author: By HORNBECK, PJ.

text:
    CURRIER, d. b. a. MARIE’S TAVERN, Appellants-Appellees, v. BOARD OF LIQUOR CONTROL, Appellees-Appellants.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5543.
    Decided March 18, 1957.
    Charles T. Kaps, Columbus, for appellants-appellees.
    William Saxbe, Atty. Geni., S. Noel Melvin, Asst. Atty. Geni., Columbus, for appellees-appellants.
    (HORNBECK, PJ, of the Second District; DEEDS and FESS, JJ of the Sixth District, sitting by designation in the Tenth District.)
   OPINION

By HORNBECK, PJ.

This is an appeal from a judgment of the Court of Common Pleas reversing an order of the Board of Liquor Control which dismissed appellees’ appeal from an order of the Department denying their application for a Class D-l permit. The judgment of the Common Pleas Court was predicated upon the finding that appellant had no hearing before the Board of Liquor Control on their appeal from the action of the Department denying their application for permit.

The appellees in this court rely upon the claim that the Board denied them any right to be heard on their appeal from the order of the Department. They concede that the findings of fact, Department’s Exhibit A, sufficiently set out subject matter which made a prima facie case upon which the Board could hold that there was no error in the action of the Department in denying the application for permit. These findings of fact determined upon the evidence that within 275 and 260 feet respectively from the proposed location of the permit premises of applicants were located the Lawn Public School and the Madison Playground. The number of students in attendance at the school and the number of children who attend the playground are set out. Further, that at the hearing on the application for the permit, authorities in control of the public school and the playground appeared and offered evidence against the granting of the permit.

In the hearing before the Board, after Exhibit A had been introduced certain inquiries were made by members of the Board and answers thereto by Mr. Currier, one of the permittees, respecting his knowledge that any objction had been interposed by representatives of the school and the playground to the granting of the permit. At the conclusion of the subject matter of these inquiries a member of the Board put this question to Mr. Currier:

“Did you have anything you wanted to tell the Board about this?

“MR. CURRIER: Outside of that, we do need the business. It is rough working six days a week just on beer and wine.”

Thereupon, another member of the Board made this observation:

“You understand what the Court of Appeals said: If any church or playground objects to the issuance and it is within 500 feet of the church; if the Director refuses to issue the permit, nothing can be done about it. The court says we can’t do anything about it. It is within the discretion of the Department; if the Department wishes to exercise discretion in that manner, it is final. Our hands are tied. That is the position we find ourselves in. There is nothing to consider outside of •the order.”

We cannot agree that the applicant for the permit was denied any right to offer testimony before the Board and certainly no proffer was made and, apparently, Mr. Currier said all that he cared to say. The observation of the member of the Board occurred after all the testimony was in. Whether or not the member of the Board correctly interpreted our ruling in Codic, Jr., v. Board of Liquor Control, 98 Oh Ap 388 is not controlling.

There was sufficient proof before the Board to support its action in dismissing applicant’s appeal from the action of the Department and nothing offered to contradict the effect of this testimony which supported the Department in exercising its discretion in refusing the permit on the facts appearing. The mere fact that one member of the Board made an observation as to his interpretation of the law is not decisive that the members or the Board failed eventually to exercise their proper function in ruling on the appeal from the Department.

Our holding in the Codic case is well set out in the second lieadnote thereof:

“There is substantial probative evidence to support the action of the Board of Liquor Control in refusing to issue a liquor permit, where the permit premises are to be operated within a distance of 500 feet from a church.”

In the very last paragraph of the opinion we say:

“The department originally, and the board on appeal, had sufficient probative evidence requiring them to exercise discretion whether or not under the provision of §6064-16 GC, the permit should be granted to the applicant.”

We did not say, nor have we in any opinion said, that no evidence could be offered purposed to show that a permit should be granted even though the permit premises were within 500 feet of any building or institution named in §4303.26 R. C. Both the Board and the Department exercise a discretion under the statute, but if there is nothing more offered than the proximity to the permit premises of an institution named in the statute, and that the institution is within 500 feet of said premises, and if there is objection made before the Department by an authorized representative of any of the named institutions, there is sufficient proof upon which the Department or the Board may exercise its discretion to refuse the permit.

The judgment of the Common Pleas Court reversing the order of the Board of Liquor Control is reversed. The order of the Board was supported by reliable, probative and substantial evidence.

Judgment reversed.

DEEDS and FESS, JJ, concur.


source: Caselaw Access Project

author: By KOVACHY, J: By SKEEL, PJ.

license: Public Domain

text:
    LAUGHLIN, Plaintiff -Appellant, v. CLEVELAND (City) (Cleveland Transit System), Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24317.
    Decided February 27, 1958.

      John R. Crossen, J. W. Wursthorn, for plaintiff-appellant.
    Robert F. Mooney, Robert Fletcher, for defendant-appellee.
   OPINION

By KOVACHY, J:

This appeal comes to this court on questions of law from a judgment entered in the Common Pleas Court of Cuyahoga County wherein the trial court directed the jury to bring a verdict in favor of the defendant at the close of plaintiff’s evidence.

Plaintiff, appellant herein, assigns as errors (1) the court’s refusal to submit the case to the jury and (2) the court’s refusal to allow a poll of the jury.

At the very outset, we overrule assignment No. 2 which is palpably without merit. A directed verdict in favor of a party is the decision of the court. The jury in such case is merely the instrumentality for carrying out the order of the trial judge and acts purely in a ministerial capacity. The polling of the jury under those circumstances not only has no sanction in law but could be of no help whatever to the trial court or an appellate court in determining the question of whether or not reasonable minds can differ as to the evidence presented when construed most favorably in behalf of the party against whom the motion for a directed verdict is presented.

The case here involves a collision between an automobile driven by plaintiff and a bus operated by the Cleveland Transit System at the intersection of Milford Road, Meadowbrook Boulevard and Warrensville Center Road in University Heights.

Milford Road runs northwest and southeast, Meadowbrook Boulevard northeast and southwest, and Warrensville Center Road north and south. Meadowbrook Boulevard and Milford Road join Warrensville Center Road from the east. Meadowbrook Boulevard alone continues westerly from Warrensville Center Road. Plaintiff’s Exhibits 1 and 4 show a stop sign for southwest traffic on Meadowbrook Boulevard before entering the intersection but none for Milford Road although the plaintiff testified there was a stop sign there.

This five-point intersection is controlled by three sets of automatic traffic lights positioned as shown in Joint Exhibit No. 1. The northernmost set controls traffic flowing northbound on Warrensville Center Road. The southernmost set controls traffic flowing southbound on Warrensville Center Road. The set in between these two controls the flow of traffic on Milford Road and Meadowbrook Boulevard.

Plaintiff testified that he was driving northwest on Milford Road about 7:15 A. M. on March 25, 1954, in daylight; that as he approached this intersection, the traffic light that controls traffic on Meadowbrook Boulevard and Milford Road was “Green” or “go”; that he was going ten to fifteen miles per hour; that he looked to his right to see if there was any traffic on Meadowbrook Boulevard and that he saw nothing; that there were no leaves as yet on the trees and he could see up Meadow-brook Boulevard for one hundred feet; that he looked to the left and “saw no traffic coming from Warrensville north his way from Meadow-brook” and “proceeded to take advantage of the green light and came across, almost made my complete crossing of this junction here when I was struck.” He testified further that he proceeded in a straight course from Milford Road across the intersection comprising the open space within the prolongation of the curb lines of Meadowbrook Boulevard and Milford Road and was about to start turning to the right to go north on Warrensville Center Road when a bus operated by the defendant southwest on Meadowbrook Boulevard struck the midsection of the right of his automobile with its left front corner.

Plaintiff in his amended petition alleges that the defendant in the operation of its bus was negligent in the following respects:

1. In that it failed to abate the speed of its vehicle when its agent saw or should have seen plaintiff’s automobile in its path;

2. In that through its agent it failed to keep a proper lookout for other traffic, particularly the vehicle driven by plaintiff; ■

3. In that it failed to sound a warning to plaintiff when it saw or should have seen him in its path; and

4. In that it failed to divert the course of its vehicle when it saw the automobile driven by plaintiff in its path.

* * * * *

Plaintiff in his brief and in argument contends that the evidence, when construed most strongly in favor of the plaintiff, showed that the plaintiff exercised due diligence while entering the intersection of the streets he and the bus were traveling, and that since the plaintiff saw no bus coming when he first looked to the right and could see some one hundred feet up Meadowbrook Boulevard and the accident occurred thereafter after the lapse of several seconds, it is reasonable to infer that the driver of the bus was proceeding at a speed at which he was unable to maintain proper control of his vehicle and that he did not exercise diligence in observing oncoming traffic, in wanton disregard of the rights of others.

The defendant maintains that since Meadowbrook Boulevard and Milford Road were controlled by the “same face of the same traffic light” there was no traffic control as between those two streets and that consequently the vehicle to the right had the right of way under §4511.41 R. C. The defendant further maintains that one cannot infer that the bus was operated at an unlawful rate of speed from the lone fact that plaintiff did not see any vehicle for one hundred feet when he looked up Meadowbrook Boulevard, so as to deprive itself of its preferential right of way, citing as authority Lamden v. City of Cleveland, 165 Oh St 177, 134 N. E. (2d) 380. The trial court adopted defendant’s view of the law in its ruling on the motion.

