing ordinances of the city, constituting its traffic regulations, tendered by the defendant, which there was evidence tending to show defendant observed and plaintiff disregarded, is error, though such ordinances were not pleaded by the defendant.”

Also, the Supreme Court in the case of Taylor v. Cincinnati, 143 Oh St 426, 55 N. E., 2d, 724, said in the first paragraph of the syllabus:

“1. A claim by a defendant that plaintiff’s injuries were proximately caused solely by the negligent acts of a third person is but another form of a general denial. Such claim does not create a separate issue and does not furnish any basis for the application of the two-issue rule as defined in the case of Sites v. Haverstick, 23 Oh St 626.”

Certainly if evidence admissible to make out an affirmative defense does not require the invoking of the jurisdiction of the court anew as the basis of its admissibility, the same evidence introduced to support a counterclaim should not be held to have this effect.

To hold that a plaintiff, who brings an action involving an automobile collision where the defendant, after service of summons, claims the right to seek affirmative relief on the facts pleaded, can invoke the jurisdiction of a court of his own choosing, which the defendant cannot challenge if he files a cross-petition as provided by statute, is to deny him due process or the ordinary protection of the law. If the claims of both parties are based on the same occurrence, a judgment for the plaintiff would estop the defendant from ever again presenting his claim whether he filed his cross-petition or not. The purposes of the statutes above quoted are to broaden the scope of claims that may be tried in a single action and not to compel a party to choose between the right to a review in challenging the jurisdiction of a court he believes to be acting illegally in claiming jurisdiction over his person and the right to seek affirmative relief based on the facts pleaded by the plaintiff after the trial court has overruled his objection to its jurisdiction. The affirmative relief asked by the defendant, under the facts in this case, and the statute under which he seeks judicial determination of his rights, does not invoke the jurisdiction of the court anew, separate and apart from the jurisdiction the court claims over him by the summons which brought him before the court.

This view is strengthened by §2323.40 R. C., which provides:

“When not otherwise provided by statute, costs shall be allowed, as a matter of course, to the plaintiff upon a judgment in his favor in actions for the recovery of money only or of specific real or personal property. If a defendant omits to set up a counterclaim he cannot recover costs against the plaintiff in any subsequent action thereon.

“This section does not apply to a counterclaim which was stricken out of or withdrawn from the answer as provided by law.”

Can it be that a defendant may be penalized for not filing a counterclaim and at the same time hold that if he does, he must waive a valuable right, one even as serious as want of jurisdiction of the court over his person? We cannot support such a holding.

For the foregoing reasons, the judgment of the trial court is reversed and final judgment for the defendant for the reason that the trial court did not have jurisdiction over the person of the defendant.

Exceptions noted.

HURD and KOVACHY, JJ, concur.


author: By HORNBECK, J.

text:
    DEIBEL et, Plaintiffs-Appellants, v. WILSON et, Defendants-Appellees.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5792.
    Decided December 13, 1957.

      Allen I. Fretzman, J. Raymond Snowden, Columbus, for plaintiffs-appellants.
    Hale, Kincaid & Palmer, Samuel B. Randall, of Counsel, Columbus, for defendants-appellees.
    (HORNBECK, J, of the Second District; DEEDS and FESS, JJ, of the Sixth District, sitting by designation in the Tenth District.)
   OPINION

By HORNBECK, J.

This is an appeal on questions of law and fact from a judgment of the Common Pleas Court denying an injunction to plaintiffs and dismissing their petition.

Plaintiffs are owners of dwellings in Rosemary Addition to the City of Columbus. Defendant, a physician in the general practice of medicine, since 1946 has been the owner of Lot No. 77 and one half of Lot No. 78 in Rosemary Addition, also known as 26-28 West Henderson Road.

The deed through which defendant acquired his lots carried, by reference, a restriction that his lots “shall be used for (1) residence purposes only and (2) not for any purpose of business or trade.” (Numbering ours.) The plaintiffs acquired their lots with like restriction.

By Ordinance No. 1206-54 of the City of Columbus, Rosemary Addition was zoned and plaintiffs’ and defendant’s lots- were classified as a residential district.

Defendant desired to build a residence in which provision would be made for his office and engaged an architect to prepare plans for the structure. After the plans and specifications had been completed and when the defendant was ready to proceed with the erection of his proposed building, although he had been informed that re-zoning would not be required, upon learning that some of the residents of the addition were objecting to the erection of the building, he made application to the Planning Commission, supported by a petition of property owners, for a change in the zoning of his lots from R-3, Single Family Residential, to C-2 Commercial. This petition was heard and refused because of the residential character of the neighborhood.

Defendant applied to the Division of Building Regulations, Department of Public Safety, for a building permit, which was refused.

We have no formal order setting forth the refusal of the permit: but Mr. John Lorain, a building inspector, testified that the reasons for the refusal were that the plans “were not of an entirely residential character” and that “They show that it [the building! will be used * * * for the treatment of patients there, and show workrooms and laboratory, and so forth.” He was asked what position the department took in regard to a house that was already there and used for residential purposes and converted to a doctor’s office, as compared to one where the doctor’s office is a part of the original construction. He answered, “Well, in * * * an existing residence, we will go along * * * with a doctor or professional man having his offices in a building, as long as there is no — I mean nothing there to show us that it will become a public nuisance.” He said also that the application was rejected because there was “no existing residence on the lots” and the office could not be accessory to the residence.

.The defendant was advised by the Planning Commission to take his problem to the Board of Zoning Adjustment, which he did. This Board has jurisdiction, under Section 47.25, Zoning Ordinance, “to hear and decide appeals from and review any order, * * * decision, or determination made by the building inspector in the administration of this ordinance” and “shall make such order ■* * * as in its opinion ought to be made in the premises, and to that end- shall have the powers of the office from whom the appeal was taken.”

After an open hearing on the referral, at which were present the defendant and certain of the plaintiffs, the Board reversed the order of the building inspector and ordered the permit to be issued.

Upon these facts, other provisions of the zoning ordinance, and the evidence developed in this suit, the plaintiffs base their action and prayer for a permanent injunction enjoining the defendant “from proceeding with the construction of said medical and residence building or that part thereof which is to be used for medical practice and trade,

The first cause of action in plaintiffs’ petition avers a violation of the building restriction in the deed to defendant.

The second cause of action avers violations of the zoning ordinance. We speak of the zoning ordinance in the singular form although there are two ordinances offered as exhibits but, insofar as this case is concerned, they do not differ.

Upon trial had in Common Pleas Court, a temporary or permanent injunction was denied. Thereafter, when the appeal was perfected, a temporary restraining order was granted. In the interim between the granting of the permit to build and the issuance of the injunction, defendant proceeded with his building until it had reached completion of the frame work, the roofing, and some of the siding.

We now consider the first cause of action and hold that the proof will not justify the relief prayed for, for three reasons:

Uj The restriction applies to the use of the lot for the prohibited purposes. The restriction was to run for thirty-five years and will expire on May 18, 1858. The only use which conceivably could offend the covenant is a use of a part of the structure for a medical office. That use cannot be for more than a few months, at most, and probably will not begin before the restriction has terminated. There will be, at the effective date of any injunction that might be granted by reason of this proceeding, very little, if any, value to the dominant lots in the restrictive covenant. Brown v. Huber et al, 80 Oh St 183, 206, 207. This is true, not because of change in the character of buildings in the district, but because at the most there could be but a very short period left in the duration of the restriction.

(2) If no part of the structure could be used for such office purpose during the life of the restriction, that should not prevent the completion of the building and its use for residential purposes only.

(3) The use proposed is not, in our judgment, for “business” or “trade.” We will discuss this phase of the restriction when we come to consider the zoning ordinance.

We next consider the second cause of action of the petition.

