author: Per CURIAM. By PHILLIPS, PJ.

text:
    STATE, Plaintiff-Appellee, v. KEICH, Defendant-Appellant. STATE, Plaintiff-Appellee, v. STEINBERG, Defendant-Appellant.
    Ohio Appeals, Seventh District, Mahoning County.
    Nos. 3849, 3850.
    Decided April 6, 1956.
    Felix S. Mike, Director of Law, Frank Battisti, Joseph L. Heffernan, Asst. Directors of Law, Youngstown, for plaintiff-appellee.
    John B. Cunningham, Youngstown, for defendants-appellants.
   OPINION

Per CURIAM.

The defendant’s business is not a work of necessity within the meaning of §3773.24 R. C. This section of the Code is not discriminatory because it applies to all alike who are engaged in like business. If there was any discrimination:—

“* * * it was a discrimination in the administration of the law and not in the law itself, and manifestly had no bearing on the respondents guilt or innocence. One offender cannot excuse his conduct by showing that some one else equally guilty has not been prosecuted.” 101 Vermont 300 at page 307.

We find no merit in the claim that defendants were entitled to a jury trial since imprisonment is not a part of the penalty for a first offense.

The decision of the lower court is not contrary to law nor is it against the manifest weight of the evidence.

The judgment of the Municipal Court of Youngstown finding the defendant guilty of violating said Section of the Code is affirmed.

GRIFFITH and NICHOLS, JJ, concur.

PHILLIPS, PJ, concurs in judgment.

OPINION

By PHILLIPS, PJ.

In the Municipal Court of Youngstown defendants, Jack Steinberg, who operates a store known as the Giant Bargain Center at 1555 Belmont Avenue, and Emil Keich, who operates the Bargain Port at 25 Jacobs Road, Youngstown, Ohio, were charged with knowingly, intentionally and unlawfully causing a building in Youngstown to be opened on Sunday, July 10, 1955, where, among other things, cooking utensils, plumbing-tools, work clothing, automobile accessories and lawn and garden equipment were sold in violation of §3773.24 R. C., such business allegedly not being work of necessity nor charity.

The trial judge overruled defendants’ demurrer to the affidavits filed on the ground that §3773.24 R. C., was unconstitutional. Defendants then pleaded not guilty and demanded a jury trial, which was denied, and the trials proceeded before a judge of the Municipal Court as cases 3914 and 3915 on the docket of that court respectively.

At the close of the state’s case defendants moved for a dismissal on the ground that the state had failed to prove a prima facie case against them, which motion was overruled.

The trial judge found defendants guilty, entered judgment accordingly, overruled their motions for a new trial and fined each defendant $25.00, the maximum fine for a first offense, the ordinance under which defendants were charged providing for punishment by fine only for a first offense.

Defendants appealed to this court on questions of law from the judgment of the trial court, and by stipulation of counsel their appeals were consolidated in this court for all purposes.

The burden of defendants argument is that §3773.24 R. C., is unconstitutional because it is an arbitrary exercise of the police power, violates the Fourteenth Amendment of the Constitution of the United States and Article I, Sections 2 and 7, Ohio Constitution, and denies equal protection of the law guaranteed thereby, and interferes with the rights of private property unreasonably in violation of Article I, Section 19, Ohio Constitution.

The second paragraph of §3733.24 R. C., provides:—

“This section does not apply to work of necessity or charity, and does not extend to persons who conscientiously observe the seventh day of the week as the sabbath, and abstain thereon from doing things prohibited on Sunday.”

In the case of Stanfeal v. State, 78 Oh St 24, upon which defendants rely heavily to secure a reversal of the judgment of the trial court, Stanfeal, a barber, kept his barber shop closed on Saturday in accordance with his religious belief forbidding work on Saturday and opened his shop for business on Sunday. In that case the Supreme Court held:—

“While the statutes making the business of barbering on Sunday illegal appear, not as amendments to the general laws theretofore existing, but in the form of independent enactments, still they relate to the same subject, to-wit, the observance of Sunday, and are to be regarded as in pari materia with the general laws upon the same subject, * * *. Hence we must consider all the Sunday legislation when we decide the claim of class legislation.”

The court in the case of Robins v. State, 19 Ohio Nisi Prius, (n. s.) 606, after citing the case of Stanfeal v. State, supra, said:—

“This we conclude is a recognition by the Supreme Court that §13047 GC, is in pari materia with §§13044 and 13045 GC, of the Sunday law, where an exception in favor of those persons who conscientiously observe the seventh day of the week as the Sabbath, and abstain thereon from doing things therein prohibited on Sunday, is provided.
“The rule appears well established that statutes in pari materia are to be construed together and as one act.
“ Where there are earlier acts relating to the same subject the survey must extend to them; for all are for the purpose of construction considered as forming one homogeneous and consistent body of law, and each of them may explain and elucidate, every other part of the common system to which it belongs.’ Endlich, Interp, Stat., Section 43.”

There is no evidence that either defendant kept his store closed on Saturday in accordance with his religious belief forbidding work on Saturday and opened his store for business on Sunday for that reason.

There is evidence that in his self designated “department store” that in addition to carrying a complete line of hardware, cooking utensils, plumbing tools, work clothing, automobile accessories and lawn and garden equipment, the Bargain Center likewise carries and offers for sale emergency electric repair parts, patent medicine, cotton, gauze, mineral oil, cough medicine, aspirin and drug sundries, which defendant Steinberg argues are necessaries; emergency automobile repair parts such as sold by gasoline stations and general stores; and that prior to his arrest his store was open for business seven days a week and nqw opens on Sunday from one o’clock to ten o’clock, when some of such articles were sold on July 10, 1955.

Prior to the arrest of its owner the Bargain Port was open for business seven days a week and subsequent thereto on Sundays from one to ten and regular business hours during business days where pipes, valves, copper parts for toilets, electrical equipment, fuses, wire, electrical fixtures, patent medicines, bandages, gauze, cotton, mineral oil, castor oil, aspirin, drug sundries, emergency auto repair parts, automobile batteries and numerous other items, which he argues are necessaries and sold by gasoline stations and drug stores in competition with him in his self designated “department store,” where some of such articles were sold on July 10, 1955.

While there is the quoted evidence that defendants sold articles other than hardware, such as drug sundries, yet defendants Steinberg and Keich catalogued their stores respectively as a “general store” and “department store,” which under normal conditions cannot be designated as business or work of “necessity” within the meaning of §3773.24 R. C. See State v. Haase. 97 Oh Ap 377. In our opinion §3773.24 R. C., is not discriminatory because it applies to all who are engaged in like business.

Now we come to consider defendants claims that other violators within the jurisdiction of the court operating on Sunday in violation of §3773.24 R. C., have not been prosecuted. See State of Ohio, Appellee, v. Haase, Appellant, supra, where it is said in the second syllabus:—

“The fact that the operators of some businesses within the jurisdiction of the court, operating on Sunday in violation of §3773.24 R. C., have not been prosecuted, is no defense in the case of one prosecuted under the provisions of such statute, and the rejection of evidence as to the conduct of others claimed to be in violation of the Sunday closing law is not prejudicial to the rights of the defendant.”

Also see State v. Corologos, et al, 143 Atlantic 284, headnote 13 Criminal Law, that another person equally guilty with defendant has not been prosecuted is no defense as “one offender can not excuse his conduct by showing that some one else equally guilty has not been prosecuted.”

We find no merit in such claims.

Now we come to consider defendants’ contentions that the judgment of conviction must be reversed because the trial judge denied defendants the right to trial by jury.

As applicable Article I, Section 5, Ohio Constitution, provides:—

“The right of trial by jury shall be inviolate, except that, in civil cases, laws may be passed to authorize the rendering of a verdict by the concurrence' of not less than three-fourths of the jury.”
“The Constitution does not guarantee a trial by jury in every case. It has long been a settled doctrine that, where the penalty imposed by a criminal statute is merely a fine, the right of trial by jury as guaranteed by the Constitution does not exist. * * 12 O. Jur., Section 106, Page 139.
“The Constitution does not guarantee that every case shall be tried by a jury, but confines itself to the declaration that the right to trial by jury shall be inviolate; that is, the right in those cases in which the prerogative existed at common law, or was secured by statute at the time the Constitution was adopted, in 1802.” 24 O. Jur., Section 9, page 140.
“Section 5 of the Ohio Bill of Rights provides that ‘the right of trial by jury shall be inviolate,’ etc. It was not, however, the intention of the framers of that clause of the Bill of Rights to guarantee the right of trial by jury in all controversies.” Belding v. State, 121 Oh St 393 at 396.

Obviously we find no merit to defendants’ contention that the judgment of conviction must be reversed because the trial judge denied defendants the right to trial by jury.

Having found no error prejudicial to the defendants in any of the respects urged the judgment of the trial court in both cases appealed is affirmed.