* * * * *

There can be no question in this case that the traffic control signal regulated traffic on both Meadowbrook Boulevard and Milford Road. It was hung, as shown in Plaintiff’s Exhibit No. 4, with the face on the east side pointing more toward Milford Road than Meadowbrook Boulevard but clearly intending to control traffic on both streets. Moreover, the streets are of equal width and extend through residential districts. They converge from a generally easterly direction and intersect each other and Warrensville Center Road to form a five-point intersection

Sec. 4511.13 R. C., in parts pertinent hereto reads;

“Whenever traffic is controlled by traffic control signals exhibiting the words ‘go,’ ‘caution,’ or ‘stop,’ or exhibiting different colored lights successively one at a time . . . the following colors only shall be used and the terms and light shall indicate and apply to operators of vehicles, streetcars and trackless trolleys, and pedestrians as follows:

“(A) Green alone or ‘go’ signal:

“(1).....

“(2) All other traffic facing the signal except as provided under §§4511.36 and 4511.58 R. C., may proceed straight through or turn right or left, unless a sign at such place prohibits either such turn. But such traffic shall yield the right of way to vehicles, streetcars, and trackless trolleys lawfully within the intersection and to pedestrians lawfully within a crosswalk at the time such signal is exhibited.”

“Intersection” is defined in §4511.01 (II) R. C.:

“ ‘Intersection’ means the area embraced within the prolongation of the lateral boundary lines of two or more highways which join one another.”

It is our view, on the basis of the conditions existing at this intersection and the law applicable thereto, that vehicles proceeding westerly on Meadowbrook Boulevard and Milford Road had equal rights to enter and proceed across said intersection on the “green” or “go” light subject only to the qualification that each exercise ordinary care commensurate with the existing danger of collision.

In Welch v. Canton City Lines, Inc., 142 Oh St 166, 50 N. E. (2d) 343, wherein an accident took place between two busses at an intersection, one crossing the intersection east on the “green” light and the other north with the light on its side not in operation, the Supreme Court held in paragraph 2 and 3 of the syllabus, as follows:

“2. A motor vehicle has the right to enter any street intersection upon a signal by a police officer or a green or go light in a traffic signal located in such intersection, but such driver is not absolved from exercising ordinary care in operating such vehicle.

“3. Where a motor vehicle traveling north in a lawful manner on a main thoroughfare enters a street intersection prior to another motor vehicle which is traveling east on an intersecting street and enters such intersection upon a green or go light, both vehicles are lawfully in such intersection; the drivers of such vehicles have equal rights and each is required to exercise ordinary care to avoid a collision.” (See Ohio Oil Co. v. Liles, 54 Oh Ap 124, 6 N. E. [2d] 18.)

We hold, therefore, that the traffic light here in question controlled the movement of traffic on both Meadowbrook Boulevard and Milford Road; that plaintiff’s automobile and defendant’s bus were lawfully within the intersection of these streets, having entered on the “green” or “go” light; that the drivers of these vehicles had equal rights to proceed across said intersection subject to the duty of each to exercise ordinary care commensurate with the conditions and circumstances existing to avoid a collision; that the statute granting the vehicle approaching from the right the right of way had no application.

The court in considering a motion for a directed verdict at the close of plaintiff’s evidence must construe the evidence, together with all reasonable inferences, most strongly in favor of the plaintiff. In view of plaintiff’s testimony that the bus struck the side of plaintiff’s automobile when he had almost traversed the intersection, and in view, further, of plaintiff’s evidence that as he entered the intersection the bus was not in sight within approximately a distance of one hundred feet on Meadowbrook Boulevard, a reasonable inference might be drawn that the driver of the bus was negligent in so running into him by failing to abate his speed, keep a proper lookout, sound a warning or divert his course when he saw or should have seen plaintiff’s automobile. At least it presented an issue upon which reasonable minds could reach different conclusions and was for a jury to decide. By reason whereof, the motion for a directed verdict should have been overruled and the defendant required to go forward with his evidence.

Leonard v. Kreider, 128 Oh St 267, 190 N. E. 634:

“2. It is prejudicial error for a trial court to direct a verdict in favor of the defendant at the conclusion of the plaintiff’s evidence when reasonable minds might conclude that such evidence establishes all the essential elements of the plaintiff’s case.”

Accordingly, the judgment is reversed and the cause remanded for further proceedings according to law. Exceptions. Order see journal.

HURD, J, concurs.

SKEEL, PJ, dissents'.

DISSENTING OPINION

By SKEEL, PJ.

The plaintiff’s action is one seeking damages resulting from the alleged negligence of the defendant in the operation of one of its buses on the morning of March 25, 1954, at the intersection of Meadow-brook Boulevard, Milford Road and Warrensville Center Road, in the City of University Heights.

Warrensville Center Road, which is a through highway, as defined by §4511.01 (F. F.) and §4511.07 (F) R. C., is ninety three feet wide, the roadway of which is sixty five feet in width, which road runs in a northerly and southerly direction. Meadowbrook Boulevard intersects Warrensville Center Road at an angle of about 55° running to the northeast, and at the same angle to the southwest. Meadowbrook Boulevard is also a through highway (See §4511.01 [F. F.] and §4511.07 [F] R. C.), upon which the defendant operates one of its bus lines as a part of its public passenger transportation system. Milford Road runs southeast, beginning at the intersection at Warrensville Center Road with Meadowbrook Boulevard, so that the total expanse of roadway in the intersection on the east side of Warrensville Center Road is one hundred seventy six feet at the curb line, ninety feet at the closest point where the northerly side of Meadowbrook Boulevard comes to the southerly side of Milford intersection and extending from the easterly side of Warrensville Center Road to the most westerly point of the circular curb line between the two converging streets, a distance of sixty six feet. There is a traffic stop sign on the north or northeast side of Milford Road just before it reaches its intersection with the west side of Meadowbrook Boulevard.

Sec. 4511.01 (F. F.) R. C., provides:

“ ‘Through highway’ means every highway or portion thereof at the entrance to which vehicular traffic from intersecting highways is required by law to stop before entering or crossing the same.”

Sec. 4511.07 (F) R. C.. provides:

“Designating any highway as a through highway and requiring that all vehicles, trackless trolleys, and streetcars stop before entering or crossing the same, or designating any intersection as a stop intersection and requiring all vehicles, trackless trolleys, and streetcars to stop at one or more entrances to such intersection;”

There are three traffic lights at this intersection. One is in the center of the northbound half of the roadway of Warrensville Center Road opposite the northerly part of Meadowbrook Boulevard, running to the east from Warrensville Center Road. One is in the middle of the southbound roadway of Warrensville Center Road opposite the southerly part of Meadowbrook Boulevard, running to the west from Warrensville Center Road. These two lights control the movement of north and south bound traffic. The third light is in the center of Warrensville Center Road at a point where the center line of Meadowbrook Boulevard crosses Warrensville Center Road, its position being in no observable relation to either the continuation of the center line or curb lines or otherwise of Milford Road and from photographs introduced by the plaintiff, the direction of the light which controls traffic crossing Warrensville Center Road at this intersection is at about the angle and pointing directly toward Meadowbrook Boulevard to the west and in approximately the same general direction toward Meadowbrook Boulevard to the east.

The plaintiff, a doctor, at 7:15 A. M. (it then being broad daylight), was driving northwest on Milford intending to pass through the easterly side of the intersection just described to go north on Warrensville Center Road on his way to Huron Road Hospital in East Cleveland. In doing so, he met with the a«eident that is the subject of this action. In describing what took place, he testified:

“Q. As you came down Milford on the day of the accident, was there a stop sign there?

“A. Yes, sir.

“Q. Did you stop?

“A. No, sir.

“Q. Why did you not stop?

“A. I didn’t stop because I had the green light.

“Q. You had the green light where?

“A. The green light for this particular street, for Milford.

“Q. Would that be the green light that I am indicating on Plaintiff’s Exhibit I here?

“A. Yes, sir. It is the green light that regulates Meadowbrook and Milford.”

There is no evidence in the record other than the opinion of the plaintiff, as just quoted (which is a pure conclusion on his part), that the traffic light to which he referred as controlling traffic over or into Warrensville Center Road at this intersection, was intended to apply equally to and give the same right to proceed into Warrensville Center Road from Milford Road without concern (except for the duty to exercise ordinary care) as to traffic likewise moving in a westerly direction from Meadowbrook Boulevard (a through road), into or across Warrens-ville Center Road. These two streets intersect at a point sixty six feet east of Warrensville Center Road and a vehicle moving into the intersection from Milford Road to go north on Warrensville Center Road passes at an angle over all of Meadowbrook Road to accomplish such purpose.

The plaintiff testified further as follows: •

“As you approached Meadowbrook, you were coming slightly downgrade, were you not.

“A. That’s right.

“Q. As you approached Meadowbrook, approximately how fast were you driving?

“A. 10 or 15 miles an hour, I would judge.

“Q. Did you at any time see the traffic light, as indicated on Plaintiff’s Exhibit 1, to the right here?

“A. Yes, sir.

“Q. What color was that traffic light?

“A. It was green.

“Q. Did you look to your right at any time — can you see it, Judge?

“THE COURT: Are we talking about the traffic light in the center, now? I don’t want to obscure the view of any juror.

“Q. It was green. And you have said you were driving at 10 or 15 miles an hour, I believe.

“Did you look to your right at any time before entering the intersection?

“A. Yes. I first looked to my right to see if there was any traffic on Meadowbrook, and I saw nothing.

“Q. Doctor, what time of the year did this accident occur?

“A. In March.

“Q. Were there any leaves on the trees at that time?

“A. No. The trees were pretty much as you see now in this picture.

“Q. How far up Meadowbrook could you see when you looked to your right?

“A. Approximately 100 feet, I would say.

“Q. Did you see any traffic coming?

“A. I didn’t see any traffic coming.

“Q. Was there any traffic coming?

“A. I don’t know. I did not see any traffic. I didn’t know there was any traffic coming until the accident occurred later.

“Q. That isn’t what I asked you.