The sections of the zoning ordinance here involved, which, it is claimed, have application to the facts developed, are:

“Section 47.02.3. * * * Within an R-3 area district no buildings * 4 * shall be used and no buildings shall be erected which are arranged, intended or designed to be used for other than one or more of the following specified uses:

“A. Dwelling: Single Family Residence together with such other buildings as are * J' * appurtenant thereto. 4- * *, and shall have provision on the lot of at least one off-street parking space per dwelling

“Section 47.04 [of Ordinance No. 966.54] Accessory Uses in.Residential Districts. Residential Character. An accessory use customarily incident to a use permitted in a residential district, * * * shall be permitted in such districts respectively, subject to the limitations stated herein, and shall not be such as to infringe upon the residential character of the district.”

Section 47.04, Paragraph 2: “The office of an architect, attorney, clergyman, dentist, engineer, physician, surgeon or other professional person may be located in a residence or an apartment used by such person as his private residence. These office uses do not include the services of more than three (3) other ■ persons not residing on the premises, work rooms, clinics, or the treatment or housing of animals.”

“4. No structure shall be erected which shall be designed or constructed with any special structural appearance for use as a business, trade or industry, or other use conducted for gain. Said accessory buildings, shall not occupy more than 40% of the area of the required rear yard and in the case of a corner lot shall be located back of any required set back of a specific building line.”

Plaintiff claims that the Board of Zoning Adjustment, hereinafter frequently referred to as the Board is. but a fact-finding body before which the defendant had the burden of going forward and proving his right to the issuance of the permit and that it failed to give effect to the sections of the ordinance which we have quoted; that it did not consider the plans for the building nor interrogate the witnesses respecting the construction and use of multiple workrooms in connection with defendant’s medical practice; that the Board acted illegally, without authority, arbitrarily and unreasonably in reaching its decision to grant the permit to defendant to build as he proposed.

The parties are in agreement that the test which we shall apply to the ruling of the Board is whether it abused its discretion in making the order granting the permit.

We are in agreement with the contention of plaintiff that the burden before the Board was upon the defendant; but the Board, as an administrative body, had the right to shape its proceedings with the obligation of securing the necessary facts upon which it could act intelligently on the question before it for determination.

The evidence before the Board, and here, is that the defendant, a physician, and his wife propose to reside in the building to be erected; that he will engage in the general practice of medicine and will have but one employee; that the equipment in the rooms to be used as an office is that ordinarily employed by a practicing physician; that there will be no bed in the office; that he anticipates that he will attend twenty or thirty patients per day, not more than two or three of whom, ordinarily, will be in his office at the same time.

The proposed building is planned for a combination residence and office structure to cost, when completed, $75,000. The type of construction is wood studding and brick veneering. The first story is to be fronted with Wyandotte brick with “combination board and batten above on the second floor portion of the residential.” The architect says, “All in all, the general character of design of appearance of this building would be such as it would fit well into any high-class area even such as Arlington and the upper portion of Arlington.”

The rooms to be used in the office of defendant are:

Consultation Room — 11 ft. 6 in. x 17 ft.

Room No. 10 — 4 ft. x 5 ft. with storage closet 21 x 36 in.

Corridor — 4 ft. wide x 24 ft. long.

Room No. 9 (Treatment Room) — 5 ft. 3 in. x 9 ft.

Room No. 8 (Laboratory) — 4 ft. x 7 ft.

Toilet 4 ft. x 7 ft.

Room No. 6 (Dressing Room) — 11 ft. 6 in. x 7 ft.

Room No. 5 (houses air-conditioning unit and heating plant exclusively for medical part of building)— 7 ft. x 8 ft.

Room No. 4 (Recovery Room) — 7 ft. x 11 ft.

Rooms Nos. 2 and 3 (Diet and Weight Control Room) — 15 ft. 6 in. x 7 ft. (now one room, but subject to division into two rooms, if required.)

Additional Hallway — 4 ft. x 15 ft. 8 in.

Room No. 1 (Library and Record Storage Room) — 7 ft. x 11 ft.

Room No. 12 (Storage Room) — 6 ft. 6 in. x 8 ft.

Room No. 11 (Drug Room) — 4 ft. x 6 ft.

Waiting Room (not numbered) — 16 ft. x 18 ft.

All of these office rooms are on the first floor and are of an area of 1,667 square feet. Also on the first floor are four living rooms with closets occupying 1,547 square feet. There is a basement, 7 rooms, 1,497 square feet, a part of the residential unit. The second floor, 4 rooms with closets, is entirely residential. In all, 70% of the area in the structure will be devoted to residential uses and 30% to office.

Plaintiffs discuss accessory uses from the ordinance Section 47.25.Í5:

“Permit in any district any use or building deemed by said board to be in general keeping with and appropriate to the uses or buildings authorized in such district, * * *.”

and claim, as before stated, that the Board is a fact-finding body and did not have sufficient facts before it to support the order which was made. Several cases are cited, one only from Ohio, The L & M. Investment Co. v. Cutler et al, 125 Oh St 12. This was a hardship case in which the court held that:

“The board, upon finding that such difficulties or hardships would ensue in applying the strict letter of the ordinance provisions, may vary the application in accordance with the provisions of such sub-section and may especially do so if it finds and assigns specific and adequate reasons therefor.”

The principal question in this case was the validity of the zoning ordinance under consideration as against the contention that its provisions constituted a delegation of legislative power within the purview of the Constitution. Judge Jones, near the end of the opinion, at Page 23, said:

“We see no distinction in principle between the use of a fact-finding body for determining whether or not ‘unusual hardships’ have resulted in specific cases and the use of a similar administrative agency to ascertain the fact whether a picture film is of a moral, educational, or harmless character. Manifestly, since unusual hardships would affect some and not other owners in a zoning district, the determination whether the restriction imposes unusual hardships upon an individual’s property must be left, in specific instances, to the discretion of administrative agencies, but even so the power conferred upon them cannot be unreasonably or arbitrarily exercised.”

The Board had, upon hearing, permitted a variance from a required thirty-foot setback as it appeared in the ordinance. The Court of Appeals affirmed the action of the Board, and the Supreme Court affirmed the judgment of the Court of Appeals.

Smith v. Volk, 85 Oh Ap 347, with which the writer of this opinion is familiar, has nothing in common with the instant case. There, the owner who was charged with the knowledge that he was restricted to “single houses to be used for residence and dwelling purposes” had an old barn worth $1,000.00 to $3,000.00 on the premises. He spent $12,000.00 in converting the barn into a night club. The principal issue was not as to the effect of the restriction but if it was binding on the defendant.

The restriction in Stewart v. Barber, 43 N. Y. Supp. 2d 560, included “occupation” in addition to “manufacture, business and trade.” Tomko v. Vissers, 121 A. 2d 502, 21 N. J. 226, holds that it is the primary responsibility of applicant for zoning variance to supply competent and credible evidence to apprise Board of Adjustment of the nature and degree of zoning burden sought to be alleviated through the variance procedure. The Supreme Court of New Jersey based its decision on the finding that the granting of the application for the zoning variance was fatally defective “because conclusions reached by the Board were not founded on the evidence.” The variance sought was the right to construct a swimming pool, a business venture, in clear violation of a restrictive section of a zoning ordinance. The record did not show an application for a building permit. The sole presentation of the applicant before the Board was a “lay-out map” and an “artist’s sketch.” Nothing was forthcoming which related to the advisability of granting a variance.

Beirn, et ux. v. Morris et al., 14 N. J. 529, 103 A. 2d 361, developed that land owners, who took their property with full knowledge of the restrictions and with the purpose to violate them by engaging in a business venture on the restricted land, did not establish a ground for variance.

Nutini, et al. v. Zoning Board of Review, etc. 82 A. 2d 883, was a variance case wherein ample facts were found to support the order granting the variance.