NICHOLS and GRIFFITH, JJ, concur in judgment.


source: Caselaw Access Project

author: By WILEY, J.

license: Public Domain

text:
    E. R. JOHNSTONE MACHINERY COMPANY, Plaintiff, v. OWENS SCREW PRODUCTS, Inc. et, Defendants.
    Toledo Municipal Court.
    No. 24306.
    Decided June 17, 1957.
   OPINION

By WILEY, J.

This is an action brought by the E. R. Johnstone Machinery Company, plaintiff, against Owens Screw Products, Inc., and A. M. Donofrio, also known as Anthony M. Donofrio, defendants, on two cognovit notes described as follows:

“$191.67 July 7, 1953.
One Hundred fifty-three (153) days after date for value received we promise to pay to the order of E. R. Johnstone Machinery Company One Hundred ninety-one and 67/100 — Dollars with Interest at the rate of 6% per centum per annum at 300 South St. Clair Street, Toledo 4, Ohio, and we hereby authorize any A-ttorney at Law to appear in any Court of Record in the United States, after the above obligation becomes due and waive the issuing and service of process and confess a judgment against us in favor of the holder hereof, for the amount then appearing due, together with costs of suit and thereupon to release all errors and waive all right of appeal.
Owens Screw Products, Inc. (Seal)
No. 5 Stanley Heilbronner, Vice Pres. (Seal)
Due December 7, 1953 A. M. Donofrio (Seal)”
“$191.67 July 7, 1953.
“One Hundred eighty-four (184) days after date for value received we promise to pay to the order of E. R, Johnstone Machinery Company One Hundred ninety-one and 67/100 — Dollars with Interest at the rate of 6% per centum per annum at 300 S. St. Clair Street, Toledo 4, Ohio, and we hereby authorize any Attorney at Law to appear in any Court of Record in the United States, after the above obligation becomes due and waive the issuing and service of process and confess a judgment against us in favor of the holder hereof, for the amount then appearing due, together with costs of suit and thereupon to release all errors and waive all right of appeal.
Owens Screw Products, Inc. (Seal)
No. 6 Stanley Heilbronner, Vice Pres. (Seal)
Due January 7, 1954 A. M. Donofrio (Seal)1’

After judgment was entered, a motion to vacate judgment was filed on behalf of defendant, A. M. Donofrio, also known as Anthony M. Donofrio, setting forth as grounds for vacating said judgment that judgment was obtained through irregularity and other reasons. By rule of Municipal Court when such motion to vacate is filed, an answer to the original petition setting forth alleged defenses must be filed. Upon the hearing of said motion to vacate and upon consideration of the grounds contained in the motion, and the defenses set forth in the answer required by the Court, the Court ordered that the judgment previously entered be suspended and that the cause be sent to the Assignment Commissioner for trial date.

The important issue to be determined is whether or not the defendant, A. M. Donofrio, is personally obligated upon said notes. Attempting to determine this question, the Court has examined a great number of cases, including those mentioned in memorandums filed herein. As stated in Ohio Jurisprudence—

“Whether in any particular case his act is to be deemed individual or representative has proved a difficult question in many cases. Whether or not a bill or note has been executed by a party in his individual or representative capacity, is in each particular case a question to be determined from a consideration of the whole instrument.” (39 O. Jur., Page 1044.)

No Ohio cases on all fours as the case under consideration has come to the attention of this Court, however, in other jurisdictions several such cases may be cited to illustrate the conflict which exists. Exchange Bank v. Schultz, 149 N. W., 99. In this case the note was signed as follows:

“Glendell Dairy Co. by
Henry O. Harrington, Pres.
J. E. Schultz”

In this case the trial court permitted the introduction of parol evidence. It permitted the defendant, J. E. Schultz, to show that he signed only as an officer of the Glendell Dairy Company and not as an individual. A transcript of much of the testimony was given in this case and the decision in the trial court was in favor of J. E. Schultz, however, the Appellate Court reversed the decision and stated that “at best Schultz was simply mistaken as to the legal effect of his signature but there is no showing that the payee understood he (Schultz) was to sign in a representative capacity. Indeed, the contrary appears.” The Court further stated “lie (Schultz) did not show by clear and convincing evidence that they (the notes involved; were signed by him through a mutual misiaise of the parties or that the payee obtained his signature through misrepresentation or fraud.”

In another case, Hoffstaedter v. Lichtenstein, 196 N. Y. S., 577, the note was in this form—

“We promise to pay etc.
Carlton Auto Supplies Co., Inc.
Sam Lichtenstein
Wm. Lee, Treas.”

The Court held “In an action on a note against a corporation and its president evidence of circumstances attending the execution of the note and that the president had no personal transactions with payee, was held competent to repel the presumption that the president signed as an individual. In this case the trial court sustained an objection to such parol evidence and the Appellate Court held that the trial court erred in not admitting such proofs. The Court said “Such proof might have presented a question of fact for the jury as to whether Lichtenstein was liable personally.” The Court sent the ease back to the trial court for a new trial.

On the other hand, we cite Coal River Colliers v. Eureka Coal etc., et al, and N. Orleans, 132 S. E., 337. In this case the note read in part—

“We promise, etc.
Eureka Coal & Wood Co., Inc.
J. Liebman, Treasurer, N. Orleans.”

Orleans defended on the ground that he signed as president and not personally. The trial court admitted parol evidence on behalf of Orleans to show that he intended to sign only as president. The Appellate Court held that the trial court erred in admitting parol evidence, reversed the decision of the trial court and entered final judgment for the plaintiff in the case. Wurlitzer v. Rossmann, 190 S. W., 636, in which case the note was signed—

“International Piano Co.
N. D. Gross, Pres.
Telka Rossmann.”

Rossmann was held personally liable and the Court also stated that the trial court erred in admitting parol evidence to prove that Rossmann did not sign as an individual. (Rossman actually was secretary of the company.)

At this point, a general statement taken from 32 Corpus Juris Secundum, Page 852, might well be in order.

“929. In General
“The rule excluding parol evidence to vary or explain written documents is a flexible one, subject to many exceptions.
“There is perhaps no rule of law or of evidence which is more flexible or subject to a greater number of exceptions than the rule which excludes parol evidence offered to vary or explain written documents.
“While it has been said that in the multitude of exceptions much confusion has arisen, so that the exact limit to be placed on the exceptions depends not only on the peculiar facts of each case, but also to some extent on the peculiar cast of thought of the individuals composing the court, it may be stated generally that the courts have endeavored to adapt their ruling, either way, to the obvious demands of abstract justice in each particular case. The result is that, while the decisions are fairly uniform with respect to their abstract statements of the limitations of and exceptions to this rule, when the question arises as to whether a case presenting a particular state of facts comes within the general rule, or is taken out of it by one of the recognized limitations or exceptions, or again brought within it by one of the numerous limitations of, and exceptions to, those limitations and exceptions, the authorities are in many instances in hopeless conflict.”

It appears to this Court that the pleadings in this case and the notes involved fairly raise the question as to whether or not A. M. Donofrio should be held personally liable. If for the sake of argument it would be admitted that A. M. Donofrio did intend to sign only as president of the Owens Screw Products, Inc. and not as an individual, and that E. R. Johnstone, president of the E. R. Johnstone Machinery Company, also intended A. M. Donofrio to sign as such officer and not as an individual, parol evidence should be admitted to indicate this fact. Essentially this is exactly what the defendant in the case contends to be the fact.

Without attempting to bring the facts of the present case within one of the so-called well known exceptions to the parol evidence rule, such as fraud, duress, misrepresentation, ambiguity, mutual mistake, etc., the principles of abstract justice seem to require that parol evidence be admitted in those cases where the name of a corporation appears in the signature on a note, together with the signature of an individual designated as an officer of the corporation and the signature of another individual who is not designated as an officer of the corporation but in fact is such an officer. This parol evidence should be admissible to prove the character in which the individual actually executed the note, even though his title does not appear upon the face of the instrument. However, since the effect of permitting such evidence might result in relieving an individual from personal responsibility even though he did not take advantage of the negotiable instrument act by indicating on the face of the note that he actually signed as an officer of the corporation, the proof should be by clear and convincing evidence.

However, in consideration of all of the evidence in the case before this Court and the relationship of the parties, it appears to this Court that the defendant, A. M. Donofrio, has failed to prove his contention by clear and convincing evidence. As in the case cited above, Exchange Bank v. Schultz, we can well paraphrase the words of the Court by saying at best Donofrio was simply mistaken as to the legal effect of his signature but there is no showing that the payee understood that Dono-frio was to sign in a representative capacity. Indeed the contrary appears.