“A. I looked—

“Q. Now—

“A. I looked to my right, I saw nothing.

“Q. And how far could you see?

“A. I could see up here at least a hundred feet.

“Q. At least a hundred feet?

“A. I then looked to my—

“Q. Please wait for the question, doctor. What is your vision?

“A. 20/30 and 20/40.

“Q. You wear glasses, I notice?

“A. Yes, sir. I have astigmatism.

“Q. Were you wearing glasses at that time?

“A, Y.es, sir.

“Q. Was it daylight or dark?

“A. 7:15 in the morning; it was daylight.

“Q. Did you have the lights on in your car?

“A. No, sir.

■ “Q. It was daylight enough that you did not need the lights?

“A. That’s right.

“Q. So you looked to your right and you could see a hundred feet or so up there and there was no traffic coming. Then what did you do?

“A. Then I looked to the left to see how clear I was on the Warrens-ville side, and I saw no traffic coming from Warrensville north this way from Meadowbrook. And so I proceeded to take advantage of the green light and came across, almost made my complete crossing of this junction here when I was struck.

“THE COURT: I understand the witness to say he saw no traffic going north on Warrensville Center?

“THE WITNESS: I saw no traffic anywhere.

“Q. When you turned your head to the left, did you glance back up Warrensville?

“A. Yes, sir. I looked south on Warrensville and southwest on Meadowbrook, and then was in the process of turning my head when the accident occurred.

“Q. Will you resume the stand, please?

(Witness resumes the witness stand.)

“Q. Now, you say an accident occurred. Do you mean by that your automobile was involved in an accident with a bus, is that right?

“A. Yes, sir.

“Q. What part of your automobile was struck?

“A. The mid-section of the right side of the car.

“Q. The mid-section of the right side. Do you know, of your own knowledge, what part of the bus struck you?

“A. Yes. The left front corner of the bus struck me in the side.

“Q. How do you know that?

“A. I saw it after I got out of the car.”

The plaintiff then testified that the bus driver tried to get him to sign a release and that he had to listen to a lecture while he was getting out of his car. He then went to the home of a neighbor and called the police. Upon arrival at the scene, the police asked him how he was. He then told them:

“That I would "like to go to Huron Road Hospital. And they said— I said, ‘Just take care of the car as you see fit.’ So that they took me to Huron Road Hospital, and that was that.”

When the plaintiff reached the hospital, he proceeded with a scheduled operation which he described as “the removal of a stone from a kidney.”

On cross-examination, the plaintiff again gave his version of the collision as follows:

“Q. As I understand what you said, as you were approaching this intersection you first looked to the right, then you entered the intersection and looked to the left down Warrensville, I think you said south on Warrensville?

"A. No, I didn’t say any of that.

“Q. Well, doctor, supposing you tell us what you did, then?

“A. All right.

“Q. Then I will understand.

“A. I approached the intersection and noticed I had the green light. That was the first thing. Then I looked to the right and saw no traffic coming, which was up Meadowbrook.

“Q. Where were you when you looked to the right, if you don’t mind my interrupting?

“A. I do mind.

“Q. I am sorry, doctor, but this is a courtroom and you are not the doctor.

“A. That’s perfectly all right. I just want to know which question to answer first.

“Q. Where were you when you looked to the right, doctor? That’s all.

“A. I was approaching the intersection.

“Q. All right. Then what happened?

“A. Then I looked to the right, first looked at the green light that was on. I looked to the right to see if there was any traffic coming from Meadowbrook. I saw no traffic. I then looked to the left to see if there was any traffic coming northerly on Warrensville or northeasterly on Meadowbrook, and I saw no traffic. So I proceeded to go right across my intersection. And as I turned my head, apparently that is when—

“Q. You never again looked to the right, did you? You were struck as you were looking back from your look to the left, is that correct?

“A. As I turned my head to the right, I was struck.

“Q. When you turned your head back to the right, doctor, how far did you turn it? Maybe that will make it a little clearer.

“A. I wouldn’t be able to answer that, I’m sorry. I don’t know.

“Q. Did you ever see the bus before the accident happened?

“A. No, I never saw the bus before the accident happened.”

It is the unquestioned and uncontradicted story of the plaintiff that he did not stop at the stop sign when he drove out of Milford into the intersection, that he looked to his right and did not observe any traffic moving west on Meadowbrook Boulevard. He then proceeded into the intersection at from 10 to 15 miles per hour until he got to a point a few feet from the east curb line of Warrensville Center Road, and north by a few feet of the center line of the combined intersection of Meadow-brook Boulevard with Milford Road when the right side of his automobile was struck by the front left corner of defendant’s bus, where (the evidence seems to indicate) both vehicles came to a complete stop. The distance plaintiff traveled, as measured on one of plaintiff’s exhibits, from the stop sign on Milford Road to the place which plaintiff marked as the place where the vehicles collided, was somewhat more than eighty feet, which at 10 miles per hour, would take five seconds to traverse, or at 15 miles per hour, 3V2 seconds to traverse. The plaintiff testified that while driving this distance, he never saw the bus until the collision took place although the intersection was clear and without obstruction. The approach of the bus was clearly to the right of plaintiff’s automobile.

Sec. 4511.41 R. C., provides:

“The operator of a vehicle, streetcar, or trackless trolley, shall yield the right of way at an intersection to a vehicle, streetcar, or trackless trolley approaching from the right.”

Sec. 4511.43 R. C., provides:

“The operator of a vehicle, intending to enter a through highway, shall yield the right of way to all other vehicles, street cars, or trackless trolleys on said through highway.

“The operator of a vehicle, streetcar, or trackless trolley shall stop in obedience to a stop sign at an intersection and shall yield the right of way to all other vehicles, streetcars, or trackless trolleys not obliged to stop.

“The operator of a vehicle, streetcar, or trackless trolley in obedience to a yield sign shall yield the right of way to all other vehicles, streetcars, trackless trolleys, or pedestrians approaching from a different direction into its or his path.”

As indicated, Meadowbrook Boulevard is a through highway. The plaintiff drove into the intersection without stopping and continued into the path of the bus without affording it the right of way, that is, he continued on into the intersection, arriving at the point of the collision just in time to be struck by defendant’s bus.

It is, of course, necessary for the court to give the most favorable light to the evidence of the plaintiff in passing on the motion for judgment at the conclusion of the plaintiff’s case but in doing so, the court, in this case, has also the right to consider, as is clearly shown by the record, the unrestrained arrogance of the plaintiff toward the judicial process of which he is seeking to invoke its benefits.

The evidence so considered was such that the trial court was completely justified in finding that reasonable minds could come to but one conclusion as to the failure of the plaintiff to make out a prima facie case against the defendant. There is not a syllable of evidence as to the conduct of the bus driver or that any negligent act of his was a proximate cause of the collision. In fact, no act of this bus driver is shown prior to the actual collision.

The Supreme Court in the case of Pitt v. Nichols, 138 Oh St 555, 37 N. E. (2d) 379, in syllabus one, said:

“1. A presumption of negligence does not arise from the mere fact that a collision occurred which resulted in injury. Some evidence must be adduced tending to show failure in the performance of some duty by the party charged therewith, and it must be evidence from which a rational conclusion of negligence can be drawn.”

Likewise, in the case of Parras v. The Standard Oil Co., 160 Oh St 315, 116 N. E. (2d) 300, in syllabus one, the Supreme Court said:

“1. The mere happening of an accident gives rise to no presumption of negligence, and where one is accidentally injured while he is a business guest upon the premises of another, the burden is upon the person injured to show negligence upon the part of such other before he can recover damages from such other.”

In considering the question of negligence of a driver of a motor vehicle having the right of way at an intersection, he must be judged as to his conduct with the benefit of such right. Indianapolis & Southeastern Trailways, Inc. v. Cincinnati Street Ry. Co., 166 Oh St 310, 142 N. E. (2d) 515. Other drivers coming within the intersection must, in the exercise of ordinary care, respect such preferential right of way. Without any evidence of misconduct of the bus driver, or as is the fact here, no evidence of any kind dealing with the manner in which the bus driver drove into the intersection, except the actual collision, the plaintiff has completely failed to make out a prima facie case.

The evidence that the plaintiff did not see a bus when he looked to the right is negative in character and of no value here when from the physical facts, as alleged by the plaintiff, the. bus was at the scene, and the attempt to show negligence on the part of the bus driver, without some direct evidence describing his conduct, a prima facie case is not established, the duty to look for approaching traffic and to see what, in the exercise of due care, was there to be seen, was clearly the obligation of the plaintiff. In the case of MacDiarmid Candy Co. v. Schwartz, 11 Oh Ap 303, at page 305, in discussing the duty of a plaintiff not only to look but also to see what is there to see, the court said:

“Whether we accept the version of the occurrences there as claimed by the plaintiff, that he walked across the cross-walk in front of an approaching machine after looking and failing to see the machine, and after the street car had moved southward (the only effect of which could be to enlarge his field of vision), or accept the version established by the other witnesses, that plaintiff rounded the rear of the southbound street car while it was at a standstill, and crossed the street at a point not on the cross-walk, in the path of an approaching lighted automobile, at the intersection lighted by an arc light, we are unable to distinguish this case under either version from the following authorities: Schmidt v. Schalm, 2 Oh Ap 268; Green v. Northern Ohio Traction & Light Co., 16 C. C., N. S., 474, and Shott v. Korn, 17 C. C., N. S., 393. It is apparent to us that under either version the plaintiff did not look in crossing said street, and thereby failed to use his senses for his own safety; or, if he did look and failed to see the automobile, under the circumstances the situation is the same; or if he did look and saw the machine, he dashed across the street in front of the approaching machine. In either event, under the above authorities, he was guilty of contributory negligence as a matter of law under the circumstances of this case, which prevents a recovery.”