The issue heard and decided by the Board in this case was the right of defendant to erect the proposed building within the express authorization of the Zoning Ordinance, without a waiver of any of its provisions or the invoking of the variance or hardship sections thereof. Thus, the cited cases where the right of the applicant to secure a variance from the provisions of an ordinance are helpful only infer - entially. Nor was the showing of adjacent commercial uses of material aid on the question presented. These uses are to be considered here only as they may reflect on the ultimate question of whther the injunction should be granted. It is urged that the Board did not have before it evidence which afforded a basis for its action, and the cases heretofore discussed are cited in support thereof.

The Board of Zoning Adjustment consists of five members, three of whom must be chosen from an architect, building contractor, professional engineer, real estate broker or mortgage banker. Certain members of the Board who testified were lawyers. Obviously, the members were qualified to read and interpret the blueprints of the proposed building which all say were before them. They knew the number and size of the rooms in the office. They had full knowledge of the requirement essential to the issuance of a permit under the ordinance. They had the affidavit of defendant as to the nature and extent of his professional services to be carried on in the building. The opponents to the granting of the permit were given opportunity to be heard.

It is claimed that the defendant’s use of the building will be for the purpose of “business” or “trade.” There is not unanimity in the decisions whether the practice of the learned professions is a business or trade. The question is not so vital as applied to the Zoning Ordinance, because of the permissive accessory uses, as it is to the deed restriction. We believe that the better-reasoned opinions require the conclusion that the occupation of a general medical practitioner practicing alone, with but one employee, is not to be classified as “business” or “trade.”

The cited cases supporting defendant’s contention are Briggs v. Hendricks, 197 S. W. 2d 511, and Iselin v. Flynn, 134 N. Y. Supp. 133. Supporting plaintiffs’ claim are Semple v. Schwarz, 109 S. W. 633, Missouri Court of Appeals, and Osborne, et al. v. Talbet, 78 A. 2d 205, Maryland Court of Appeals. In this latter case, however, the court found that “A Chiropractor is not a ‘physician’ and his profession or calling is not practice of medicine.” The cases of Pocono Spring Water Ice Co. v. American Ice Co., 64 A. 398, and United States v. American Tobacco Co., 164 Fed. 700, cited by defendant, are not in point.

It is confidently urged that little or no inquiry was made at the hearing before the Board of Zoning Adjustment as to the number of rooms in the office or their purpose as it affected the question of whether they came within the meaning of “accessory use” under the ordinance. With this contention we do not agree, upon the record taken at the hearing before the Board and especially because of the information available from the blueprints.

It may be agreed that the members of the Board did not, and do not, put the interpretation on the term “workrooms” which plaintiffs ascribe to it.

If it could be said that the members of the Board did not test the proposed building construction and its use from every viewpoint urged by plaintiffs, all such tests were posed to them as witnesses in this suit, and all were resolved by them in favor of their action granting the permit. It is, therefore, evident if the application again came to the Board for decision, it would hold as it formerly did.

We then must determine if the facts developed before the Board, and here, are such as to require us to say that the Board clearly abused its discretion or that, as a matter of law, the granting of the permit was based on an improper construction of the Zoning Ordinance. We cannot find either issue in favor of the plaintiffs.

We next consider the claim that the building appears to be “designed or constructed with structural appearance for use as business, trade or industry, or other use conducted for gain,” which is prohibited by the ordinance. With one exception, the witnesses are unanimous in holding that the foregoing provision of the ordinance is not violated by the appearance of the proposed structure. Indeed, one witness for the plaintiff says that if the building were to be used as a residence, it would be unobjectionable.

Plaintiffs urge, with much assurance, that the office space and arrangement therein are such that it is not an “accessory use,” as defined in the ordinance. The office of the defendant is to be located in the residence and, but for the exception to the “accessory use,” there would be no limitation as to the size or extent of the use of that office. There are possibly four of the office rooms which may be characterized as rooms in which the defendant would work. By the broad definition of work, “exertion of strength or faculties to accomplish something” (Webster), these four rooms may be characterized as “workrooms.” Work is also defined as toil, labor. It may be that it is so employed in this ordinance.

In The Republic Tool & Manufacturing Co. v. Lenarz, 17 Oh Ap 500, it was held that an executive officer of a corporation was not entitled to a writ of attachment for “work” or “labor” by force of §10253 GC.

Judge Phillips, in 57 Abs 406, Kreider, et al, v. Carson, said that services rendered by a real estate agent for professional services are not included in the definition of work and labor as used in §11819 GC. In a per curiam in Henry v. Mangold, 50 Abs 510, Second Appellate District, at Page 511, it is said:

“The law of Ohio seems to be well established that the claims for services performed by executives of a corporation or by physicians or attorneys are not claims for ‘work,’ but in the case at bar the record discloses that the plaintiff was in the employ of the defendant and that he performed services in his behalf as an artisan in the production of wealth and that his exertions were primarily physical and not mental.”

We do not know what “workrooms,” as employed in the exceptions to “accessory uses” in the ordinance, means; and it is not necessary, nor do we attempt, to fully'define it. But, we are of the opinion that it is not used as a limitation on the number of rooms in which a physician may follow the general practice of medicine. To so construe it would negate the permission of a physician to office in his residence. If a doctor, living in a residence of 15 rooms, would use two of them for his office work, he would, upon the interpretation of the plaintiffs, violate the exceptions in the permitted “accessory use” of the ordinance. On the other hand, if a physician in the general practice would employ all of the space in a large dwelling as one room in which he would perform his services, and reside in one small room, he would observe the ordinance.

' It reasonably appears that the defendant, in the building which he proposes to erect, is preparing to provide only sufficient rooms to meet the demands of a general medical practitioner in a modern office. It is not probable that the ordinance was intended to bar the use of such an office.

The petition also avers that the operations to be conducted in the medical office constitute a “clinic.” Without comment, we hold against this claim.

Upon the proof of special damage to be suffered by plaintiffs by the erection of the proposed building, they fail completely. All of the convincing testimony is to the contrary.

There may be some possible doubt as to the construction the Board has placed upon the permitted accessory use, by subsection 2 of Section 47,04, of Ordinance No. 966-54, as it affects residence structures erected in the district since the enactment of the ordinance. Upon that question, we give weight to the judgment of the Board and are not prepared to say that it exceeded its discretion in construing this phase of the ordinance in favor of the defendant.

We have not discussed many of the cases cited by counsel for the parties, but have read most of them. A number of them treat of factual developments not found here and are not especially helpful on the questions here presented. They disclose that counsel have practically exhausted the list of cases which could in the remotest degree affect the issue.

The Board in this case had discretion, and there is not the slightest suggestion that its action was the result of perversity of will, passion, or moral delinquency. McNeil v. McNeil et al, 46 Abs 244, or that it exercised its discretion to an end or purpose not justified by, and clearly against, reason and evidence. State v. Ferranto, 112 Oh St 667, 148 N. E. 362.

Injunction is an extraordinary remedy not to be granted unless the proof is clear and convincing, “its allowance being a matter of grace rather than of strict right, and determined by the nature of the case, the peculiar facts presented therein, the law governing the same, and by consideration of public policy and convenience.” 21 O. Jur., “Injunctions,” page 1006.

Independent of the narrow and determinative questions which we have considered, there are strong equities in behalf of the defendant. He did not begin construction until after he had consulted with and conformed to the requirement and advice of the administrative agencies which had the right to issue to him a building permit and had secured that permit. There have developed facts which suggest, at least, that the defendant would have a strong case for variance within the terms of the zoning ordinance. East of an alley which abuts defendant’s property on the east are two gasoline stations. His building is to the west of these stations and near to them. Defendant’s lot has remained unimproved for many years. The witnesses are practically in agreement that the proposed structure has the appearance of a residence and will enhance the value of the surrounding properties. The defendant already has invested a substantial sum of money, in the building. Of course, he did so at some risk because of the pendency of this suit for injunction. But the first court which heard the case held that the claim of the plaintiffs was not well made and no order preventing continuance of the building was issued.