Therefore, it is hereby ordered and adjudged that the plaintiff have and recover judgment against the defendant, A. M. Donofrio, also known as Anthony M. Donofrio, in the sum of Three Hundred Ninety-Six and 16/100 Dollars ($396.16), plus interest at Six (6%) per cent per annum from January 29, 1954, and for costs.


author: By THE COURT.

text:
    ZAJICEK et, Plaintiffs-Appellees, v. OWENS, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 5338.
    Decided October 1, 1956.
    John L. Davies, Jr., Columbus, for plaintiffs-appellees.
    Vernon J. Kertzinger, Columbus, for defendant-appellant.
   OPINION

By THE COURT.

This is a law appeal from a judgment of the Municipal Court of Columbus, Ohio. The action was one seeking to recover the contract price for an aluminum awning erected over the front porch of the defendant-appellant’s home. Specifications contained in the contract provided that the awning should project 74 inches, drop 24 inches and be 290.5 inches in length, for a total of 171.89 feet. The record reveals that the measurements were made by the agent of the plaintiff who secured the order and it also discloses that the awning did not extend 4 inches beyond the dimensions of the porch floor, which the defendant says she requested, but that it was so constructed that water dropped from the awnings onto the concrete floor below. For this reason she was not satisfied with the work and payment was refused. There was no evidence that the work was not done in accordance with the terms of the written contract. The answer contained a general denial and also a cross-petition for damages to the property.

The trial court rendered a judgment for the amount of the contract less $100.00 which it appears was allowed on the cross-petition. Although no assignment of errors has been filed by the appellant in accordance with Rule VII of this Court, and which is grounds for dismissing the appeal, we have examined the appellant’s brief and find that it is urged that the judgment is against the manifest weight of the evidence. We have fully examined the bill of exceptions and note that there is a conflict in the testimony on the issues presented and therefore we cannot say that the judgment is not supported by the evidence. It was the province of the trial court to determine the credibility of the witnesses and make a determination of the factual issues, and we cannot say that it erred in so doing.

The appellees have also filed a cross-appeal in which it is urged that the court erred in failing to award them the full amount prayed for in the petition. However, we find that no notice of appeal was ever filed by the appellees in accordance with §2505.04 R. C.; hence, this Court has no jurisdiction to entertain the same. See Greenberg v. Snodgrass Co., 95 Oh Ap 307, the third paragraph of the syllabus of which provides:

“Each party is responsible for perfecting his appeal, and the time for filing his notice of appeal is not in any way extended “or curtailed by the time consumed by some other party in filing his notice of appeal.”

We find no error in the record and the judgment will be affirmed.

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


author: By MILLER, J.

text:
    LINDSAY, Plaintiff-Appellant, v. LINDSAY, Defendant-Appellee.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5609.
    Decided April 23, 1957.

      Isadore L. Margulis, Columbus, for plaintiff-appellant.
    Evan P. Ford, Canal Winchester, for defendant-appellee.
    (MILLER and HORNBECK, JJ, of the Second District, sitting by designation in the Tenth District.)
   OPINION

By MILLER, J.

This is a law appeal from a judgment of the Common Pleas Court, Division of Domestic Relations, awarding the custody and control of the minor child of the parties hereto to the defendant, the father of said child.

The record reveals that on February 5, 1953, the plaintiff-appellant, Wilma Fae Lindsay, was granted a divorce decree from the defendant-appellee, Roscoe G. Lindsay, and she was also awarded the custody and control of their minor child, Brenda Lindsay. The defendant was also ordered to pay support money for said child, and being in default, was cited on several occasions for contempt for failure to comply.

On August 22, 1956, the defendant filed a motion seeking a change of custody of said child. This motion was sustained and the court journalized the following entry:

“On motion of defendant for change of custody of minor child of parties hereto, this cause came on to be heard on open court by the Referral Officer on said motion and the testimony of the parties hereto and witnesses called by said parties, and the Court being fully advised in the matter finds the motion of the defendant well taken and it is therefore ordered and adjudged that the defendant is hereby and herewith awarded the custody and control of the minor child of the parties hereto, Breda Lindsay, age four years, until further order of the Court.
“It is further ordered and decreed that said child’s mother, plaintiff herein, shall have reasonable rights of visitation with said child. This order is effective as of October 24, 1956, to all of which plaintiff, by and through her counsel excepts.”

The bill of exceptions reveals that the motion came on for hearing before the Referral Officer of the Court of Domestic Relations and that at the outset counsel for the plaintiff objected to the referee hearing the case, urging that this would be in violation of rights guaranteed to the plaintiff under the Federal and State Constitutions. This objection was overruled by the referee and the hearing proceeded, each of the parties submitting evidence on the merits of the motion.

The errors assigned may be epitomized as

(1) The reference was in direct conflict with the plaintiff’s constitutional rights, the same being in violation of Article I, Section 16, Ohio Constitution.

(2) That the judgment is contrary to law.

The constitutional provision referred to is that guaranteeing to all persons the right to due process of law in all matters of litigation. It is urged that in submitting this matter to the referee the court denied the plaintiff the right of a hearing under the due process clause. The right to a trial by jury appears to be the only preclusion of a, compulsory reference of a matter pending in the courts. The question is not a jurisdictional matter but one of procedure. Dillon v. City of Cleveland, 117 Oh St 258, 266; Toulmin v. Baker, 94 Oh Ap 524. Sec. 2315.26 R. C., provides that any of the issues in an action or proceeding may be referred to a referee upon the consent of the parties, but when consent is not given, the court on its own motion may refer certain cases to a referee. Sec. 2315.27 R. C., provides:

“When the parties do not consent to the reference mentioned in §2315.26 R. C.. the court, or a judge thereof in vacation, upon the application of a party, or on its own motion, may direct a reference in any case in which the parties are not entitled by the constitution to a trial by jury.”

It will be noted that this section authorizes that a referee may be appointed “in any case in which the parties are not entitled by the Constitution to a trial by jury.” Since this is a motion for a change of custody it may not be urged that the plaintiff was entitled to a trial by jury. Hence the referral to a referee was in accordance with law. See 35 O. Jur. 104, Sections 7 and 8; 45 Am. Jur. 543.

In considering whether or not the judgment was in accordance with law an examination of the record reveals that the referee made no written report of his findings of fact or conclusions of law. These appear to be required of a referee, for §2315.31 R. C., provides:

“Referees must state the facts found, and conclusions of law, separately. Their decision must be given, and may be excepted to and reviewed, as in a trial by the court. Their report upon the whole issue shall stand as the decision of the court, and judgment may be entered thereon as if the court had tried the action.”

Since no decision was given by the referee the plaintiff was denied the right to except to the same and have it reviewed as in a trial by the court. It should also be noted that the statute provides that the decision of the referee shall stand as the decision of the court and judgment may be entered thereon the same as if the matter had been tried by the court. However, the court had no finding on which to base its judgment; hence it is not in accordance with law.

The identical question presented by this assignment of error was. considered by the court in the case of DeVille v. DeVille, 87 Oh Ap 220. Paragraph 2 of the syllabus provides:

“2. Parties to a ‘special proceeding’ involving the custody of a child are entitled to have a Juvenile Court referee certify his findings and recommendation to the court in writing, to have notice of the filing' thereof and to the right to file exceptions thereto and a hearing thereon prior to the entry by the court of any order upon such findings and recommendation,”

The only difference between the cited case and the case at bar is that in the former the referee was appointed by a judge of the Juvenile Court while in our case the appointment was made by a judge of the Court of Common Pleas.

It is our conclusion that the court committed prejudicial error in entering the judgment, which will accordingly be reversed and cause remanded for further proceedings according to law.

PETREE, PJ, HORNBECK, J, concur.


author: By THE COURT:

text:
    STATE, Plaintiff-Appellee, v. RIKE, Defendant-Appellant.
    Ohio Appeals, Second District, Montgomery County.
    No. 2236.
    Decided May 14, 1953.
    Mathias H. Heck, Pros. Atty., By Herbert M. Jacobson, Asst. Pros. Atty., for plaintiff-appellee.
    Louis C. Capelle, Cincinnati, for defendant-appellant.
   OPINION

By THE COURT:

Submitted on motion of appellee to dismiss the appeal for failure to comply with the provisions of §13459-3 GC, in that appellant failed to file his brief with the transcript.

Notice of appeal was filed on March 13, 1953. The transcript of the docket and journal entries was filed March 17, 1953. On April 24, 1953, counsel for appellant filed a paper designated “brief and assignment of errors.” In fact the document is in no sense a brief, but embraces only the assignments of error.

This Court has many times held that the provision of §13459-3 GC, requiring the briefs and assignments of error to be filed with the transcript is mandatory, and a motion to dismiss the appeal will be sustained for failure to comply with this requirement. See State v. Moore, 84 Oh Ap 91, and City of Dayton v. Swartzel, 88 Oh Ap 512, and cases therein cited.

Motion to dismiss will be sustained.