The syllabus in the MacDiarmid Candy Company case, above referred to, provides:

“One who alights from a street car, passes behind the same, and thence into the pathway of an approaching automobile, is, as a matter of law, guilty of contributory negligence, which prevents a recovery of damages, by failing to look before crossing the street, or by looking and failing to see the automobile, or by proceeding across the street in front of such approaching machine after seeing the same.”

See also, The Martin Baking Co. v. Tompkinson, 27 Oh Ap 355, syllabus 3, 161 N. E. 288.

In the case of Kazdan v. Stein, 118 Oh St 217, 160 N. E. 704, the syllabus provides:

“Evidence which generally and categorically denies the existence of a fact may be so discredited or may so discredit itself as to destroy its probative value; but no degree of discredit which does not of itself amount to affirmative proof of such fact, will afford a foundation upon which to base an inference that the fact exists.”

For the foregoing reasons, the judgment of the trial court should be affirmed.


author: By BARTLETT, J.

text:
    PIONEER MUTUAL CASUALTY COMPANY, Plaintiff, v. BETTON et, Defendants.
    Common Pleas Court, Franklin County.
    No. 193859.
    Decided March 3, 1958.

      Dresbach, Crabbe, Newlon, Collopy & Bilger, for plaintiff.
    Rees & Herron, for defendant Betton.
   OPINION

By BARTLETT, J.

This is a declaratory judgment proceeding wherein the plaintiff company seeks to have its liability insurance policy issued to the defendant, Lee H. Betton, declared null and void, on the ground of false representations by the insured in his application for said policy, dated March 10, 1955, covering his Chrysler automobile.

Plaintiff’s petition further discloses that the defendant Betton on July 1, 1955, while driving said Chrysler automobile, was involved in a collision with two other automobiles; that certain civil actions have been filed against the defendant Betton in this court to recover damages growing out of said automobile collisions; and that the defendant Betton has demanded that the plaintiff company defend him in said lawsuits in compliance with his liability insurance policy with plaintiff company.

Plaintiff company asks the Court to find and declare that said liability policy was of no force and effect at the time of said automobile collisions, and that the plaintiff company is not obligated to defend said Betton in said civil actions growing out of said automobile collisions, because of his alleged false representations in his application for said liability insurance policy issued by the plaintiff company.

The petition in the instant case states a cause of the character of an action in chancery for cancellation, and should be treated as one in chancery. If so, there is no constitutional or absolute statutory right to a trial by jury. Renee v. Sanders, Exr., et al, 160 Oh St 279; Pioneer Mutual Casualty Co., etc. v. Pennsylvania Greyhound Lines, et al, 68 Oh Ap 139.

“So where, in a civil action in which the plaintiff seeks equitable relief in respect of an alleged legal right, * * *, if the issue thus raised is a substantial issue of fact, its emergence may give rise to a question as to the mode of trial, * * *, a situation of this kind might induce a chancery court, in the exercise of its discretion, * * * under the code, * * *, depending on the nature of the case, (1) to impanel a jury and take a special advisory verdict, * * 20 O. Jur. (2d) p. 40. Sec. 14.

The last paragraph of §2311.04 R. C., recognizing the power of the court to order any issue to be tried by a jury, was formerly known as §11380 GC, and many Ohio courts have exercised their discretion in that respect.

Where the Court, in an equity case, submits to a jury issues of fact that are triable by the Court, the jury verdict is not conclusive, but the Court may decree notwithstanding the verdict. Morgan and Co. v. Spangler, 20 Oh St 38; such finding of the jury on a question of fact in an equity case is not binding upon the Court; but under §11380 GC (now §2311.04 R. C.), the Court may impanel a jury to try an issue of fact for the purpose of aiding the Court in the determination of the issue. It is the duty of the Court to finally determine the issue 'of fact tried by the jury. Acme Mortgage Co. v. Parker, et al, 17 Abs 97.

This Court in the instant case submitted certain substantial issues of fact to the jury for the purpose of aiding the Court in its determination of such issues.

Certain of the-issues of fact submitted to the jury and the finding of the jury thereon will be hereafter referred to.

The application of defendant Betton for such insurance policy, among other questions, contained these two:

“Item 7. Do you or any driver of the automobile have any physical impairment or deformity?

“Item 7a. Have you or any driver of the automobile had any automobile accidents during the last three years?”

The defendant Betton answered both of these questions, “No”; and the plaintiff Insurance Company bases its claim of false representations on these two answers.

The amended petition of the plaintiff Insurance Company contains the following allegation:

“4. The defendant, Lee H. Betton, had a physical impairment known to him to be a nervous disorder for the treatment of which he was confined to a hospital at Wright Patterson Field for approximately six months, by reason of which he was discharged from military service, and for which he was under the care of physicians at the time of the execution of his application for insurance.”

The amended answer of the defendant Betton denies that he ever had any physical impairment or deformity.

At the trial the defendant Betton testified he had a nervous breakdown, was confined to Wright Patterson Field for treatment, was given a medical discharge from the army because of such condition, and that he still has a nervous stomach.

By an entry agreed to by counsel for plaintiff insurance company and the defendant Betton, the following question was submitted to the jury:

“10. Did the defendant, Lee H. Betton, or any other driver of the 1951 Chrysler Imperial automobile have any physical impairment or deformity?”

The answer of the jury was, “No”; and the Court concurs in that finding of fact by the jury.

The Court instructed the jury:

“Now, as a matter of law on those questions I want to instruct the jury that whether such a condition be termed an ‘anxiety state,’ a ‘nervous illness,’ or a ‘neurosis,’ it is inescapable that it is a disease and is mental rather than physical. Webster’s Unabridged Dictionary defines ‘physical’ as ‘of or pertaining to the body as contrasted with the mind.’ The Standard dictionaries define ‘Physical’ as ‘Relating to or pertaining to the body as distinguished from the mind or soul or emotions.’ ”

“In an action such as this where the company seeks to declare an insurance policy void, if there is an ambiguity in the insurance contract, the writing must be construed most favorably to the insured. The company must establish such misrepresentation by clear and convincing proof.”

Simmonds v. Eyrich, et al., 95 N. E. Rep. (2d) p. 595; (Hamilton County, Ohio, Common Pleas Court); American General Ins. Co. v. Bailey, 268 S. W. (2d) p. 528 (Court of Civil Appeals of Texas).

The amended petition of the plaintiff insurance company contains the following allegation:

“2. The defendant, Lee H. Betton, was involved in an automobile accident on August 29, 1954, at the intersection of Joyce Avenue and East 5th Avenue in Columbus, Ohio.”

The amended answer of the defendant Betton denies that he was operating a motor vehicle that was involved in an accident on August 29, 1954, at the intersection of Joyce Avenue and East Fifth Avenue in Columbus.

By the agreed entry of counsel for the plaintiff insurance company and the defendant Betton, this question was submitted to the jury.

“8. Was the defendant, Lee H. Betton, the driver or operator of a motor vehicle involved in an automobile accident on August 29, 1954, at the intersection of Joyce Avenue and East Fifth Avenue in Columbus, Ohio?”

The answer of the jury was “No,” and the Court concurs in that finding of fact by the jury.

The defendant Betton testified that a young girl was driving his car while he was seated on the front seat of the car beside her; but she had no driver’s license, so he paid a fine and did not involve the girl. Mrs. Addie Smith testified she was driving Betton’s car, made an illegal left turn, and hit the headlight of the other car. She stated she furnished the money for the defendant Betton to pay the fine and repairs for the other car. The jury believed her and so did the Court. In any event, there was a conflict of evidence, and we cannot say that the plaintiff has sustained the burden of proof in proving all the elements of fraud by clear and convincing proof. 22 O. Jur. p. 892, Sec. 794.

The amended petition alleged:

“1. The defendant Lee H. Betton was involved in an automobile accident on November 7, 1953, at the intersection of Cleveland Avenue and East Second Avenue in the City of Columbus, Ohio.”

The amended answer of defendant Betton denies that he was operating a motor vehicle that was involved in an accident on November 7, 1953, at the intersection of Cleveland Avenue and East Second Avenue in the City of Columbus, Ohio.

The agreed entry of counsel for plaintiff and defendant Betton submitted the following question to the jury:

“7. Was the defendant, Lee H. Betton, the driver or operator of a motor vehicle involved in an automobile accident on November 7, 1953, at the intersection of Cleveland Avenue and East Second Avenue in the City of Columbus, Ohio?”

The jury answered “yes,” and this is the one finding of fact that the Court cannot approve. The Court’s finding is that Betton’s car was standing still when another car came around the corner and struck it while Betton’s young sister was seated under the wheel of his car. Betton’s mother testified positively his car was standing, still when struck. His sister agrees with her mother saying, “I got under the wheel and as they were getting out to push the car, then a car on Second Avenue turned left, hit the car, the door.” Betton says he was pushing the car, but does not say his car was moving when hit. The evidence preponderates that the car wás standing still. In any event plaintiff has not sustained the burden of proof by clear and convincing proof. Betton was not driving or operating the car if it was standing still.

The amended petition contained the averment:

“3. The defendant, Lee H. Betton, was involved in an automobile accident on Tenth Avenue near Michigan Avenue in Columbus, Ohio, on or about October 18, 1954.”

The amended answer of defendant Betton admits that in parking a motor vehicle on October 18, 1954, on Tenth' Avenue near Michigan Avenue in Columbus, Ohio, he cut too sharply and scratched a fender; that he left his name on the damaged automobile but that no claim has ever been presented to him by the owner thereof. His testimony was to the same effect.