We do not find that the Board of Zoning Adjustment in granting the building permit to defendant acted arbitrarily, illegally or abused its discretion. Nor that the facts developed in the record disclose any misconception by the Board of the proper construction of the ordinance involved in any particular challenged by the plaintiff.

The injunction will be denied, petition dismissed, and the temporary injunction heretofore granted will be dissolved.

DEEDS and FESS, JJ, concur.


author: By HURD, J:

text:
    ERIE RAILROAD COMPANY, Plaintiff-Appellant, v. STANDARD OIL COMPANY OF OHIO, Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24318.
    Decided March 13, 1958.
    Burgess, Fullmer, Parker & Weh, for plaintiff-appellant.
    McAfee, Grossman, Taplin, Hanning, Newcomer & Hazlett, for defendant-appellee.
   OPINION

By HURD, J:

This is an appeal on questions of law from an order of the Court of Common Pleas of this County vacating a judgment entered on a jury verdict in favor of the plaintiff and in rendering judgment in favor of the defendant-appellee on the ground that answers of the jury to the special interrogatories are inconsistent with the general verdict.

In February of 1924, the Standard Oil Company and the Erie Railroad Company entered into “a sidetrack agreement” which covered the location and use of one of the sidetracks within the No. 2 plant of the Standard Oil Company. The plaintiff’s action is based on the indemnity provision of the agreement which is set forth in the petition and provides:

“The Shipper also agrees to indemnify and hold harmless the Railroad Company for loss, damage or injury from any act or omission of the Shipper, its employees or agents, to the person or property of either of the parties hereto and their employees and to the person or property of any other person or corporation, while on or upon said sidetrack; and if any claim or liability, other than from fire, shall arise from the joint or concurring negligence of both parties hereto it shall be borne by them equally.”

For purposes of brevity, the parties will hereinafter sometimes be referred to as “the railroad company” and “the shipper” respectively.

On May 17, 1950, while the sidetrack agreement was in full force and effect, an accident occurred on the sidetrack whereby one, Edward W. Lade, Jr., sustained certain injuries for which he brought suit against the railroad company in the United States District Court. The injuries were the result of a collision between a switch engine operated by the railroad employees and a tractor-trailer, operated by the said Edward W. Lade, Jr., one of the employees of the shipper. This accident occurred at the crossing of a private drive on the shipper’s premises at the intersection of the aforesaid sidetrack. The railroad company notified the shipper of the suit filed and demanded that the shipper defend and indemnify it under the terms of the aforesaid sidetrack agreement. This demand was refused. Upon trial of the action, judgment was rendered for said Edward W. Lade, Jr., against the railroad company and was satisfied by the payment of $44,500 by the railroad company. Thereafter, the railroad company filed this action against the shipper to recover the sum of $44,500 paid in satisfaction of the Lade judgment, together with the amount expended by it for attorney’s fees and expenses.

The case was tried on the issues made up by the plaintiff’s amended petition and defendant’s fourth amended answer thereto. Of the six specifications of negligence set forth in the plaintiff’s amended petition, the court submitted to the jury only the following:

“2. Defendant negligently allowed and permitted petroleum products to accumulate in and about the rails of said sidetrack, resulting in an oily and greasy condition of said rails, which prevented plaintiff’s switch engine from being efficiently braked in such a manner as to have avoided the aforesaid collision.

“3. Defendant negligently failed to have and maintain a watchman at the aforesaid crossing.

“6. Defendant negligently designed, constructed and maintained the aforesaid crossing as a dangerous and hazardous crossing by reason of the foregoing and absence of warning signs or devices or a watchman.”

Three forms of general verdict were given the jury, one providing for a finding in favor of the plaintiff for the entire amount of its damage, another providing for a finding for one-half of that amount, and the third, a finding for the defendant.

Under the instructions which the court gave the jury, the plaintiff was entitled to complete indemnity in the event the jury found that the accident was caused solely as a result of defendant shipper’s negligence; if the jury found that the negligence of both plaintiff and defendant caused the accident, the plaintiff was entitled to a verdict of one-half of its damages; and in the event the jury found that the accident was caused solely by plaintiff’s negligence, then the verdict was to be for the defendant. In addition to submitting these general forms of verdict to the jury, the court, at the request of the defendant, submitted eight interrogatories to be answered by the jury. The' jury unanimously returned a general verdict for the plaintiff for one-half of its damages, thus, in effect finding that liability arose from the joint or concurrent negligence of both parties. The interrogatories submitted to the jury are as follows:

“SPECIAL INTERROGATORY NO. 1:

“Was the plaintiff, The Erie Railroad Company, guilty of any negligence which solely and directly caused'the collision on May 17, 1950?

“Answer: No.

“SPECIAL INTERROGATORY NO. la:

“Was the defendant, The Standard Oil Company, guilty of any negligence which solely and directly caused the collision on May 17, 1950?.

“Answer: No.

“SPECIAL INTERROGATORY NO. 2:

“Was the plaintiff, The Erie Railroad Company, guilty of any negligence which directly contributed to cause the accident of May 17, 1950?

“Answer: Yes.

“SPECIAL INTERROGATORY NO. 3:

“Was the defendant, The Standard Oil Company, negligent?

“Answer: Yes.

“SPECIAL INTERROGATORY NO. 4:

“If your answer to Interrogatory No. 3 is in the affirmative, in what respect or respects, did the defendant fail to exercise that degree of care which an ordinarly reasonable and prudent person would have exercised under the same or similar circumstances?

“Answer: We feel the side track agreement of February 14, 1924, covers the complete siding, therefore, The Standard Oil Co. did fail to enforce proper a.nd adequate rules for the government of its employees on or about the side track, according to paragraph 11.

“SPECIAL INTERROGATORY NO. 5:

“If your answer to Interrogatory No. 3 is in the affirmative, what act or ácts of The Standard Oil Company, defendant, was the cause or causes which directly produced the collision and without which it would not have occurred.

“Answer: The operation of the Standard Oil truck was negligent in its manner of crossing the side track. Lack of warning signs at crossing was an added hazard.

“SPECIAL INTERROGATORY NO. 6:

“Was the sidetrack running from the Erie Railroad right-of-way to the southerly end of the oil storage warehouse in a reasonably safe condition for travel by locomotives and trains using said tracks in the ordinary manner on May 17, 1950?

“Answer: The track was safe for normal operations, but unsafe for emergency operation.

“SPECIAL INTERROGATORY NO. 7:

“Was the railroad crossing at which Lade’s accident occurred on May 17, 1950, a reasonably safe place for travel by automotive vehicles using said roalroad crossing in the ordinary manner?

“Answer: No.

“SPECIAL INTERROGATORY NO. 8:

“Was the accident of May 17, 1950, involving the Erie Railroad Company diesel locomotive and the tractor and trailer of The Standard Oil Company, which was operated by Edward W. Lade, an unavoidable accident?

“Answer: No, it could have been avoided.”

Subsequent to the jury’s return of the general verdict in favor of the railroad company, the court entered judgment accordingly for plaintiff on the verdict. Thereafter, defendant filed a motion to vacate the judgment in favor of plaintiff and to enter judgment in favor of the defendant on the ground that the jury’s answers to the interrogatories were inconsistent with its general verdict in favor of the plaintiff. On July 29, 1957, the court granted defendant’s motion to vacate its judgment for the plaintiff and to enter its judgment for the defendant on the special findings of fact and answers to the interrogatories.

The sole question presented on this appeal is whether the trial court erred in holding that the jury’s answers to the eight special interrogatories were inconsistent and irreconcilable with its general verdict in favor of the plaintiff.