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


author: By HUNSICKER, PJ.

text:
    FLYNN, Plaintiff-Appellant, v. LITTLE, Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23788.
    Decided March 20, 1957.
    Charles C. Redmond, Owen C. Neff, for plaintiff-appellant. McConnell, Blackmore, Cory, Burke & Kundtz, for defendant-ap-pellee.
    (HUNSICKER, PJ, STEVENS and DOYLE, JJ, of the Ninth District, sitting by designation in the Eighth District.)
   OPINION

By HUNSICKER, PJ.

John P. Flynn, the appellant here, brought an action in the Common Pleas Court of Cuyahoga County against Patricia Little, the appel-lee here, for personal injuries received when traveling on the Pennsylvania Turnpike near the town of Ephrata, Pennsylvania.

John Flynn and two other young men were riding with three girl friends from New York to Cleveland, Ohio, on the Pennsylvania Turnpike on April 12, 1952. The automobile in which they were riding, a Plymouth Station Wagon, was owned by C. P. Wright & Co. One of the young ladies was Geraldine Wright, the daughter of the president of C. P. Wright & Co. She was later married to Mr. Flynn.

At the time of the occurrence giving rise to the action brought in the trial court, Patricia Little, the appellee, was driving the station wagon, and John P. Flynn was resting, by lying on a mattress back of the rear seat.

For a period of ten or fifteen minutes preceding the accident, there was a very hard rain. The windshield wiper was put into operation, and shortly thereafter Miss Little saw a small tan object with legs, which she said she thought was a dog, moving from the left side of the road across her path; she said it appeared to be up in the air. It was either a rabbit, a skunk, or some other small animal such as are frequently seen on the country highways.

Miss Little suddenly swerved the automobile to the right, thereby losing control of the car on the wet highway, causing it to strike the right guardrail. The car came to rest in the center strip of the turnpike. Mr. Flynn was thrown out of the car and down a steep embankment to the right of the road, thereby suffering very severe injuries.

The testimony on the question of the speed at which the car was being driven, for five or ten minutes preceding the accident, is in very sharp conflict. Miss Little and the defense witnesses place the range of speed at 50 to 60 miles an hour. Mr. Flynn and his witnesses put the range of speed at which the car was being driven, immediately prior to the accident, at 60 to 75 miles an hour. It is conceded that, as a result of protests given to Miss Little, she did reduce the speed shortly before the accident. The extent of the reduction is disputed.

There is also a great conflict in the testimony concerning protests and warnings given to Miss Little to slow down. Mr. Flynn says he did protest, although Mrs. Flynn, then Geraldine Wright, said she did not recall hearing him protest the speed. Miss Little was hard of hearing, but she said she did hear another passenger, one Carol Hoff, who was sitting beside her in the front seat, warn against her driving so fast. It was then she reduced her speed to 50 to 55 miles an hour.

There was also shown to be some conflict on the above subjects in the testimony given by way of deposition by Mr. Flynn, and the testimony he gave in the trial court. He said he was “very uneasy” for five minutes before the accident, for he thought Miss Little was driving at a “dangerous” rate of speed, although during this period of time he said nothing to her concerning the speed at which she was driving.

A trial resulted in a jury verdict in favor of Miss Little. It is from the judgment rendered on the verdict that an appeal on questions of law is lodged in this court.

Mr. Flynn says:

“1. The trial court committed prejudicial error against the plaintiff in the rejection of special written requests to charge before oral argument offered by the plaintiff.
“2. The trial court committed prejudicial error against the plaintiff in the granting of special written requests to charge before oral arguments presented by the defendant over the objection of the plaintiff.
“3. The trial court committed prejudicial error against the plaintiff in the general charge.
“4. The verdict and the judgment thereon are contrary to the manifest weight of the evidence.
“5. The trial court committed prejudicial error against the plaintiff in the exclusion of evidence offered by the plaintiff.
“6. The trial court committed prejudicial error against the plaintiff in the admission of evidence offered by the defendant over the objection of the plaintiff timely made.
“7. Other errors apparent on the face of the record.”

In the consideration of this case, it should be pointed out that the substantive law of the state of Pennsylvania must be applied. The adjective law or procedural law is, of course, the law of Ohio.

We shall consider the claims of error in the order set out above.

The trial court was asked to give the following charge before oral argument, which request was refused:

“Request No. 12. The court instructs you that one who is operating a vehicle upon the highway is under a duty to be continuously alert to perceive any warning of danger that is reasonably likely to exist, and to have one’s vehicle under such contral that injury to persons or to property can be averted, and his failure to operate the vehicle in that manner constitutes negligence.”

If this request was responsive to any issue raised by the pleadings, the proved facts and the rules of law necessary for their determination, the court was obliged to give it to the jury before the oral argument. Bisseront & Deposit State Bank v. Lett, et al., 5 Oh Ap 439; 39 O. Jur., “Trial” Sec. 318. p. 1036 and authorities there cited.

Title 75, Sec. 501, Purdon’s Pennsylvania Statutes Annotated, Permanent Edition, says, in its pertinent part:

“(a) Any person driving a vehicle on a highway shall drive the same at a careful and prudent speed, not greater than nor less than is reasonable and proper, having due regard to the traffic, surface, width of the highway, and of any other restrictions or conditions then and there existing, and no person shall drive any vehicle, upon a highway at such speed as to endanger the life, limb, or property of any person, nor at a speed greater than will permit him to bring the vehicle to a stop within the assured clear distance ahead.
“(b) Subject to the provisions of subsection (a) of this section, speeds in excess of the maximum limits hereinafter provided shall be unlawful:
* *
“7. Seventy (70) miles an hour speed limit: All vehicles when being operated on highways under the supervision and control of a Turnpike Commission, except those otherwise restricted by this act to lower maximum speeds, and except when restricted to lower maximum speeds by such Turnpike Commission upon the highways under its supervision and control or any zones or sections thereof where official signs erected by such Turnpike Commission on the highway facing the traffic to be controlled are displayed.”

Thus, the speed at which a vehicle may be driven on the Pennsylvania Turnpike is subject to the limitation contained in subsection (a) of the statute set out above.

The charge, as requested, is a proper abstract statement of the law as set out in the Pennsylvania cases. Wilson Freight Forwarding Co. v. Seal, 367 Pa. 18, 79 A. 2d 648; Kindt v. Reading Co., 352 Pa. 419, 43 A. 2d 145.

The “warning of danger” phrase, which is included in the requested charge by the cases above cited, refers to other objects than a small animal sitting by the side of the road. The evidence in the instant case fails to disclose any justification for the inclusion of the “warning of danger” phrase in the charge as requested, and hence the trial court properly refused to so instruct the jury.

Mr. Flynn says the trial court should have given the following requested charge (No. 13) before oral argument:

“The court instructs the jury that the duty of a guest in an automobile to protest exists only where such protest would serve some useful purpose. Where guests in an automobile have protested against the manner in which the vehicle is being operated another guest cannot be considered negligent as a matter of law because he fails to reinforce such protest with his own.”

Although Pennsylvania has no “guest law,” the courts of that state have, by judicial interpretation relating to the conduct of guest passengers in motor vehicles, placed certain requirements upon the guest .passenger to protest the negligent acts of his host before liability attaches for an injury resulting from the negligent conduct of the host driver. Hardie v. Barrett, 101 A. 75. Curran v. Lehigh Valley R. Co., 149 A. 885. Landry v. Rosenstein, 188 A. 855.

One of the obligations which a guest passenger in Pennsylvania must bear is that where an opportunity is present to protest the negligent conduct of the host driver, and the guest passenger fails to make a protest and permits himself to be driven carelessly, to his injury, this failure to protest is deemed to be contributory negligence which will bar a recovery by the guest passenger. Minnich v. Easton Transit Co., 267 Pa. 200.

In some situations, such as a lack of adequate opportunity to protest, or where the guest did not know of the speed at which the vehicle was being driven, such guest passenger will not be deemed to be guilty of contributory negligence as a matter of law. Bynon v. Porter, 336 Pa. 441, 9 A. 2d 357. Gormican v. Menke, 306 Pa. 156, 159 A. 36.

The rule we are now discussing is stated in Friedrich v. Baltimore & Ohio R. Co., 360 Pa. 515, 62 A. 760, at p. 762, as follows:

“Contributory negligence of a guest will not be declared as a matter of law unless in the face of known or obvious danger he has exhibited disregard for his own safety and made no effort to control the operation of the vehicle * * *. He may not sit idly by and permit himself to be driven carelessly to his injury where there are dangers reasonably manifest and known to him * *

The protest of one guest does not inure to the benefit of another guest where the injured nonprotesting guest had an opportunity to protest but failed to do so. In that situation, the Pennsylvania courts say that the injured guest passenger joined with the host driver in testing the dangers which were manifest to both parties. Apfelbaum v. Markley, 2 A. 2d 975.