The Court cannot accept this incident as a material misrepresentation of fact. If an incident such as this is sufficient proof of a bad risk to warrant liability insurance companies in refusing to issue policies with full knowledge of such an incident, such companies may as well close their doors, since there would not be enough business to justify their existence; and on the other hand, it would be a fraud on the public to relieve such liability insurance companies because of such scratched fender incidents.

The jury also found that neither of the answers by the defendant Betton was given with intent to deceive; and that neither of such answers of the defendant Betton materially affected the hazards assumed by said insurance company. The Court concurs in both of these findings of fact by the jury.

The plaintiff insurance company saw fit to resort to an independent investigation in order to determine whether the defendant Betton was a good risk. It sought information from other sources, rather than rely on the faith of the representations of defendant Betton. 8 O. Jur. (2d) p. 404, Sec. 14; Pioneer Mutual Casualty Co., 104 Oh Ap 15, 18.

We conclude that the plaintiff company has not proven'by clear and convincing proof that the insured made material false representations with intent to mislead the plaintiff company, and that it relied solely on such false representations.

The prayer of plaintiff insurance company to declare null and void its liability insurance policy issued to defendant, Lee H. Betton, is denied; and the Court finds said policy to be in full force and effect on' July 1,1955, at the time of the collision with the two other automobiles by the defendant Betton, while driving his automobile covered by said policy, and that the plaintiff company is bound to defend all civil actions against the defendant Betton, arising out of said collisions.

Entry accordingly with exceptions by counsel for the plaintiff insurance company.


author: By HORNBECK, J.

text:
    STATE ex rel. MASTERSON, Plaintiffs-Appellants, v. OHIO STATE RACING COMMISSION et, Defendants-Appellees.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5531.
    Decided April 26, 1957.
    George J. McMonagle, William E. Mahon, Michael T. Gavin, Cleveland, for plaintiffs-appellants.
    William Saxbe, Atty. Geni., Hugh A. Sherer, Chief Counsel, James F. DeLeone, Asst. Atty. Geni., Columbus, for defendants-appellees.
    (HORNBECK, J, of the Second District, sitting by designation in the Tenth District.)
   OPINION

By HORNBECK, J.

This is an appeal from an order of the Common Pleas Court sustaining a motion of defendants-appellees to strike a petition from the flies and dismissing the petition.

Three errors are assigned:

1. The Court erred in sustaining the demurrer of the appellees to the petition of the plaintiffs.

2. The Court erred in granting the motion of the appellees to strike the amended petition of the plaintiffs from the files.

3. The orders of the Court with respect to items No. 1 and 2 are contrary to the law.

Without comment we hold against the first error assigned because the only demurrer sustained to a petition was to the first petition filed which was sustained, but plaintiffs’ cause of action was not dismissed but leave was granted to file an amended petition. After the demurrer was sustained, Masterson, as plaintiff, filed another petition which was designated as an amended petition.

For full appreciation of the action of the trial judge to which the appeal is directed, it will be necessary to set forth chronologically the developments in the cause.

On January 27, 1956, a petition for injunction was filed on the relation of Charles P. Masterson, Sophie Borek, Georgeann Borek, Gerald Borek and Patrick Borek, minors of tender years, by Sophie Borek, their mother and next friend, all as citizens of the State of Ohio, against the Ohio State Racing Commission of the State of Ohio and the members thereof. The broad purpose of the petition was to prevent the respondents permitting horse racing for a stake, purse or award at which pari-mutuel or certificate type of wagering was authorized or permitted, upon the claim that the operation of such pari-mutuel system of betting was a lottery within contemplation of Artivle XV. Section 6, Ohio Constitution and prohibited thereby.

The eighth paragraph of the petition avers that all of the plaintiffs are citizens of the State of Ohio and will suffer irreparable damage for which they have no adequate remedy at law by being exposed to the continual open and notorious operation of lotteries, under the supervision and licensing by the defendants; that the relator, Sophie Borek, is the former wife of John Eugene Borek, and George Ann Borek, Gerald Borek and Patrick Borek are minor children of said John Eugene Borek and Sophie Borek; that because of the loss by said John Eugene Borek, in wagering at horse race tracks to which the respondent commission has heretofore issued permits and supervised horse-racing for a stake, purse or award, with pari-mutuel type of wagering, of his wages and earnings needed for the support and maintenance of his family, they became destitute, in need and the said children were placed under the control of the Juvenile Court of Cuyahoga County, Ohio, and it is to eliminate the possibility of like occurrences in the Borek family and other families of Ohio citizens that the within action is filed.

Thus, it will be noted that status of the Boreks was different from that of Masterson in the particulars set out.

On February 16, 1956, a demurrer was filed to the petition “for the reason that it appears on the face of the petition that plaintiffs have not legal capacity to sue.” On February 27, 1956, a judge of the Common Pleas Court filed a written decision, the first paragraph of which reads:

“Defendants’ demurrer to the petition of plaintiffs is sustained because of a misjoinder of parties plaintiff.”

Thereafter the Court discusses in a general way the underlying purpose of plaintiff, Masterson, in filing three suits against the defendants in this case. No specific' discussion is had with respect to any of these cases. The last paragraph of this opinion reads:

“The reasoning and rulings of the former cases will be adhered to in holding that the plaintiff Masterson, either as a taxpayer or a citizen has failed to show that he is a proper plaintiff to appeal to this Court for the purpose indicated.”

Pursuant to this decision an entry was prepared and journalized of date March 9, 1956. In the meantime, and before this entry was spread upon the record, plaintiffs indicated the purpose to reject the journal entry for two reasons, one, there is now pending before the Court a motion for reconsideration of said demurrer; two, if the motion of the plaintiffs is not granted, plaintiffs will elect to plead further in this matter.

The entry sustaining the demurrer reads:

“This cause being heard on the demurrer to petition, the Court, on consideration thereof, sustains the same because of a misjoinder of parties plaintiff. Plaintiffs are given leave to file an amended petition within this rule.

“To this order and ruling of the court plaintiffs except.”

This entry was signed by the trial judge and all of counsel for the parties. In probability, it was prepared by counsel for the defendants.

Thereafter, on March 17, 1956, pursuant to the ruling on the demurrer, Charles P. Masterson, only, as a citizen, filed his amended petition for injunction and relief. The averments thereof were substantially the same as in the first petition except the omission of the names and status of the other parties-plaintiffs in the first petition. On this amended petition, summons and process were issued and served. Thereafter, on March 29, 1956, defendants moved the Court' for an order “striking the amended petition from the files for the reason that the same is not responsive to the prior order of the Court in sustaining the special demurrer to the petition.”

This motion to strike came on to another member of the Common Pleas Court, who, after consideration, prepared a written opinion with which we have been favored. In this opinion, the judge reviews the proceedings in this case, from their inception and discusses the other cases in the various courts, Common Pleas, Court of Appeals, and Supreme, wherein Masterson was the party-plaintiff and wherein the action of the Courts was invoked in different forms of remedy. The judge refers to some of the language in the opinion sustaining the demurrer and as a conclusion, held that the entry journalizing his decision should recite that the original demurrer was sustained upon the ground that it appeared on the face of the original petition that plaintiffs have not legal capacity to sue.

•The journal entry upon this decision recites that “This cause came on to be heard on defendants’ motion to strike the amended petition from the files, and the Court upon consideration thereof finds (1) that the court, upon consideration of defendants’ special demurrer to the original petition, sustained such demurrer upon the ground that it appeared on the face of the original petition that plaintiffs have not legal capacity to sue, (2) that the amended petition is not responsive to the court’s ruling on such special demurrer, and (3) that such amended petition should accordingly be stricken from the files.” The entry on the ruling on the motion recites that the amended petition should be stricken from the files and that the plaintiff electing to plead no further, it is adjudged and decreed that the defendants go hence without day, and recover from plaintiffs their costs herein expended.

It is from this order striking plaintiffs’ amended petition from the files and dismissing his cause of action that the appeal is prosecuted.

At the outset it must be noted that the action upon the motion to strike was not upon demurrer. It invoked the consideration and decision of the trial judge upon one question, only, namely, did the filing of the amended petition wherein Masterson only was named as party plaintiff, disregard the ruling on the demurrer. It invoked consideration of no other infirmity in the pleading. The trial judge recognized the limitation on the question presented and did not attempt to exercise original judgment upon a demurrer and rested his decision and order strictly upon an interpretation of the order of the judge who passed on the demurrer.

It is academic to point out that the statutory grounds of demurrer §2309.08 (C) R. C. “The plaintiff has not legal capacity to sue” and (E) “There is a misjoinder of parties-plaintiff or defendant” are not identical. It is also necessary under §2309.09 R. C., that the ground of demurrer be specific.

The entry on the demurrer holding that the parties-plaintiffs were misjoined did not determine that either of them had pot legal capacity to sue. The only manner in which plaintiffs could conform to the court’s ruling on the demurrer was to amend by titling Masterson alone or the Boreks alone as party-plaintiff. This was done. Counsel for plaintiff Masterson in his memo on the motion to strike directed the attention of the Court to the journal entry reciting that the demurrer was sustained on the ground of misjoinder of parties-plaintiffs.

The premise upon which the amended petition was stricken from the files is not supported by the record. An entry has been defined as:

“A statement of a conclusion reached by the Court, or an act done during the progress of a cause, which is spread of record, and designed to furnish incontestable evidence of the matter stated.” 30 C. J. S. 268.

Courts speak only through their records.

“Such records import absolute verity unless or until they are reversed or set aside, are conclusive as to those matters to which such records relate, and cannot be contradicted within the jurisdiction of the court nor are they subject to collateral attack.” 21 C. J. S. 442, 443.