The parties are in agreement concerning the effect of §2315.17 R. C., which provides that when a special finding under §2315.16 R. C., is inconsistent with the verdict, the former shall control the latter, and concerning the rule that answers to special interrogatories must be completely inconsistent and irreconcilable with a general verdict before the court can enter judgment under the provisions of §2315.17 R. C.

It has been held that in determining whether the answers to special interrogatories are inconsistent and irreconcilable with the general verdict: 1) it is the duty of the court to harmonize, if reasonably possible, a special finding of the jury with its general verdict; 2) judgment should not be rendered on special findings of fact as against the general verdict unless such findings, when construed together, are inconsistent and irreconcilable with the general verdict, and 3) that in its determination, the court may not consider the evidence but is confined to a consideration of the pleadings, the general verdict and answers to special interrogatories. The law of Ohio has been so well settled on these principles that we think it is unnecessary to discuss the various cases at any great length. See Davis v. Turner, 69 Oh St 101, 68 N. E. 819; Chris Holl Hardware Co. v. Logan Brick Supply Co., 84 Oh St 455, 95 N. E. 1144; Board of Commrs. of Mercer County v. Deitsch, 94 Oh St 1, 113 N. E. 745; Prendergast v. Ginsburg 119 Oh St 360, 164 N. E. 345; Ohio Fuel Gas Co. v. Ringler, 126 Oh St 409, 185 N. E. 553; Fox v. Conway, et al., Rcrs., 133 Oh St 273, 13 N. E. 2d, 124; Elio v. Trans. Co., 147 Oh St 363, 71 N. E. 2d 707; Klever v. Reid Bros. Express, Inc., 151 Oh St 467, 86 N. E. 2d 608; McNees v. Cincinnati Ry. Co., 152 Oh St 269, 89 N. E. 2d 138; Larrissey v. Norwalk Truck Lines, 155 Oh St 207, 98 N. E. 2d 419; Hamilton v. City of Cleveland, 93 Oh Ap 93, 110 N. E. 2d 50 (Motion to Certify overruled May 21, 1952); Young v. Featherstone Motors, Inc., 97 Oh Ap 158, 124 N. E. 2d 158; Richhart v. Richard, 77 Abs 227, syllabus 2.

In Klever v. Reid Bros. Express, Inc., supra, syllabus one states:

“It is the duty of a court to harmonize, if possible, a special finding of a jury with its general verdict.”

(See also, Larrissey v. Norwalk Truck Lines, supra, at page 214.)

In McNees v. Cincinnati Street Ry. Co., supra, syllabus one states:

“The answers of a jury to special interrogatories will not authorize a judgment different from that authorized by a general verdict, where such answers can be reconciled with the general verdict. (Davis v. Turner, 69 Oh St 101, and Ohio Fuel Gas Co., v. Ringler, 126 Oh St 409, approved and followed.)”

Coming now to consider the interrogatories and the answers thereto, it is quite apparent that all of the answers are consistent with and in harmony with the general verdict.

However, all of the answers cannot be considered for the reason that the jury in its answer .to interrogatory number four found the defendant negligent on an issue which had not been submitted to it. Likewise, the first sentence of its answer to interrogatory number five cannot be considered. Here the jury found that the shipper’s employee, Lade, was negligent in his operation of the truck when he was injured, a specification of negligence which the court instructed the jury to disregard. However, the jury’s answer to interrogatory number four and the first sentence of its answer to interrogatory number five do not invalidate its answers to other interrogatories propounded which establish the joint negligence of both parties. The answers to interrogatories one, one (a), two and three find, in effect, that both parties were guilty of negligence and neither party’s negligence was the sole cause of the accident, and both parties appear to be in agreement as to the effect of these findings.

We think that the second sentence contained in the jury’s answer to interrogatory number five, namely, “Lack of warning signs at crossing was an added hazard,” the answer to interrogatory number six that “the track was safe for normal operations, but unsafe for emergency operations,” and the negative answer to interrogatory number seven, are consistent with the general verdict and encompass the three specifications of .negligence submitted by the court to the jury, particularly specification number six, wherein it is charged that “Defendant negligently designed, constructed and maintained the aforesaid crossing as a dangerous and hazardous crossing by reason of the foregoing (i. e., the negligence charged in specifications numbers two and three) and absence of warning signs or devices or a watchman.” (Emphasis added,) Furthermore, the answer to interrogatory number eight cannot be construed as inconsistent or irreconcilable with the general verdict. We think, when construed together, it clearly appears that the answers of the jury to all of the interrogatories establish negligence on the part of the shipper as well as the railroad company, and, therefore, fix liability for the accident upon the shipper jointly and concurrently with that of the railroad company, thus bringing both parties within the terms of the indemnity agreement whereby under such circumstances each was to bear the burden of expense equally. This is true even though the answer to interrogatory number four and the first sentence of the answer to interrogatory number five cannot be considered for the reasons heretofore stated.

Counsel for the shipper stresses and to a great extent relies upon the case of Masters v. New York Central Rd. Co., 147 Oh St 293. 70 N. E. 2d 898, in support of his contention that the answers to the interrogatories are inconsistent with the general verdict. We have examined that case carefully and find it inapplicable to the instant case. In the Masters case, the jury failed or was unable to find the existence of a claimed act of negligence, whereas here the jury did find claimed acts of negligence as charged in the petition.

Finally, counsel for the shipper argues that the indemnification agreement is against public policy. We can only consider, within the narrow limits of this appeal, that part which relates to the paragraph of indemnity set forth in the petition. A reading of that paragraph clearly discloses that “The Shipper also agrees to indemnify and hold harmless the Railroad Company for loss, damage or injury from any act or omission of the Shipper, its employees or agents, to the person or property of either of the parties hereto and their employees and to the person or property of any other person or corporation, while on or upon said sidetrack * * (Emphasis added.) This relates to the negligence of the shipper only. It is only when liability shall arise from joint or concurrent negligence of both parties that any claim or liability shall be equally borne by them. In other words, the shipper shall bear the entire burden of its own negligence when the facts warrant, and in any event, its own share only, if it is jointly and concurrently negligent with the railroad.

We construe this as an agreement on the part of the shipper to indemnify or to hold harmless the railroad company only for the shipper’s own negligence, and thus respond for its own acts of commission or omission which result in injury pursuant to the terms of the agreement. The same proposition applies with equal force to the railroad company. Such an indemnity agreement certainly is not contrary to public policy.

For the reasons stated, the judgment is reversed as contrary to law and the cause remanded to the Court of Common Pleas with instructions to reinstate the judgment on the verdict of the jury, in accordance with this opinion.

Exceptions. Order see journal.

SKEEL, PJ, KOVACHY, J, concur.


author: By YOUNG, Jr., J.

text:
    STATE v. HERSHBERGER et.
    Juvenile Court, Wayne County.
    No. 2841.
    Decided April 2, 1958.

      E. Guy Hammond, Cuyahoga Falls, O. Henri Corvington, Bernard J. Roetzel and Clarence A. May, Akron, for defendants.
    James K. Leedy, Pros. Atty., Wooster, for plaintiff.
    (YOUNG, Jr., J, of the Juvenile Court of Huron County, sitting by assignment as Juvenile Judge of Wayne County.)
   OPINION

By YOUNG, Jr., J.

This matter is a charge of contempt of court. Although it bears a separate caption and case number, it grows out of and is an inseparable part of a neglect case, styled “In the Matter of Sammy Hershberger, alleged Neglected Child,” Cause No. 2835.

The neglect case was originally commenced on November 26, 1957, by the filing of a complaint by Raymond C. Sidle, the County School Attendance Officer, alleging that Sammy Hershberger was a negiected child, in that his parents refuse to provide him with proper and necessary education.