Considering the situation herein, it was not error for the trial court to refuse to give requested instruction 13, set out above.

Mr. Flynn also asked the trial court to give a pre-argument instruction numbered 14, which request was refused. We hold that such refusal did not constitute prejudicial error, since the requested instruction (No. 14) was substantially covered by another requested instruction — No. 3. The trial courts are not required to give repetitive instructions requested by the same party. 39 O. Jur., Trial, Sec. 324, p. 1048 and authorities there cited. Centrello, a minor, v. Basky, 164 Oh St 41.

We now consider the matter of claimed prejudicial error in giving certain special preargument instructions requested by Miss Little.

The trial court gave, at Miss Little’s request, the following charge (No. 9) before the oral argument:

“I charge you as a matter of law that when the driver of an automobile is confronted with a sudden emergency which is not of his own making, so that he does not have the opportunity to act with the judgment he ordinarily may exercise, he is held in law only to the exercise of his best judgment under the circumstances.
“If you find that this accident was caused solely by the natural, impulsive act of Patricia Little in seeking to avoid an imminent danger which was suddenly thrust upon her when an animal entered the highway ahead of her car that the emergency was not of her own making; and that she used her best judgment under the circumstances, there would be no negligence on her part, and your verdict must be in favor of the defendant.”

What was the sudden emergency which it is claimed confronted Miss Little? It consisted only of a small animal — a rabbit or a skunk — sitting beside the road, which suddenly started to cross in front of the oncoming car. We must remember that these parties were traveling on a turnpike in the country area, where there were no cross streets or houses bordering the highway. Under such conditions, it is not unusual for one to frequently see small animals at night dart in front of a lighted vehicle.

When one drives along a highway in the country, dead animals are frequently seen beside and in the road. We do not, however, think it unusual for the driver of a vehicle to attempt to avoid striking such an animal. It seems but a natural thing for a driver of an automobile to swerve to keep from hitting any living object. The conduct of Miss Little, in this respect, was hence natural and in accord with normal conduct. The doctrine of emergency was thus in this case.

A small animal, however, seldom creates such an emergency as to cause great harm if the vehicle is under control. The testimony in the instant case indicates such a situation herein, and hence the jury should have been more clearly instructed as to the sudden emergency rule and its application to this case.

The requested charge was not complete, for the phrase “not of his own making,” in our judgment, does not give to the jury all that the lav/ of Pennsylvania requires. The rule is laid down in the case of Casey v. Siciliano, 310 Pa. 238, 165 A. 1, and approved in Kins v. Deere, et al., 359 Pa. 106, 58 A 2d 335, in which latter case the court said, at page 339:

“Chief Justice Kephart in an opinion for this court in Casey v. Siciliano, 310 Pa. 238, 165 A. 1, 2, stated with regard to the application of the emergency rule: ‘When the driver of an automobile claims that he has been subjected to a sudden emergency in driving on the highways, to enable him to claim the benefit of this rule, it must appear that he was not driving in a reckless or careless manner, but with due regard to the condition of the highway and the traffic. One driving carelessly cannot say he was placed in sudden peril. If driving in a careful manner, the peril would not have arisen.’ The question, therefore, is usually one for the jury to determine, under proper instruction.”

We therefore conclude that the trial court committed error prejudicial to the substantial rights of the appellant, Flynn, when he gave the instruction No. 9 requested by appellee, Little.

We have heretofore discussed the law of Pennsylvania with respect to the necessity on the part of a guest passenger to protest the careless conduct of the host driver. Tested by the rule which we set out above, appellee Little’s requested instruction No. 10 is- not a fair statement of the law in Pennsylvania on that subject.

The charge is as follows:

“I charge you as a matter of law that when a passenger in an automobile sees his driver proceeding in a negligent manner, and the passenger has any adequate opportunity to control the situation, he must make vigorous protest, if he sits by without protest and permits himself to be driven on to his injury, he is chargeable with contributory negligence which prevents him from recovering damages from the driver.
“If you find that Patricia Little was driving in a negligent manner and that the plaintiff, John Flynn, was aware of it and had adequate opportunity to exercise some control over the situation, but that he sat by without making vigorous protest, you must find that he was negligent. If you further find that such negligence on his part proximately contributed to cause his injuries, your verdict must be for the defendant, Patricia Little.”

The writer of this opinion has read many Pennsylvania cases concerning the duty of a guest passenger to protest the known reckless conduct of the host driver, but in all of those cases the phrase “vigorous protest,” as set out in this requested instruction, is conspicuously absent. Hardie v. Barrett, supra. Minnich v. Easton Transit Co., supra. Bynon v. Porter, supra.

The cases cited in the above ease as authority for the “rule of protest” do not require that the protest be “vigorous.”

The phrase “control of the situation” is used frequently in the Pennsylvania cases wherein the “rule of protest” is set out, and such phrase generally refers to the opportunity to speak out in warning against the driver’s reckless conduct. It is not always used in a situation where the passenger is the employer of the driver, as in the Hardie v. Barrett case, supra.

The rule with regard to the sufficiency of protest in Pennsylvania is different from that in certain other states, such as West Virginia, where, in Boyce v. Black, 123 W. Va. 234, 15 S. E. 2d 588, it is stated that the protest of one passenger inures to the benefit of all passengers. This is the rule also in Arkansas, as shown by the case of Ragland v. Snotzmeier, et al., 55 S. W. 2d 923.

We determine herein that the trial court, in giving the requested instruction No. 10, as asked for by Miss Little, placed too great a burden upon Mr. Flynn when the court required that a “vigorous” protest be given to Miss Little before Mr. Flynn could be free from contributory negligence in the circumstance. The giving of such instruction was error prejudicial to the substantial rights of the appellant.

The adjective law of the state of Ohio, on the subject of erroneous requested instructions, is set out in 4 O. Jur. 2d, Appellate Review, Sec. 988, at p. 261, as follows:

“The rule has also been laid down that requested charges should be statements of general rules, not only correct in the abstract, but so covering the case as not to give a one-sided view of some particular theory of counsel or attach undue importance to some particular item of evidence, and that the giving of requests which do not meet this requirement is reversible error. Furthermore, requested charges should be complete and should state the law correctly and clearly within themselves, and the giving of one which fails to do so, to the prejudice of the adverse party, is ground for reversal.”

See also: Eaton v. Askins, 95 Oh Ap 131.

We have examined all other claimed errors, and find none prejudicial to the substantial rights of the appellant.

For the reasons set out herein in the giving of instructions 9 and 10, as requested by Miss Little, the judgment herein is reversed, and the cause remanded to the trial court for further proceedings.

Judgment reversed and cause remanded.

STEVENS and DOYLE, JJ, concur.


author: By PHILLIPS, PJ.

text:
    POPOVICH, Plaintiff-Appellant, v. PECHKUROW et, Defendants-Appellees.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3838.
    Decided March 27, 1956.
    Paul E. Stevens, Youngstown, for plaintiff-appellant.
    Modarelli & Modarelli, Youngstown, for defendant-appellees.
   OPINION

By PHILLIPS, PJ.

As his sole assignment of error filed in his appeal to this court on questions of law from a judgment of the court of common pleas entered in plaintiff’s action to recover damages for personal injuries allegedly resulting directly and proximately from defendant’s negligence, plaintiff claims “that the court of common pleas erred when at the close of all the evidence it directed the jury to return a verdict for the defendants,” relying upon Polando v. Vizzini, 58 Abs 466.

About midnight on July 10, 1953, plaintiff was a patron of and seated at a table in defendant’s tavern, when patron Scullen, who had been drinking, entered and was served beer by defendant Pechkurow. About an hour after he entered defendant’s tavern patron Scullen began to verbally abuse an elderly woman patron sitting at another table and plaintiff “asked him to sit down and act like a gentleman.” Scullen then broke a glass and attacked plaintiff.

Defendant Pechkurow stopped the scuffle and Scullen left saying he was going home to get his gun and come back and shoot everyone in the tavern except patron Jesse Pyle and waitress Virginia Janis. Defendant Pechkurow locked the tavern door after Scullen left after advising patrons to finish their drinks as it was near closing time and dimmed the lights, but did not notify the Police Department of such disturbance. In about fifteen minutes Scullen returned with his rifle, and while standing outside the door of the tavern fired several shots through the glass panel of the door, one of which hit plaintiff in his left leg necessitating it being amputated.