In the late case of Andrews, et al. v. Board of Liquor Control, 164 Oh St 275, the court exercised wide latitude in considering an opinion of the Court of Appeals in determining full meaning and effect of the language of the judgment under review. At page 281, of the opinion, Judge Stewart said:

“It is an invariable rule that a court speaks only through its journal, and where its opinion and its journal are in conflict, the latter controls and the former must be disregarded. Will v. McCoy, 135 Oh St 241, 20 N. E. (2d) 371. However, where it is essential in the interest of justice for a reviewing court to ascertain the grounds upon which a judgment of a lower court is founded, resort may be had to the opinion of the lower court to ascertain those grounds, where there is no conflict between the opinion and the journal.”

Manifestly, here there is no conflict between the opinion and the entry journalizing the ruling on the demurrer upon the substantive question presented for decision. Resort to the opinion to contradict the express terms and language of the entry was without authority and without support.

We hold that the second assignment of error is well made.

These parties have been before several courts in different cases in all of which plaintiff was seeking determination on the merits of the cause upon which he predicated his various petitions, viz., that pari-mutuel betting on horse racing in Ohio is unconstitutional. All of them have been decided upon questions of procedure and in none of them has there been any adjudication upon the merits of the basic contention of the plaintiff.

We, therefore, feel that it would be a mistake for this Court to launch into an extended consideration of the question which both parties seek to have determined here in view of the error which we find to have been committed in the trial court in granting the motion to strike.

The order of the trial court will be reversed and the cause remanded for further proceedings according to law.

PETREE, PJ, MILLER, J, concur.


author: By KEEFE, J.

text:
    CINCINNATI (City), Plaintiff, v. FAIG, Defendant.
    Cincinnati Municipal Court, Criminal Division.
    No. 93676.
    Decided September 11, 1957.
    Henry M. Bruestle, City Solicitor, James W. Farrell, Jr., Deputy City Solicitor, Ralph E. Cors, Asst. City Pros., for City of Cincinnati.
    Carl L. Meier, for defendant.
   OPINION

By KEEFE, J.

The defendant herein is charged by affidavit filed July 22, 1957, with failure to file a tax return with the Tax Commissioner of the City of Cincinnati in violation of Section IV of Ordinance No. 67 — 1955 entitled “City of Cincinnati Earned Income Tax Ordinance.” This section provides:

“RETURN AND PAYMENT OF TAX. Each taxpayer who engages in business or whose salary, wages, commissions, or other compensation are subject to the tax imposed by this ordinance shall, whether or not a tax be due thereon, make and file a return on or before April 30, 1956, with the Tax Commissioner, on a form prescribed by and obtainable from the Tax Commissioner, setting forth the aggregate amount of salaries, wages, commissions, and other compensation earned by him, and gross income from such business less allowable expenses incurred in the acquisition of such gross income during the tax period and subject to said tax, together with such other pertinent information as the Tax Commissioner may require; provided, however, fiscal year taxpayers shall file a return for each of their fiscal years part of which fall within the tax period within one hundred and twenty (120) days after the close of each fiscal year . . .”

(This is not the entire section, but the portion quoted is adequate for the purposes of this opinion.)

The warrant was served upon the defendant at his place of employment, The Robert A. Taft Sanitary Engineering Center, 4676 Columbia Parkway, Cincinnati. The defendant resides in Groesbeck, Ohio, in Hamilton County, outside the limits of Cincinnati, and did so in 1955. He has been employed by the Federal Government for more than ten years. His base of operations has been the Engineering Center in Cincinnati and he is paid there although he is frequently required to perform duties outside Cincinnati and Hamilton County.

The case came on for trial by the Court sitting as both judge and jury, no jury trial having been demanded. Defendant was entitled to a jury had it been requested. Before trial, the defendant, through counsel, demurred to the affidavit claiming the facts stated in it do not constitute an offense punishable by law. After oral argument, defendant asked that all his rights under the demurrer be conserved but that the case proceed to trial. Defendant pleaded not guilty and trial was had. Briefs have been filed. Defendant has at all times admitted his failure to file a 1955 tax return.

The Taft Engineering Center is within the corporate limits of Cincinnati. Judicial notice is taken of that fact and that the structure is completely surrounded by the City of Cincinnati. There has been no attempt by the defendant to show that the land upon which the Engineering Center is located was ever ceded by the State of Ohio to the Federal Government. It is doubted if such a showing could convincingly be made, but regardless there is no proof of cession.

These questions are before us:

1. Is the provision of the 1955 Cincinnati Earned Income Tax Ordinance which permits prosecution for violation of the ordinance to be brought within ten years after the violation constitutional?

2. Is the imposition of the Earned Income Tax Ordinance upon a non-resident of the City who is employed by the Federal Government under the circumstances existing for the defendant herein constitutional?

The questions are considered in their numerical order. The defendant’s position is that the action herein should have been commenced within one year after April 30, 1956, pursuant to §1905.33 R. C. Actually the affidavit charging defendant was filed about ninety days longer than one year. The Tax Ordinance itself provides for prosecution within ten (10) years after the occurrence of the violation. In support of his contention, defendant cites the case of City of Toledo v. Schudel, 90 Oh Ap 55. The state statute was held to control in that case because there was no limitation by ordinance. Furthermore, the Toledo Charter itself provided that the statute controlled when the Charter was silent, as was the fact, and there was no ordinance provision. The Court in the Schudel case definitely was not faced with the same set of facts present here.

The cases of City of Youngstown v. Evans, 121 Oh St 342 and Stary et al v. City of Brooklyn et al, 162 Oh St 120 provide adequate bases for our determination that the provision of the Cincinnati Ordinance allowing ten (10) years for prosecution is valid, enforceable and in no way unconstitutional. These cases both are authority for the proposition that municipal ordinances may provide greater penalties for crimes than authorized by state statute. If municipalities may provide greater penalties, logic certainly requires that they may provide for longer periods of time within which misdemeanors may be prosecuted so long as the municipal legislation does not transcend the limits of reasonableness. The ten year statute of limitations in the Cincinnati Ordinance is neither unreasonable nor arbitrary. The provision is concerned with local self government and home rule and in no way conflicts with the general laws of the State of Ohio.

It is contended that imposition of the Cincinnati Earned Income Tax upon this defendant is unconstitutional and to establish this position great reliance is placed upon a decision of the United States Supreme Court in the case of Wisconsin v. J. C. Penney Co., 311 U. S. 435 (1940). This Court cannot subscribe to the contention that the decision in the Penney case is a compelling authority for holding the Cincinnati tax invalid as to the defendant herein. Quoting from the language of our own Supreme Court of Ohio in Angell v. Toledo, 153 Oh St 179, the majority opinion stated that the Penney Co. case stands for the proposition

“that the test of whether a tax law violates the due process clause is whether it bears some fiscal relation to the protections, opportunities, and benefits given by the State, or, in other words, whether the state has given anything for which it can ask a return.” (Emphasis mine.)

Of course, the Federal Government itself in its operation of the Engineering Center in Cincinnati is immune, as it always is, from municipal taxation. However, those living in, working at, or otherwise present on the property of the Center do not in their individual capacities enjoy the same immunity as the Federal Government. Furthermore, two enactments by the Congress of the United States create an atmosphere of taxability for such federal employees as the defendant herein. These are the Public Salary Tax Act, 5 U. S. Code Section 84a, providing that a state or municipality can tax income earned and other compensation from the Federal Government, and the Buck Act, 4 U. S. Code Sections 105-110, allowing states and municipalities to tax those residing or working in areas over which the Federal Government has exclusive jurisdiction in the same manner as if the property involved were not a Federal area.

As has been already pointed out, there is no proof that the land on which the Engineering Center is located has ever been ceded to the Federal Government. However, assuming that it had been so ceded by Ohio to the Federal Government and the Federal Government has exclusive jurisdiction over it, nevertheless in the light of the two Congressional enactments named, and the reasoning of the Ohio Supreme Court in the Angelí Case and the decision of the United States Supreme Court in Howard v. Commissioners of Sinking Fund of City of Louisville, 344 U. S. 624, decided in 1953, the Income Tax Ordinance of Cincinnati with which we are concerned in this prosecution is completely valid with reference to this defendant.

The Angelí case stands clearly for the proposition that a municipal income tax is a valid enactment in Ohio even as to non-residents of the municipality. The defendant in this case is not a resident of Cincinnati. With reference to the status of a Federal Area wholly within a municipality the United States Supreme Court in the Howard case says:

“The City (Louisville) can levy such a tax (income tax) within its boundaries outside the federal area. By virtue of the Buck Act, the tax can be levied and collected within the federal area, just as if it were not a federal area. Since the area is within the boundaries of the City of Louisville, and this tax is an income tax within the meaning of the Buck Act, the tax is valid.” (Emphasis mine.)

A final word about the benefits derived by defendant from the City in exchange for his payment of the tax. At the trial it was developed that the City does not inspect the buildings at the Engineering Center, does not inspect the cafeteria maintained and operated in the Center, and does not collect waste from the Center. But it was shown that the defendant travels to and from his place of employment at the Center on the streets and highways maintained, patrolled and protected by the City of Cincinnati. There was no evidence concerning the existence of any separate police authority at the Center thus making it reasonable and logical to assume that in the event of the need for police services they would be provided by the City. Neither was there evidence of a separate fire department at the Center, but it is judicially noticed by this Court that in the event of a consequential fire or explosion at the Center the services of the Cincinnati Fire Department would be required not only to provide protection for the Center and its occupants but to obviate injury and damage to persons and residents adjacent to the Center.