Citations were issued to the parents of the child, who are denominated as the defendants in this action, requiring them to appear before the court on December 9, 1958. The child, by counsel, moved for a thirty day continuance. Thereafter, on December 16, by agreement the case was continued until January 22, 1958. This continuance was granted upon the representation of counsel that efforts would be made to have schooling arranged for the child.

On January 22, 1957, the defendants and counsel again appeared but the child was not with them. The Attendance Officer and a Deputy Sheriff were sent to the child’s home to bring the child into court, bui were unable to find him.

The Court then continued the matter upon its motion until January 29, 1958. New citations were issued to and served upon the defendants, requiring them to appear in court at 9:00 A. M. on that date and bring the child with them. In response thereto, on January 29 1958, the defendants and the child appeared in court, with counsel, and the matter was heard upon the evidence and stipulations of counsel. At the close of the hearing, the Court stated in open court that the child was found neglected, and committed temporarily to the Wayne County Child Welfare Board. The hearing was then recessed while the Executive Secretary of the Board was called. Shortly thereafter the Court was advised that the Secretary was out of the County, and would not return until evening. Court was then reconvened, and counsel and the defendants were told that the child might return home with the defendants to stay until the representative of the Child Welfare Board came for him. Immediately thereafter, the following entry was made upon the Journal of the Court.

“This matter came on for hearing on the 29th day of January 1958, the parents of said child having been duly served with citation according to law and said parents and said child, being present in person and with counsel, and it appears that all interested persons are before the Court. The Court finds' from the evidence adduced that the said Sammy Hershberger is a neglected child in that his parents refuse to provide him with proper and necessary education and is in all respects within the statutes pertaining to neglected children.

“It is therefore ordered and adjudged that said child be made a ward of the Court, and temporarily committed to the Wayne County Child Welfare Board, to be received, cared for, and educated according to law.”

This order is unreversed and has not been appealed from, and the time for filing a motion for new trial or a notice of appeal has long since expired. The order is therefore final and conclusive upon all of the parties.

A few days after this order was made, the Executive Secretary of the Child Welfare Board advised the Court that he had been unable to get custody of the person of the child.

It should be mentioned that this case is one of five cases involving five different children. Two of the five children came with the representative of the Child Welfare Board without question; .one of the children refused to go with the representative of the Board, and his parents sat silently by; the remaining two children could not be found, although the representative of the Board made more than one trip to their homes.

The Executive Secretary then filed charges of contempt in the court, and the Court made an order requiring the defendants to appear on March 12, 1958, to show cause why they should not be punished as for a contempt for their disobedience of the order of the court. The court also ordered that notice of the rule and hearing be served upon the defendants, and this was done.

At the time set, the defendants appeared in court. The Executive Secretary of the Child Welfare Board testified as to his efforts to gain custody of the child, and his failure to do so. The defendants were given an opportunity to offer any testimony or explanation that they desired. The defendant John P. Hershberger stated that his religious convictions would not permit him to give his child up. He also stated that when he left his home to come to court, the child was there. The defendant Salome Hershberger said nothing.

The Court then stated to the defendants that they had shown no cause why they should not be punished as for contempt; that as the contempt consisted of a failure to do an act which could still be performed, that is, to permit the Child Welfare Board to have custody of the child, that they should stand committed to the County Jail until the act was performed. An order was entered upon the Journal accordingly, and a warrant was issued to the Sheriff. At the same time, the Court issued a warrant to the Sheriff to arrest the child, but this warrant had not been returned at the time of hearing on defendants’ motion for new trial on March 25, 1958 nor had the child been taken into custody.

Thereafter a motion for a new trial was filed, and shortly after that, an amended motion for new trial was filed and argued to the Court. This amended motion states some ten grounds.

At the argument upon the amended motion for new trial, the defendants stated that they would confine themselves to the first, fourth, fifth, and seventh grounds stated in the amended motion.

Before addressing itself to these matters, the court wishes to consider briefly the grounds for new trial which were not argued, because so much has been said and written about this case, especially in relation to some of these contentions, that the law upon them should be stated.

The contention that “the defendants came into court without benefit of counsel, and were not advised of their right to counsel as provided by law” is utterly without substance. The only requirement of statute is the provision of §2151.35 R. C. that the court shall permit a child to be represented by an attorney-at-law. The child was in fact represented by counsel, so the statutory- requirement was met. Defendants had several weeks time in which to provide themselves with counsel, and failed to do so.

The argument that “the Court required defendants to go forward when no evidence had been offered against them, and to be cross-examined contrary to law” is contrary to both law and fact.

“Generally, in most cases of direct contempt, the judge needs no evidence since he himself is the percipient witness, 11 O. Jur 2d 155.

“5. Upon such trial it is competent for such judge to take judicial notice of pertinent facts connected with the transaction which come within the cognizance of his own senses.” Myers v. The State, 46 Oh St 473, 22 N. E. 43, 15 Am. St. Rep. 638.

However, the testimony of the Executive Secretary of the Child Welfare Board was offered, and defendants were given the opportunity of cross-examining him, but declined to do so.

Assuming, although the contrary is arguable (Bloomberg v. Roach, 43 Oh Ap 178, Syl. 8), that the defendants could not be cross-examined the record shows that the Court, in accordance with the provisions of §2705.05 R. C., that it should “hear any answer or testimony that the accused makes or offers” permitted those of the parties who desired to do so to say what they wished about the matter. To say that defendants were cross-examined is ridiculous.

The claim that there were “irregularities in the proceedings * * * and abuse of discretion by which defendants were prevented from having a fair trial” is completely untenable. From the very beginning of this action the defendants have taken every possible advantage of the informality which is customary in Juvenile Court and authorized by §2151.35 R. C. There is a great difference between informality and irregularity, as counsel should well know. The only discretion which the Court has in this case is as to the disposition of the child, and whether or not the Court has abused it, it clearly appeared at the time of the hearing that the child was in exactly the same position that he was before the action was commenced. In fact, therefore, there has been no effective exercise of any discretion whatsoever by the Court, much less any abuse of discretion.

The catch-all ground of “errors of law occurring at the trial” does not require any comment.

The ninth and tenth ¿rounds are that “the judgment and orders of the Court herein deprive defendants of their liberties without due process of law as guaranteed by the 14th Amendment of the Federal Constitution” and “* * * interferes with and infringes the ‘inalienable right’ of defendant to worship God ‘according to the dictates of their own consciences’ as assured them by Article I, Section 7, Ohio Constitution.”

These grounds make good copy for newspapers, and set the hearts of emotional laymen to beating wildly. However, learned counsel for the defendants stated in argument that they were not making any claim that the defendants’ constitutional rights were in any way infringed. They could not do otherwise.

The first amendment to the Federal Constitution is not by its very terms applicable here, for it provides that

“Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof.”

No act of Congress is involved in this case. The Supreme Court óf Ohio has held that the first ten amendments to the Federal Constitution are not controlling upon the states. Prescott v. State, 19 Oh St 184 at 187. Stockum v. State, 106 Oh St 249.

It may be suggested that the four to three decision of the United States Supreme Court in Board of Education v. Barnette, 319 U. S. 624, 87 L. ed. 1628 upsets the doctrine of these cases, and applies the inhibitions of the first amendment against actions by Congress to actions by the state legislatures through the force of the 14th amendment. However, there is no resemblance between the facts of that case and the facts of this case. In the Barnette case, there were ceremonies in school which violated the defendants religious convictions. Here there is no claim that any particular part of the school program is wrong, it is the compulsory school attendance that is objectionable.

“Statutes making the education of children compulsory have become very general in the United States, and the constitutionality of the type of statute which has usually been enacted is beyond dispute * * 39 A. L. R. 477.