Plaintiff argues that defendants, tavern owners, owed a duty of reasonable and ordinary care to protect him as a patron and invited guest and to keep the tavern in reasonably safe condition, which includes guarding the tavern against “foreseeable circumstances, the natural consequences of which would probably result in injury to” him; that defendant Pechkurow served intoxicating liquor to the “already inflamed and drunken Scullen,” and failed to call the police after “being directly warned of Scullen’s intention; set and kept in force the chain of events which from the first wrongful act continued proximately and directly until it produced the injurious consequences, i. e., the injury to the plaintiff,” notwithstanding the events intervening between the first “wrongful cause and the final injurious consequence” which “might with reasonable diligence have been foreseen the last result as well as the first, and every immediate result, is to be considered in law as the proximate result of the first wrongful cause,” and cites Mouse v. Central Savings & Trust Co., 120 Oh St 599.

Further plaintiff claims that as ordinary prudent persons defendants should have foreseen what would probably result from their negligence in serving Scullen beer, and that the evidence was such as to present a question for the consideration of the jury because different minds could reach different conclusions.

If the evidence in this case had been submitted to the jury for deliberation the jury to find favorably for plaintiff therefrom would have had to infer that defendants were negligent toward plaintiff in failing to call the police after Scullen’s threat that he was going home to get his gun and then return to shoot the designated persons in defendants’ tavern. From that inference the jury would have had to infer that Scullen would return within fifteen minutes, the time within which it was testified something could have been done to prevent the shooting; and infer that had the police been called they would have arrived in that time to stop Scullen; and then infer that had the police been called Scullen would not have fired this gun through the locked tavern door, and plaintiff would not have been injured. Thus an inference would have been predicated upon an inference in violation of the settled law as announced in Sobolovitz v. The Lubric Oil Co., 107 Oh St 204, and 39 O. Jur., Section 191, Page 816, where it is said respectively:—

“While it is true that a jury in the trial of civil cases deals with probabilities, it is limited in that respect to the ascertainment of the probable truth from the evidence and reasonable inferences deducible therefrom. An inference presupposes a premise from which it is deduced, and, as applied to evidence, the premise is some proven fact. The inference arises out of a process of reasoning, or from common experience, that when certain facts exist, certain other facts usually co-ordinate therewith, but we find no authority for basing an inference upon an inference, and it therefore does not follow that because one essential element of a right to recover may be inferred from proof that all other necessary elements to recover may be inferred therefrom. * * *
“This court would be loath to lay down a rule which would relieve the plaintiff of the burden of proving the essential facts necessary to create liability and impose upon the defendant in the first instance the burden of proving the non-existence of such facts. But, on the contrary, the majority of this court adhere to the rule that before the defendant is put upon his defense the plaintiff must produce some proof of every fact necessary to create a liability, or some proof of a fact from which a reasonable inference may be deduced which tends to create a liability, and that an inference cannot be predicated upon an inference. * * *.” Sobolovitz v. Oil Co., supra, at page 208.
“If, under the case made by the plaintiff, recovery can be based only upon one inference predicated upon another inference, the trial court, upon proper request, should direct a verdict for the defendant, as an inference thus raised is not sufficient to create a question for the jury. An inference, in order to create a question for the jury, must be based upon evidence, and not upon another inference.” 39 O. Jur., Page 816, Section 191.

We believe, as the trial judge said, in directing a verdict for the defendants:—

“Now, if you had the situation where he came in and started a shooting, I think that would be different, I think that would be for the jury then, if the proprietor let him come back in with a gun, but here the proprietor would not let him in, he locked the door and closed the place. * * *
“* * * We have all those inferences in there before you get any negligence at all, so you have an inference piled on an inference.”
If the rule of law were as plaintiff urges still from his evidence he could not recover.
“The general rule is that when, between negligence and the occurrence of an injury, there intervenes a wilful, malicious, and criminal act of a third person which causes the injury but was not intended by the negligent person and could not have been foreseen by him, the causal chain between the negligence and the accident is broken.” 38 American Jurisprudence, Page 728, Section 71.
“Wrongful acts of independent third persons, not actually intended by the defendant, are not regarded by the law as natural consequences of his wrong, and he is not bound to anticipate the general probability of such acts, any more than a particular act by this or that individual. This rule applies a fortiori to criminal acts.” 29 O. Jur., Section 81, Page 500.

The judgment of the court of common pleas is affirmed.

NICHOLS and GRIFFITH, JJ, concur in judgment.


author: By KOVACHY, J:

text:
    TERNANSKY, etc., Estate of, In re: TERNANSKY, Appellant, v. RABATIN et, Appellees.
    Ohio Appeals, Ninth District, Summit County.
    No. 4651.
    Decided March 20, 1957.

      Naumoff &o Naumoff, Barberton, for appellees.
    E. H. Hauenstein, Akron, for appellant.
    (SKEEL, PJ, KOVACHY and HURD, JJ, of the Eighth District, sitting by designation in the Ninth District.)
   OPINION

By KOVACHY, J:

Appellant, William Ternansky, is devisee and legatee under the will of his mother, Rose Ternansky, Deceased, whose estate is being administered in the Probate Court of Summit County. He filed exceptions to the final and distributive account. The exceptions were overruled and the account ordered approved by the probate judge. He appeals here from that order on questions of law.

The exceptions were directed to the distributive share of William Ternansky in the amount of $3412.06, placed, under the terms of Item X of the will, in the hands of his sister, Florence Millen as trustee for his benefit, the exceptor claiming that said purported trust provision was ineffective to create a testamentary trust and therefore null -and void. Item X of the will reads:

“ITEM X: — All the remainder of my property, real, personal and mixed, of every kind and description, wheresoever situate, which I may own at the time of my decease, I give, bequeath and devise to my children, Margaret Rabatin, Florence Millen, and William Ternansky, share and share alike, absolutely and in fee simple, except William Ternansky’s share which is to be given to Florence Millen to be held in trust by her for William Ternansky, and said trust to be paid over the whole or any part of the corpus of said trust fund to said William Ternansky, and at such time or times, and in such amount or amounts, as said trustee may deem advisable.”

The trial court found:

“Trust is what is known as a discretionary trust, and that a discretionary trust is valid in Ohio.”

Appellant, William Ternansky, contends:

“that the ruling of the Probate Court is contrary to law; that the ruling of the Probate Court should have been in favor of the appellant and against the appellees; and that the Probate Court should have sustained the exceptions of appellant, declared said attempted trust to be invalid and ordered the share of William Ternansky to be paid over to him.”

A reading of the will of Rose Ternansky, Deceased, discloses that she gave great care in the disposal of her property. Consideration in the case of one daughter was given to the gifts and advances made to her. To another daughter she merely bequeathed a lump sum of money. She remembered her two granddaughters and bequeathed sums of money to each. She divided two parcels of real estate among her three remaining children, and then devised and bequeathed to each of the three remaining children an equal division of all her remaining property, real, personal and mixed (Item X). Two children thereunder were given their respective shares outright. William alone was denied that right. His share was entrusted to his sister, Florence Millen, with uncontrolled discretion to pay the whole or any part of the trust fund to William as she “may deem advisable.” It is significant that of all of her children, William is singled out in this way. His mother must have had sufficient reason to restrict this modest sum in such manner. Moreover, she must unquestionably have had abiding confidence that her daughter Florence would distribute William’s share in the way she herself would have. It was her money and she had every right to dispose of it as she saw fit provided she met the requirements of the law. The intent is clear and should be given efficacy if within juridical bounds with respect to the creation of trusts. Her language denotes that while each of the three children was to receive an equal share of the remainder of her estate “absolutely and in fee simple,” two were to receive their share outright while William was to receive it piecemeal, that is, “at such time or times, and in such amount or amounts,” as the trustee “deems advisable.”

The cardinal elements of a valid express private trust are four:

1. Intent to create a trust.

2. A trustee.

3. A res.

4. A definite beneficiary.

Bogart, 454-467; 65 C. J. 363; Restatement of the Law — Trusts, 4047, 4400.

These elements are present in this testamentary trust. Appellant argues that the language creates a passive trust. That claim is untenable because the trustee in this case has active duties. She must keep possession of the money, and turn the corpus, and by implication the income, if any, over to the cestui que trust in whole or from time to time as she “deems advisable.” Such duties constitute a trust an active one. See Linder v. Officer, 175 Tenn. 402; 135 S. W. (2d) 445, at page 447, where the court said:

“It is only where there are no active duties for the trustee to perform, nor any supervision of the estate imposed on him, that the trust is merely passive.”

See Restatement of the Law — Trusts, Section 69. Appellant also claims that the manner of performance is uncertain. He asks:

Is the money to be invested or just held nakedly by the trustee?

What shall she do with the income?

What becomes of the trust upon the death of the beneficiary? The last of these questions is answered by the provisions of Item X, and we shall deal with it first. Under the will, William Ternansky is vested with the equitable interest. The fund belongs to him “absolutely.” Its immediate enjoyment, however, is withheld from him for the time being because of the trust arrangement. The legal title, as a result, vests in the trustee. If all the money in the trust has not been turned over to him by the time of his death, the equitable and legal titles merge and the money becomes a part of his estate. See In Re Nicholson’s Estate, 355 Pa. 426, 50 A. (2d) 283.