In 1943 the Supreme Court of Pennsylvania spoke words of logic and conviction in Kiker v. City of Philadelphia et al, 346 Pa. 624, 31 A 2d 289, a case containing facts almost identical to those present here. Involved was a Philadelphia income tax as it applied to a New Jersey resident employed by the Federal Government at the Philadelphia Navy Yard on League Island, a tract of land in Philadelphia. Plaintiff therein sought to restrain the enforcement of the tax ordinance of the City of Philadelphia. We adopt the following language of that court as part of this opinion:

“Plaintiff (the non-resident taxpayer) may at “all times use the streets, bridges and other facilities of the City, and also has the benefit of protection of its police and fire departments when engaging in business or pleasure in that municipality, as well as many other advantages. It is common knowledge that the City of Philadelphia cuts all ice, and keeps the Delaware River navigable from the northern limits of the City to Chester, where in the winter months navigation would otherwise be closed, making possible to plaintiff the transportation he uses to go to and return from League Island to his home in New Jersey. This is decidedly a benefit to him .... Therefore we are convinced that the tax does not violate the Fourteenth Amendment of the Federal Constitution that all the benefits of the facilities of Philadephia are legally available to plaintiff, and he has no just reason to complain of the tax.” The Earned Income Tax Ordinance is a valid enactment as it refers to this defendant who is found guilty as charged.


author: Per CURIAM:

text:
    BOAZ, a Minor, etc., Plaintiff-Appellee, v. OSTRANDER, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24231.
    Decided February 14, 1958.
    M. Alfred Roemisch, for plaintiff-appellee.
    Merkel, Campbell, Dill & Zetzer, for defendant-appellant.
   OPINION

Per CURIAM:

In this action of tort for personal injuries here appealed on questions of law, the jury returned a verdict in favor of the plaintiff, a minor child aged three years, in the sum of $10,000, upon which judgment was rendered.

The injuries arose from an accident which occurred on March 26, 1954, on the public sidewalk in front of premises known as 319 East 323rd Street in the Village of Willowick. The defendant Ostrander was at that time making an excavation for a residence to be built on the premises, the evidence showing that he was the excavating contractor under a general contractor. The evidence shows that the child was injured when a large mass of dirt or clay became dislodged from a truck which was operated by the driver, Archie Lee Woodie, Jr., who was removing dirt and clay from the premises over the sidewalk upon which planks had been placed. The rear wheels of the truck became mired and imbedded in the ground adjacent to the sidewalk and the driver, while working the truck back and forth over the sidewalk in order to free the rear wheels, caused a part of the load to shift and fall with resulting injuries to the child. These facts are not seriously challenged.

Originally there were two defendants, Archie Lee Woodie, Sr., and the defendant Ostrander. At the close of all the evidence, the defendant, Archie Lee Woodie, Sr., moved for a directed verdict on the ground that he was not responsible for the conduct of the driver because the driver of the truck (Archie Lee Woodie, Jr.,) was then under the direction and instruction of the defendant Ostrander. The court granted this motion on the ground that the “loaned servant doctrine” applied. Concerning this proposition, the defendant Ostrander testified that he rented the truck from Archie Lee Woodie, Sr., with the driver supplied, at a stipulated sum per hour and that he, Ostrander, or his employee, Mill-house, directed and supervised the work of the driver and that Archie Lee Woodie, Sr., was not present during operations there being conducted. This testimony is corroborated by other evidence in the record.

The salient facts with respect to the injuries are that after the truck was loaded at the site of the excavation, Archie Lee Woodie, Jr., was about to mount the truck into his cab when he noticed the minor child standing two or three feet from the truck. He walked the child away from the truck and then got into his truck and moved it to a position where the front wheels were over the sidewalk when the rear wheels became mired, and while rocking the truck, the child was injured by the fall of the dirt and clay upon him.

The record shows that Ostrander saw the child for the first time about five minutes before the truck came back to the premises to be loaded. At that time he moved the child to a stone stoop or porch of the house at 323 East 323rd Street, which was not his home. Thereafter, Ostrander paid no further attention to the child but walked to the north side of the excavation and was engaged in conversation with a neighbor when the accident happened.

The appellant sets forth the following assignments of error:

“1. The court erred in overruling defendant-appellant’s separate motions to strike specifications 1, 3, 4 and 5 from the Second Amended Petition and in submitting these issues to the jury.

“2. The court erred in submitting extraneous issues to the jury and in giving instructions thereon.

“3. The court erred in his generai charge to the jury by misstating the law as to negligence and proximate cause.

“4. The special verdict prepared by the court and submitted by him to the jury does not meet statutory requirements.

“5. The court failed to comply with defendant-appellant’s timely request for special findings.

“6. The court failed to differentiate between a special verdict and special findings and to properly instruct the jury as to each.

“7. The judgment is not in conformity with the special verdict.

“8. The special verdict is inconsistent and contains conflicting findings.

“9. Other errors apparent on the face of the record, to the manifest prejudice of defendant-appellant.”

At the conclusion of the testimony, at the specific request of the defendant, the court submitted to the jury a special verdict in conformity with the provisions of §2315.15 R. C., as amended October 4, 1955. A total of forty-one questions were propounded and each of such questions were answered by the jury. Inasmuch as the petition in this cause had been filed May 26, 1954, the court committed error in complying with defendant’s request because the Revised Code Section, as amended, was not applicable to cases pending prior to its effective date. Woodward v. Eberly, 167 Oh St 177. While this was error, the appellant cannot now on this appeal take advantage of an error which he himself induced. See 3 O. Jur. 2d, Sec. 693, page 641, and authoritative cases cited in support of the text. Thus the assignments of error four, five and six, which relate to special verdicts and special findings, cannot be sustained.

As to plaintiff’s first specification of negligence to the effect that defendant overloaded the dump truck, the jury found in favor of the defendant when it answered question number six of the special findings in the negative, and of this he cannot complain.

In relation to the plaintiff’s second specification of negligence to the effect that the defendant aided the driver of the dump truck by placing planks under its rear wheels, the jury also found in favor of the defendant by its negative answer to question number eight of the special findings and of this he cannot complain.

As to the plaintiff’s third specification of negligence, the jury found, according to its answer to special findings numbers fifteen and sixteen, that defendant failed to keep a lookout for other users of the sidewalk and more particularly for this minor plaintiff, and in so doing, that defendant’s negligence was a proximate cause of the injuries to plaintiff.

The plaintiff’s fourth specification of negligence that the defendant failed to warn or signal the minor plaintiff that the load would shift by virtue of his operation of the truck and would fall upon the minor plaintiff was settled in favor of the defendant as shown by the jury’s special findings numbers seventeen and eighteen.

As to specification of negligence number five, that the defendant failed to take the necessary precautions to prevent said load from shifting and from falling upon other users of the sidewalk and more particularly the minor plaintiff, the jury found for the plaintiff as shown by the special findings numbers nineteen and twenty.

The appellant complains that the special verdict is inconsistent and contains conflicting findings and this contention relates to the answers to questions numbers twenty-three and twenty-four. The first part of the answer to question number twenty-four is not inconsistent with the verdict and is inconsistent only in part with the answer to question number six, supra, wherein it is stated in answer to said question “failure to prevent truck overloading.” Of course, if the truck was not overloaded, defendant could not be guilty of failing to prevent its overloading but the second part of the answer, namely, “failure to look out for plaintiff after being aware of his presence” is consistent with other findings above specified in which the defendant is held responsible for plaintiff’s injuries. It is our view that the first part of the answer to question number twenty-four is balanced by the answer of the jury favorable to the defendant in its special finding number six in that he did not allow the truck to be overloaded. Therefore, this does not constitute error prejudicial to the defendant.

Considering the entire record and all the circumstances, the defendant cannot avoid liability for the negligence of the loaned servant who was under his direction and control. He is also subject to liability for his own negligence in failing to keep a lookout for plaintiff when he knew the child was on the premises. The plaintiff, being only three years of age, was in danger of injury from the operations of defendant. This is especially true where defendant’s operation required the use of the public sidewalk where defendant knew the public was likely to pass. At least' these were jury questions. The law is well settled that where the danger to the public is likely to attend the doing of work at a place where the public will lawfully pass, a question of fact is presented which should be submitted to the jury under all proper instruction. See Warden v. Pennsylvania Rd. Co., 123 Oh St 304, 175 N. E. 207.

In relation to the duty to exercise care toward minor children, see Ziehm v. Vale, 98 Oh St 306, 120 N. E. 702, where the court held:

“Where the owner of an automobile, upon returning to his car, finds an infant four and one-half years of age thereon, and twice drives the infant from the car, the owner is not thereby absolved from further duty towards such infant. Under such circumstances, when the child still remains in close proximity to the car, the driver is required to exercise reasonable care to avoid injury to the child.”

Here the record clearly shows that both the defendant and his loaned servant were aware of the presence of the child and were required to exercise reasonable care to avoid injury to him.

This case is not without certain complexities which were brought on by the insistence of the defendant for a special verdict under the code as amended October 4, 1955. As we have stated, the defendant cannot complain because he induced the error of having the court submit such a special verdict. The cases cited by defendant in his brief on this point are cases having application only to the statute prior to the amendment of October 1955.

Upon review of the whole case, we certify that the allegations of plaintiff’s petition are sufficient to charge defendant with the negligent acts of his agents and employees, including the negligent acts of the driver of the dump truck as the loaned servant of defendant. We find no error in the charge of the court to the jury and no other errors prejudicial to the rights of defendant. Further we certify that substantial justice has been done the party complaining under the provisions of §2309.59 R. C.

For the foregoing reasons, the judgment is affirmed.

Exceptions noted.

SKEEL, PJ, HURD and KOVACHY, JJ, concur.


author: By THE COURT.

text:
    MANGOLD, d. b. a. CLOVER CLUB, Appellant-Appellee, v. BOARD OF LIQUOR CONTROL, Appellee-Appellant.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5617.
    Decided April 8, 1957.
    S. Myron Gurevitz, Columbus, for appellant-appellee.
    William Saxbe, Atty. Geni., S. Noel Melvin, Asst. Atty. Geni., Columbus, for appellee-appellant.
   OPINION

By THE COURT.