The Ohio compulsory education statutes have been held constitutional in Parr v. State, 117 Oh St 23, 157 N. E. 554. In State v. Hershberger, 103 Oh Ap 188, the Court holds, on page 192:

“No question of religious freedom is presented in this case. By requiring the defendant to provide for the proper education of his children, his right to worship according to the dictates of his conscience is in no way abridged, and his right to instruct his children in the tenet of his chosen faith is unquestioned.”

From the earliest timés, the provisions of Article I, Section 7, Ohio Constitution with respect to the rights of Conscience have been held not to justify a refusal to submit to the civil law.

“Acts evil in their nature, or dangerous to the public welfare, may be forbidden and punished, though sanctioned by one religion and prohibited by another; but this creates no preference whatever, for they would be equally forbidden and punished if all religions permitted them. Thus, no plea of his religion could shield a murderer, ravisher, or bigamist; for a community would be at the mercy of superstitution, if such crimes as these could be committed with impunity, because sanctioned by some religious delusion.” Bloom v. Richards, 2 Oh St 387 at 392.

While the Supreme Court in the quotation above refers to major crimes, in State v. Marble, 72 Oh St 21 this rule was applied to so innocuous a matter as the charging of fees by a Christian Science practitioner, a matter which the legislature recently made legal.

A man cannot extend his religious freedom until it infringes upon another person’s civil rights. Ginerich v. Swartzentruber et al, 22 N. P. (N. S.) 1.

It is abundantly clear, both in reason and in authority, that the defendant’s rights to freedom of conscience and to worship as they please are not infringed by the Ohio school laws, or the actions of this court.

Having disposed of these preliminaries, we come to the main arguments of the defendants:

1. The Court had no jurisdiction of the person of the defendants, or either of them.

4. Defendants were punished and jailed for indirect contempt by disobeying an order of court when no order had ever been issued to them personally or in any cause of action to which they or either of them were parties, or of which they had notice.

5. The alleged written charges exhibited against defendants state no cause of action for contempt against the defendants, or either of them, and by reason of this defect the court had no jurisdiction of the parties.

7. The finding and judgment of the court is not sustained by sufficient evidence and is contrary to law.

This whole situation has become so beclouded with emotions and technicalities that the real problem and issue involved are in danger of being lost.

It must be constantly kept in mind that by an unchallenged and a now unchallengable order, the child of the defendants has been made a ward of this Court, and committed temporarily to the custody of the Wayne County Child Welfare Board. Sec. 2151.55 R. C., provides that

“The principle is hereby recognized that children under the jurisdiction of the juvenile court are wards of such court, subject to the discipline and entitled to the protection of such court, which may intervene to safeguard them from neglect or injury, and to enforce the legal obligations due to them. To this end such sections shall be liberally construed.” (Emphasis by the court.)

Now, if these sections are to be liberally construed, what is the effect of §2151.28 R. C. that

“After a complaint * * * has been filed * * * the court shall issue a citation * * * requiring the parents 4 * * to appear personally and bring the child before the court at the.time and place stated. If the person cited is other than the parents * * * then the parent * * * shall also be notified of the case and of the time and place of hearing.”

Granted that the complaint is in form ex parte, and is captioned “In the Matter of Sammy Hershberger, alleged neglected child” yet it is clear from this section that the Court cannot proceed unless the parents are in court by citation or notice. In other words, regardless of the form of the action, the parents of the child are in fact parties to it. This view is reinforced by the provisions of §2151.36 R. C., which provides that the court can order the parent to pay for the care of a child that has been committed, enter a money judgment, and enforce it by execution.

The record shows clearly that the defendants were served with citations in the present case not once, but twice; that on January 29th they were, in response to the second citation, personally before the Court, with the child, and with counsel.

On that day, the Court made the order that is set forth above, in accordance with the provisions of §2151.35 R. C.

“The Juvenile Court may conduct its hearings in an informal manner, * * *. If the court finds that the child is * * * neglected, * * * it may by order entered proceed as follows;

“(B) Commit the child temporarily or permanently to the 4 * * county child welfare board * *

All of these statutes must be given meaning, they must be harmonized, and they are to be liberally construed. If this is done, the conclusion is inescapable that the defendants were in fact parties to the order which was made on January 29, the court had jurisdiction of their persons, and they were fully apprized of the judgment and order of the court.

The defendants assert in argument that that order was not an order requiring the defendants to do or refrain from doing anything; that it merely fixed the status of the defendants’ child; and therefore until the court issued an order to some officer to convey the child to the Child Welfare Board, there was no order which the defendants could be guilty of contempt by violating.

This argument concedes the point that defendants were actually parties to the proceeding, but seeks to avoid the charge of contempt by saying they were required to do nothing.

This argument overlooks the provisions of §2705.02 R. C. which says,

“A person guilty of any of the following acts may be punished as for a contempt:

“(A) Disobedience of, or resistance to, a lawful writ process, order, rule, judgment or command of a court or an officer

In other words, contempt, even under the statute, is not exclusively a matter of disobeying an order. It also involves resistance to a judgment.

Defendants conceded that there is a valid judgment here, which changed the status of the child from the child of his parents to a ward of the court temporarily committed to the Child Welfare Board.

The agent of the Board went to the home of the child, and came back without the child. Was he required at his peril to attempt to drag the child from the home of the defendants, or to seek a search warrant or other process? The child had been committed to the Board of which he was the agent. Although he made .a reasonable effort to assert the changed status of the child, the defendants admitted in open court, at the hearing on March 12, that up to the time they left their home, the child was still there. Does the argument that their conduct was entirely passive belie the fact that the judgment of the court committing the child to the Child Welfare Board was successfully resisted, and rendered entirely nugatory? It does not.

The only alternative to the finding of this court that the defendants are in contempt is to hold that an order of a juvenile court, duly entered on its journal, making a child a ward of the court and committing the child to an agency authorized to receive it is not binding on the-parents of the child unless they choose to obey it.

The juvenile court is a court of record, and exercises the power and jurisdiction of such a court. Sec. 2151.07 R. C. The power to punish for contempt is an inherent power of the court. State ex rel. Turner, v. Albin, 118 Oh St 527.

“* * * the language of the statute (§2705.02 R. C.) is not exclusive, and the Legislature has not in terms placed any limitation upon the court to extend and expand the legislative rule to other acts either of similar or dissimilar nature.” Ibid, p 531.

This court will not yield to hairsplitting contentions and fine spun webs of technicalities that leave it impotent to carry out its judgments.

It is the holding of the court that the defendants are parties to the action involving their son; that they have resisted and are resisting a lawful judgment of this court; that this court has power, both inherently and under the statutes to punish such resistance as for a contempt of this court; and that until the Wayne County Child Welfare Board has in fact the custody over the child Sammy Hershberger that it has in law, the defendants will continue to be in contempt of this court.

The notice and order to show cause which were served upon the defendants were sufficient to inform any sensible person of the charge that was laid against him; the evidence was sufficient to sustain the charge, and the defendants aré not to be excused for their misconduct.

The contention that the defendant Salome Hershberger should not be held in contempt because under the provisions of §3103.02 R. C., the husband is the head of the family, is ingenious, but hardly seems applicable to the present situation.

In the case of Imler v. Imler, 8 N. P. (N. S.) 409, 20 O. D. (N. P.) 671, the court holds that the husband’s right as head of the family to select a place and mode of living does not give him the right to require his wife and children to leave a place where the children have advantages for schooling to go to a place where there are no such advantages. It would therefore seem that in the present case, where the schooling of the child is the primary question, the defendant’s wife’s actions are her own, since she has the right to defy the husband’s authority in order to secure her child’s education.

However, there is another statute in the same chapter of the Revised Code, which seems dispositive of this question. Sec. 3103.08 R. C. reads as follows:

“Neither husband nor wife, as such, is answerable for the acts of the other.”