Appellant’s claim of uncertainty in the manner of performance, since no instructions are given the trustee as regards investment of trust funds and disposition of income, if any, cannot be sustained because such matters, where the trust gives no direction with respect to them, are controlled by principles of equity. (65 C. J. 795.) Under these principles, if the corpus of the trust is not transferred to the beneficiary within a reasonable time, it becomes the duty of the trustee to invest it in a manner approved by §2109.37 R. C. Moreover, there can be no problem with respect to income, if there be such, for the reason that the entire trust res belongs to William Ternansky and it, therefore, without question becomes a part of the corpus.

In 40 O. Jur. 332, Section 126, it is stated in part:

“Some of the powers and duties of the trustee are derived from, and determined by, the instrument creating the trust * * *; others are imposed upon the trustee by implication in the court of equity * * *” “The trust instrument may be little more than an instrument of transfer, passing the title of the property to the trustee with a declaration of the trust purpose. In the latter instance, practically all the powers and duties which the trustee may exercise or be required to assume are those imposed upon him by the court in equity or by the general statute.” (Emphasis added.)

See Homer v. Wullenweber, 89 Oh Ap 255, 259, 101 N. E. (2d) 229, 232; Linder v. Officer, 175 Tenn. 402, 135 S. W. (2d) 445, 447; Scott on Trusts, Volume 2, pages 1192 to 1478; Restatement of the Law — Trusts, Chapter 7, 169 to 196.

Appellant further contends that the trust is invalid for the reason that the payment or nonpayment of the corpus is left entirely to the whim of the trustee and as a result the courts are powerless to enforce any payment even in the face of bad faith since she has been expressly relieved of the duty of ever paying any of the corpus or income to the beneficiary. We do not agree with this contention. Courts are not powerless to enforce this trust. Trustees must always act in good faith and always act fairly and reasonably, and a court of equity will and can require such behaviour. Where a trustee is given uncontrolled discretion, as here, he acts much as a judicial officer and is duty bound to exercise sound discretion under the circumstances. A court of equity will not tolerate abuse of sound discretion and in a proper case will compel the exercise of discretion. In 54 Am. Jur. 234, Section 294, it is stated that:

“Questions as to the extent of a discretionary power in a trustee, whether it is absolute and unconditional or limited in some degree or by some condition, must be determined by a construction of the trust instrument or declaration with the object of determining the intent of the trustor. Generally, such a power is limited to the extent at least that a trustee is bound to act in good faith and with due care, diligence and skill. The discretion of trustees may be likened to that of judges. It is not an arbitrary discretion and does not include the unrestrained power to do what the trustee pleases. The trustee, instead of doing merely what, in his present circumstances, he chooses to do, in deference to his interests or inclinations, is to do that which his honest, disinterested judgment approves, or ought to approve.”

In an old New York case, Roosevelt v. Roosevelt, 6 Hun Reports, 31, part of the syllabus reads:

“Held, further, that whether or not any advance should be made and its amount was left entirely to the discretion of the trustees, and with this discretion the court could not interfere so long as the trustees acted in good faith.”

In Bacon v. Bacon, 55 Vermont, 243, the Supreme Court of Vermont said in paragraphs one and two of the syllabus:

“1. It is an express trust for the benefit of the orator, on condition that he proves himself worthy to have it executed in his favor, of which worthiness the trustee is made the judge.
“2. But he is not the sole arbiter. His motives may be inquired into. The trustee cannot exercise his discretion and judgment from fraudulent, selfish, or other improper motives; nor can he refuse to exercise them from such motives; but he must act bona fide, with a simple view to carry out the intention of the testator; and the court will control his judgment and discretion to the extent of compelling an honest exercise thereof.”

We are of the opinion, therefore, that the language incorporated in Item X of this will creates a discretionary trust in which the trustee is given the absolute power to pay over “the whole or any part of the corpus” as she may “deem advisable” and that the trust is valid even though it invests the trustee with uncontrolled discretion in carrying out its purpose. 40 ©. Jur. 511, Section 218, reads as follows:

“Where the trustee is given by the settlor an uncontrolled discretion to pay over to, or to apply to, the cestui que trust amounts of income or principal, as he, the trustee, may determine upon, a discretionary trust is created which differs from both the spendthrift trust and the trust for support.”

Trusts of this character have been approved by the courts in Ohio and other states of the United States. Morris v. Daiker, 35 Oh Ap 394, 172 N. E. 540; Moskowitz v. Federman, 72 Oh Ap 149, 51 N. E. (2d) 48; In re Nicholson’s Estate, 355 Pa. 426, 50 A. (2d) 283; Calloway v. Smith, 186 S. W. (2d) 64; Newton v. Sheppard, 22 N. E. (2d) 618.

Appellant’s claim that the trust violates the rule against perpetuities is without merit under the facts of this case.

In accordance with the above, we hold that the order of the probate judge overruling the exceptions to the final and distributive account and ordering said account approved in the Estate of Rose Ternansky was correct and herewith affirm the same.

Judgment affirmed. Exceptions. Order see Journal.

SKEEL, PJ, HURD, J, concur.


text:
    NAUMOVICH et, Trustee, Plaintiff-Appellant, v. CAIN, City Clerk, Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 5514.
    Decided September 12, 1956.
    Herbert, Tuttle, Applegate & Britt, Thomas W. Applegate, C. Richard O’Neil, Columbus, for plaintiff-appellant.
    Chalmers P. Wylie, City Atty., Russell Leach, Chief Counsel, Columbus, for defendant-appellee.
   OPINION

By THE COURT.

Submitted upon motion of the defendant-appellee seeking an order dismissing the appeal for the reason that the issues involved therein have become moot.

The record reveals that the appeal arises out of the filing of an injunction proceeding wherein it was sought to restrain the appellee, who is the Clerk for the City of Columbus, from reporting the transcript of the proceedings of the Board of County Commissioners to the Council of the City of Columbus, Ohio, for the purpose of its passing an ordinance accepting the annexation of the acreage involved.

Initially a petition was filed with the Board of County Commissioners of Franklin County, Ohio, praying for the annexation of certain territory to the City of Columbus. On July 19, 1955, a hearing was held on the petition and the Board ordered said territory annexed to the City, and further that the proceedings be filed with the appellee as Clerk of said City.

The record reveals further that while the action for injunction was pending the territory involved was annexed to the City of Columbus, no temporary restraining order having been issued against the appellee.

The material facts involved herein are identical with those in the cases of Lamneck v. Cain, No. 5334, Markos v. Cain, No. 5349, and Jones v. Cain, No. 5361, 73 Abs 20, all of this Court. In each of these cases we sustained identical motions for the reason that the appeals had become moot. We will sustain the motion to dismiss for the reasons given in the aforesaid cases.

We might add further that motions to certify these cases to the Supreme Court of Ohio were overruled on February 8, 1956.

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


author: By PHILLIPS, PJ. By NICHOLS, J.

text:
    BOARDMAN SUPPLY COMPANY, Appellant, v. BOWERS, Tax Commr., Appellee.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3832.
    Decided March 28, 1956.
    W. Leo Keating, Warren, Robert B. Weimer, Youngstown, for appellant.
    C. William O’Neill, Atty. Geni., Larry H. Snyder, Asst. Atty. Geni., Columbus, for appellee.
   OPINION

By PHILLIPS, PJ.

The Boardman Supply Company, a corporation, called the Supply Company, appealed under authority of §5717.04 R. €., to this court on questions of law from the final decision of the Board of Tax Appeals of the Department of Taxation of Ohio, called the Board, determining adversely to the Supply Company its appeal from the final determination, findings and order made by the Tax Commissioner of Ohio assessing “a sales and use tax against” the Supply Company in the total amount of $2548.91 including penalties.

The Supply Company sells concrete mixed to the users’ specifications, dry ready for the user to add water, or ready for pouring, in which event it is mixed in transit.

The Supply Company stores temporarily cement and other ingredients of concrete in ground level storage bins which are a part of its “batching plant,” which was purchased and installed as a unit in its yard, from which, as needed, such materials are elevated by inclined conveyors and deposited in separate storage bins.

From these bins the materials descend by gravity into weighing batchers. After being weighed such materials are deposited by chute into collecting hoppers, from which they are discharged by gravity into concrete mixers mounted on motor truck chassis, called transit mixers, or in other trucks. Water secured from deep wells situated on the Supply Company’s property is pumped into a water weighing batcher in exact quantity and is poured into a transit concrete mixer where it is mixed in transit ready to pour on a job site or deposited in a truck loose or in sacks dry ready for the user to add water when ready to pour when not mixed in transit.

All the equipment assessed is situated in the Supply Company’s batching plant.