Submitted upon the motion of the appellee seeking an order dismissing the appeal of the Board of Liquor Control, appellant herein, for the reason that the court does not have jurisdiction to hear an appeal filed by an administrative agency pursuant to §119.12 R. C., where the question presented is limited to a review of the correctness of the judgment of the Court of Common Pleas holding that the order of the administrative agency is not supported by reliable, probative and substantial evidence. It will be noted that the appeal does not relate to the constitutionality, construction or interpretation of the statute or to the rules and regulations of the Board but is directed only to the correctness of the judgment. This court does not have jurisdiction to entertain such an appeal. See Katz v. Board of Liquor Control, 166 Oh St 229.

The motion will be sustained.

PETREE, PJ, MILLER, J, concur.

BRYANT, J, not participating.


author: By KOHNEN, J.:

text:
    COMBS, Ex parte, In re: Petitioner.
    Common Pleas Court, Hamilton County.
    No. A-161824.
    Decided February 17, 1958.
    Hoover, Beall, Whitman & Eichel, for petitioner.
    Robert Taft, for respondent.
    Robert W. Hilton, for adoptive parents.
   OPINION

By KOHNEN, J.:

This is a proceeding in habeas corpus brought by the petitioner, Frank Roger Combs, for the custody of his son, Donald Combs, a minor now twelve months of age. The petitioner says that he is unlawfully deprived of the custody of his son by The Children’s Home, whose institution is located at 5054 Madison Road, Cincinnati, Ohio, and that the said child is temporarily residing in the residence of persons whose true names are unknown to the petitioner and that the infant had been placed in this residence by the said Children’s Home.

The respondent herein, The Children’s Home of Cincinnati, Ohio, admits that it has the said Donald Sweeney Combs, a minor, in its custody and that its custody is justified and lawful.

The facts in this case, all of which are either stipulated or are in no substantial dispute, are as follows:

Donald Sweeney Combs was born on January 4, 1957, at The Children’s Home (Maple Knoll Hospital), Cincinnati, Hamilton County, Ohio; Jean Sweeney, age twenty, the mother of the child was unmarried. On January 9, 1957, Jean Sweeney, as mother and sole parent of Donald Sweeney Combs, surrendered permanent custody of her child, Donald, to the respondent herein by signing and executing a form prescribed by the Division of Social Administration, Department of Public Welfare of Ohio. (Exhibit 2.)

On February 6, 1957, the parents of Jean Sweeney, namely, Joe Sweeney, father, and Elizabeth Sweeney, mother, signed their written consent to The Children’s Home of Cincinnati, Ohio, to place the infant, Donald Sweeney, for adoption. (Exhibit 3.)

On February 8, 1957, The Children’s Home of Cincinnati, Inc., accepted the permanent surrender and the child was placed in an adoptive home on February 12, 1957.

It is also stipulated that The Children’s Home of Cincinnati, Ohio, herein, is an institution certified by the Division of Social Administration, Ohio Department of Welfare, under §5103.3 R. C., to accept temporary and permanent surrenders of custody.

There is no evidence of fraud or misrepresentation concerning these proceedings.

It appears from the evidence that the petitioner, Frank Rogers Comb, age twenty-two, entered into the United States Marine Corps on February 15, 1954, and was released on February 15, 1957, with a rating of Sergeant and that he started keeping company with Jean Sweeney while he was on leave from the Marine Corps, after he came home from overseas service.

Jean Sweeney corresponded regularly with the petitioner, Frank Roger Combs, while he was in the service and that after the petitioner was informed that Jean Sweeney was going to have a baby there was a break in their relations and some tension existed between them; that this break in their relationship and tension continued to exist until the petitioner came back from the service shortly after the 15th of February.

The evidence further discloses that Jean Combs was a resident of Simpson, Kentucky, which is about one hundred miles southeast of Lexington, Kentucky, and that Frank Rogers Combs lived within two miles of the same area; that on March 9, 1957, he married Jean Sweeney, the mother of Dofiald, at Jack, Breathitt County, Kentucky, the county seat 'in which the parties lived.

At the time of the hearing of this matter Frank and Jean Combs lived at 112 Bwing Street, Dayton, Ohio, where he is employed by the McCall Corporation as a packer, receiving a salary of $100.00 per week.

On November 29, 1957, the Chief of Vital Statistics Division certified a photostatic copy of the original Certificate of Birth of Donald Sweeney Combs.

Counsel for the undisclosed adoptive parents appeared before the Court for oral argument and submitted a memorandum, along with other interested parties (amicus curiae).

A secondary issue is presented by the petitioner concerning “the welfare of the child and the fitness of those seeking its custody.”

In re Hock, 55 Abs pages 79 and 80, referred to in the petitioner’s reply memorandum, fully and correctly states the importance of the rights of the natural parents and this Court concurs with the legal and human concept that:

“The natural parents of a child have a permanent right to its custody and care * * *.” and that:

“A human life is the subject of consideration here, not merely the temporary custody of a baby.”

However, the question concerning the fitness and suitability of either the natural or adoptive parents is not the controlling issue to be decided here. The issue to be determined by this Court is the right of a natural father to obtain custody of his child when the child’s unmarried mother had surrendered permanent custody of the child to a certified institution in compliance with §5103.15 R. C., where the mother and father marry subsequent to the execution of the permanent surrender of custody.

It is the contention of the petitioner concerning this question that the marriage on March 9, 1957, between Frank Combs and Jean Sweeney, in addition to making their child, Donald, legitimate, also made the Permanent Surrender of Child Agreement executed January 9, 1957, ineffective in that said agreement was not signed by the child’s father, the petitioner herein.

Memorandum and reply memorandum of petitioner, memorandum of the respondent, and memoranda amicus curiae (four in number) argue this question and the rights of natural parents, etc., at great length. So far as counsel or the Court have been able to determine this question of surrender of child by a sole parent appears to be one of first impression.

As the Court sees it the legitimacy of the child, although established by law, is not to be determined here.

All the decisions by the Courts over many years concerning this subject decide the question on the grounds of what is for the best interests of the child, fitness and suitability of those seeking custody and question of descent and distribution.

In re Swentosky, 25 Abs 601; 10 O. O. 150; In re Frinzl, 152 Oh St 164; French v. Catholic League, et al, 24 O. O. 176.

In Davis v. Sears, 35 S. W. (2d) 99 (Texas Commission of Appeals), the best interests of the child was the determining factor concerning its custody. However, the Court does hold that:

"The mother, at the time, had exclusive right to relinquish authority over the child, though child was afterwards legitimatized by marriage of parents.”

The Kozak case, 164 Oh St 335, in a habeas corpus proceedings, covers this situation but is distinguishable, holding that a permanent surrender by both parents is irrevocable and

* * where permanent surrender has been made in compliance with the latter (§5103.15 R. C.) the institution to which the surrender is made is permanently in loco parentis so far as the minor children and their parents are concerned.”

A number of sections of the Ohio Revised Code are referred to. Sec. 2105.18 R. C., provides:

“When a man has children by a woman and afterwards intermarries with her, such issue * * * will be legitimate.”

Sec. 3705.15 R. C., provides for a “new birth certificate when illegitimate child becomes legitimate.”

Sec. 2151.28 R. C., refers to proceedings in the Juvenile Court and §3107.06 R. C., covers proceedings for adoption in the Probate Court.

The interpretation of §5103.15 R. C., settles the issue in this case. This section reads as follows:

“The parents, guardian, or other persons having the custody of a child, may enter into an agreement with any association or institution of this state established for the purposes of aiding, caring for, or placing children in homes, which has been approved and certified by the division of social administration, whereby such child is placed in the temporary custody of such institution or association; or such parent, guardian, or other person may make an agreement surrendering such child into the permanent custody of such association or institution, to be taken and cared for by such association or institution, or placed in a family home.

“Such agreements, provided for in this section, shall be in writing, on forms prescribed and furnished by the division, and may contain any proper and legal stipulations for proper care of the child, and may authorize the association or institution when such agreements are for permanent care and custody to appear in any proceeding, for the legal adoption of such child, and consent to its adoption, as provided in §3107.06 R. C. The adoption order of the judge made upon such consent shall be binding upon the . child and its parents, guardian, or other person, as if such persons were personally in court and consented thereto, whether made party to the proceeding or not.”

On January 9, 1957, the then Jean Sweeney, pursuant to §5103.15 R. C., performed a legal act when she signed and executed the permanent surrender of custody of her son Donald.

On March 9, 1957, Jean Sweeney married Frank R. Combs, the petitioner herein, the father of Donald Combs. This marriage made Donald Sweeney Combs a legitimate child as of the date of his birth January 4, 1957, pursuant to the Revised Code of Ohio.

In construing that part of §5103.15 R. C., which reads as follows:

“Such parent, guardian, or other person may make an agreement surrendering such child into the permanent custody of such association or institution, * * (Emphasis added.)

the word “such parent” apply to the mother of Donald Combs and place her in the category of “such parent” as distinguished between the first part of this section of the Revised Code which refers to placing a child in the “temporary” custody of such association or institution.

When Jean Sweeney came to Frank Combs in marriage on March 9, 1957, she had by her previous action legally disposed of her right to custody of the child and her act terminated the legal relationship between the natural parents and the child. Although the Court concurs with the sincere and human sentiments concerning the right of natural parents to the custody of their children, the Court finds that Frank R. Combs, the petitioner, has no legal right to disaffirm or revoke the written agreement of permanent surrender of custody of child executed on January 9, 1957.

The writ is denied.

An entry may be presented accordingly.