It is true that under the decisions prior to the enactment of that statute, it was presumed that a wife who committed a crime in the presence of her husband acted under coercion, although it should be recalled that this presumption was rebutted by proof that the wife had acted voluntarily. Tabler v. State, 34 Oh St 127 (Syl 1). It seems obvious that the enactment of §3103.08 R. C., was intended to and did abrogate these ancient and primitive rules. Again referring to §2151.28 R. C., which requires both parents to be served with citation before the Juvenile Court can gain jurisdiction of a child, if the contentions of counsel that the provisions of §3103.02 R. C. make the father all and the mother nothing, be granted there would be no necessity for citing both parents into court.

There is also the provision of §3109.03 R. C. which provides that the husband and wife “shall stand upon an equality as to the care, custody, and control of such offspring * * The court cannot select one statute and twist it to establish a preconceived notion and ignore all the other statutes which are in pari materia with it. While it may suit counsel and the newspapers to argue that these defendants are living in the seventeenth century, this court and the legislature are not. This case must be determined under the laws of today, which regard both husband and wife as individuals, with individual rights and wills, and marriage as a partnership between equals. A woman no longer ceases to be a person when she enters into a marriage; she is no longer so merged with her husband that in the eyes of the law her existence as an individual is at an end. Both defendants stand on an equal footing in this matter, under our present law, and the defendant Salome Hershberger is just as culpable as her husband.

The amended motion of the defendants for a new trial is overruled.


author: By McBRIDE. J:

text:
    STATE, Plaintiff, v. WILLIAMS et, Defendants.
    Common Pleas Court, Montgomery County.
    Nos. 1947 MSD, 1948 MSD.
    Decided September 23, 1957
    Mathias H. Heck, Pros. Atty., Frank C. Short, Asst. Pros. Atty., for plaintiff.
    Samuel McCray, for defendants.
   OPINION

By McBRIDE. J:

The within two cases charging the defendants with operating motor vehicles on a public highway without a license were transferred to this court from that of the justice of the peace and submitted upon an agreed statement of facts and briefs of counsel.

The agreed statement of facts recites:

“1. Michael Kling and George Kling are the owners in fee simple of land in Moraine Township, Montgomery County, Ohio; the eastern boundary of this tract is the center-line of East River Road and said tract extends west of said road.

“2. Michael Kling and George Kling are purchasing, by land contract executed in 1953, with the true owner as vendor, a tract of land adjoining the above-mentioned land, the western boundary of this tract being the center-line by East River Road, and this tract extending east from said road. This contract is now in effect, and has been in effect at all times since 1953. The Klings hold equitable title to this tract.

“3. George and Michael Kling are likewise partners doing business under the firm name and style of Central Sand and Gravel Co.; and as such partners and in such business operation they dig sand and gravel from various pits located on the above land, one of which pits is located on the east side of the E. River Road; they also operate a crusher into which said sand and gravel is deposited for a crushing operation; and this crusher is located on the west side of East River Road.

“4. The Klings, as a part of this sand and gravel operation, use six dump trucks; no motor vehicle licenses are purchased for these dump trucks.

“5. In the event that motor vehicle licenses were required to be purchased for these trucks, it would cost approximately $1500.00 annually, based upon current license rates.

“6. The State of Ohio owns only the easement for public roadway purposes over the land on which that part of East River Road involved herein is located. The fee simple title to the western half of the section of East River Road involved herein is in the Klings. The equitable title to the eastern half of the section of East River Road involved herein is in the Klings, with legal title in Klings’ vendor.

“7. The defendant Kermit C. Williams and defendant, Lonzer Bruce, Jr., when arrested were acting as employees of the Klings, and were making one of their ordinary and repetitive runs with dump trucks owned by the Klings, carrying sand and gravel from the pit located on the east side of the East River Road to the crusher located on the west side of the East River Road, and'then returning for another such run. The trucks were being driven by the defendants up and down East River Road, and not merely across said road. At the time of their arrest (as at all other times) the dump trucks were using only that part of the East River Road, the public highway, which was located inside the boundary of the land described in Numbers 1 and 2 above; and they were using the public roadway only for the purpose of moving the filings’ trucks about on the Klings’ own land in the course of the filings’ business; the defendants were not using the dump trucks to proceed to any other portion of the community other than the Klings’ land.

“8. After the arrest of the defendants, the arresting officer impounded each truck.”

While the interests of the owners in the real estate arises from separate transactions and is in part legal and in part equitable, Michael Kling and George Kling are the owners of land on both sides of East River Road and they are the owners of the land traversed by the public highway subject to the easement for public use. This interest in land, including the land used by the public, is subject to real estate taxes. 20 O. Jur., 805.

The Attorney General has ruled that a corporation which owns the abutting land on both sides of a public highway lying outside of a municipality is not required to pay the motor vehicle tax levied upon the operation of motor vehicles under the provisions of §6291 GC, for the operation of trucks used by it in connection with its business, where such operation consists merely of crossing such public highway at right angles, when passing from one part of its land to another. This court concurs in the opinion of the Attorney General for the reasons and upon the authorities set forth in this opinion. 1942 O. A. G. 397. Such use of the highway constitutes the use by an owner of his own property and it does not interfere with the public use.

In the instant criminal cases the State relies upon a distinction between crossing a public easement at right angles and the use of such easement by a forward movement of travel over such easement, all of which is exclusively upon land held privately in fee. The opinion of the Attorney General is correctly based upon the constitutional right of the owner to use his land and is not based upon the nominal nature of the use.

The facts in the instant cases must be distinguished from the rights of abutting owners in municipal corporations in which title to the streets and roads is held by the corporation in fee and in trust for the public. The law is too clear to require citations that where the fee to the roadway is in the abutting owner, his title is not a contingent interest or a mere expectancy, but is a present subsisting ownership of the fee. He has full dominion and control over the land, and all the rights of an absolute owner of the soil, subject only to the easement and servitude in favor of the public. He may use his land for his own purposes in any way not inconsistent with the public easement. 25 Amer. Jur., 432. So long as the owner remains exclusively upon his own land his use is not subject to a franchise or license tax even though a public easement exists. Such owner cannot be compelled to pay compensation for his own use of his own land. Sears, Trustee, v. City of Chicago, 247 Ill 204; Colegrove Water Company v. City of Hollywood, 151 Cal 425; 25 Amer. Jur., Sec. 136, page 434.

In this instance the constitutional requirement that general statutes be equal and uniform has no application because the owner is exercising his property right and not a privilege or immunity accorded under the public easement. The question of discrimination does not arise where the individual rights are not similar or equal.

The appropriate public authority has the right to regulate and control the use of the easement by the public and cannot grant any special privilege to the owner. City of Cincinnati v. Cook, 107 Oh St 223; City of Dayton v. Hickle, 68 Abs 161, (App) 122 N. E. 2d 40; Roller v. Stoecklein, (CP) 143 N. E. 2d 181, 75 Abs 453. The owner is subject to all regulations respecting public safety and operation, such as parking, speeding and the like. He may not use such public way in any manner different from or inconsistent with that of the general public. However, his right to use in a proper manner that portion of the highway easement which traverses his property is not subject to a tax so long as he retains the right to all uses of the land not inconsistent with the public right of improvement and travel. It is well established that title to the fee of a county highway generally remains in the adjoining owner, and he retains ownership of the land, subject only to the public easement. Ohio Bell Telephone Co. v. Watson Company, 112 Oh St 385. A license tax under the circumstances indicated in this case would constitute an appropriation of a separate private right without process or compensation. Cleveland Furnace Company v. Railway Company, 9 ONP (NS) (432) 426. In addition it would be an unequal tax imposed upon a private business conducted exclusively upon private property. The state has the right to exact reasonable compensation for special facilities afforded or special privileges granted but it has no reasonable right to exact such a tax against one who already owns such right or privilege.

This being a criminal action and involving a tax the customary rules of strict construction must be applied.

Verdict: Not Guilty.