By assignments of error the Supply Company contends:—

“1. The evidence in the case establishes, without contradiction, that the equipment being subjected to the tax was used directly in the processing of ready-mix concrete in that the blending and proportioning process is a most important, integral, and indispensible part of the process.
“2. The Board of Tax Appeals erred in finding that the ‘process’ did not begin until the material had left the equipment upon which the tax is sought to be assessed. The Board in its decision emphasizes the mixing process but completely ignored the batching process which controls the proportioning of the materials and is sine qua non to the production of ready mix concrete.
“3. The Board of Tax Appeals erred in making its determination by considering the equipment herein as having some mixing function whereas, its sole function is in properly proportioning the material to be mixed.
“4. The Board of Tax Appeals erred in making its determination when it considered the various bins to be storage bins, when in fact, they were merely funnels for the handling of materials.
“5. The Board of Tax Appeals erred in not finding that the items in the assessment constitute personal property used and consumed directly in the production, by processing, of tangible personal property for sale and are, under the provisions of §§5739.01 and 5741.01 R. C., exempt from sales and use taxes; that said items are machinery, equipment and supplies used and consumed in and as a part of the ‘batch plant operations in the production of ready-mix concrete to specifications of the purchasing trade, before the same is available and ready for market and sale; that said operations consist of the receiving in the batch plant of cement, aggregate (sand and crushed stone) and water and the blending thereof into the mix specified by purchasers; and that the operation is a continuing process from the time the ingredients are received in the ‘batch’ plant to delivery of the ready mix concrete by truck to the jobs of the customers.
“6. The Board of Tax Appeals erred in finding that ‘processing starts at the “Batchers” the point where various ingredients entering into the concrete mix or dry batch are brought together.’
“7. The Board of Tax Appeals erred in finding that ‘the various items involved are not incorporated nor did they become a part of the assessee’s plant as within the processing area as herein held and therefore were not used directly in processing.’
“8. The final decision of the Board of Tax Appeals is contrary to and is not sustained by the evidence in the case.
“9. The final decision of the Board of Tax Appeals was and is unreasonable.
“10. The final decision of the Board of Tax Appeals was and is unlawful.
“11. Other errors at law.”

The Supply Company’s contentions are set forth at sufficient length in its assignments of error to understand its position that “under the terms of §5739.01 (E) (3) R. C., that the machinery herein concerned is exempt from sales and use tax.”

The Board contends that “the question presented by this appeal is whether the decision of the Board of Tax Appeals, which affirmed the final order of the Tax Commissioner, assessing sales tax on the purchase of the tangible personal property in question was unreasonable and unlawful,” which it answers in the affirmative.

The Board contends further that the Supply Company “is engaged in the production of ready-mix concrete,” and that the term “directly” means proximately or as having an immediate application; that by the force of §5739.02 R. C., “it is presumed that all sales made in this state are subject to the tax” until the contrary is established, and that when it claims an exemption or exception from the sale or use tax the Supply Company must establish affirmatively its right thereto. Merchants Cold Storage Co. v. Glander, 150 Oh St 524, and National Tube Co. v. Glander, 157 Oh St 407, are cited as authority for that contention.

The sales and use tax plus penalties of $2548.91 were levied upon the Supply Company’s batching plant, where the Board contends the processing of concrete occurs, which processing is defined by the United States Supreme Court in Cochrane v. Deener, 94 U. S. 780, as:—

“A process is a mode of treatment of certain materials to produce a given result. It is an act or a series of acts, performed upon the subject matter, to be transformed and reduced to a different state or thing.”

In the case of France Co. v. Evatt, Tax Commissioner, 143 Oh St 455, upon which the Supply Company relies heavily, the Supreme Court said:—

“Sales of tangible personal property used and consumed in operations consisting of transporting crushed-stone products from a stone crushing and screening plant to yards adjacent thereto, and of draining, cleaning, blending and reassembling such products to comply with the required specifications of the purchasing trade before they are available and ready for market and sale, are sales of personal property used and consumed directly in the production by processing of tangible personal property for sale and are, under the provisions of §§5546-1 and 5546-25 GC, exempt from state sales and use taxes.”

From the evidence it is clear to this court that all of the property sought to be taxed under the decision of the Board is an integral part of a plant designed, purchased as a unit, installed and operated by the Supply Company as a batching plant for the manufacture of concrete according to the purchaser’s specifications for a particular use. Without each and every one of the items of personal property taxed there could be no finished product, and therefore each and every part of the property attached was used in the manufacture of the product of concrete in its final form and is subject to the exemption set forth in §5739.01 (E) (2) R. C. See France Co. v. Evatt, Tax Commissioner, 143 Oh St 455; Tri-State Asphalt Corp. v. Glander, Tax Commissioner, 152 Oh St 497; Cochrane v. Deener, 94 U. S. 780; and Terteling Bros., Inc. v. Glander, Tax Commissioner, 151 Oh St 236.

In the case of Terteling Bros., Inc. v. Glander, supra, the court said that coal in place in the mine and equipment used for severing it from the coal seam and transporting it to the crushing plant, and the crushing plant as a whole, were all used for the purpose of manufacturing the finished product, which was crushed coal, and therefore were not taxable.

The facts in the case of Terteling Bros. v. Glander, supra, are so similar to those in the case under consideration as to make it impossible to assign any reason for differing with the court’s decision in that case. All of the property taxed in the case we consider was situated upon property designed for use as a single unit for the purpose of manufacturing concrete, and all the transportation required was directly connected with the manufacture of the finished product and not remotely connected therewith.

The decision of the Board of Tax Appeals is unreasonable and unlawful and must be reversed and this cause is remanded to that Board with direction to issue its certificate of abatement to Boardman Supply Company in the sum of $2548.91.

NICHOLS and GRIFFITH, JJ, concur in judgment.

No. 3832.

Decided April 5, 1956.

OPINION

By NICHOLS, J.

The Tax Commissioner of Ohio assessed a sales and use tax upon property of the Boardman Supply Company specifically described as personal property purchased by the Boardman Supply Company.

The action of the Commissioner was affirmed upon appeal to the Board of Tax Appeals, and the Boardman Supply Company appeals to this court from the decision of the Board of Tax Appeals.

From the evidence it is clear to this court that all of the property sought to be taxed under the decision of the Board of Tax Appeals is an integral part of a plant designed, purchased, and operated for the manufacture of concrete according to specifications required by the purchaser thereof for particular uses, the product being assembled in what is described as a batching plant. Without each and every one of the items of personal property taxed there could be no finished product, and therefore each and every part of the property taxed was used in the manufacture of the product of concrete in its final form and is subject to the exemption set forth in §5139.1 (E) (2) R. C. For authority we cite the following cases: France v. Evatt, 143 Oh St 455; Tri-State Asphalt v. Glander, 152 Oh St 497; Cochrane v. Deener, 94 U. S. 780; and Terteling Bros. v. Glander, 151 Oh St 236.

In the latter case the court said that coal in place in the mine and the equipment for severing it from the coal seam, the equipment used for transporting the same to the crushing plant, and the crushing plant as a whole, was used for the purpose of manufacturing the finished product, which was crushed coal, and was therefore not taxable.

There is such similarity between the facts in the latter cited case and the one here as to make it impossible to distinguish any reason for differing from the court’s decision in that case. Indeed, here every item of the property taxed was located upon property designed for use as a single unit, to-wit, the manufacture of concrete, and all the transportation required was that directly connected with the manufacture of the finished product and not remotely connected therewith.

The decision of the Board of Tax Appeals is unreasonable and unlawful and must be reversed and this cause is remanded to that Board with direction to issue its certificate of abatement to Boardman Supply Company in the sum of $2548.91.

GRIFFITH, J, concurs.

PHILLIPS, PJ, concurs in judgment.


author: By STEVENS, J.

text:
    KRAUS et, Appellant, v. CLEVELAND (City) et, Appellees.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23047.
    Decided August 10, 1954.
    William J. Kraus, for plaintiff-appellant.
    Joseph H. Crowley, Dir. of Law, Charles W. White, Bert J. Fulton, Assts. Dir. of Law.
    (DOYLE, PJ, STEVENS and HUNSICKER, JJ, of the Ninth District, sitting by designation in the Eighth District.
   OPINION

By STEVENS, J.

In this taxpayer’s action, plaintiff sought a permanent injunction restraining the defendants “from expending any money, directly or indirectly, for the fluoridation of city water, or for any other purpose under Resolution 270-51, Ordinances 2061-51 and 585-52, and Board of Control Resolutions 326-52 and 327-52; that said defendants be restrained from advertising for bids or entering into and signing any contracts pursuant to said Ordinances and Resolutions; that said Ordinances and Resolutions be declared null, void, of no force and effect, and unconstitutional; that all contracts entered into by the defendant City of Cleveland, pursuant to the authority contained in said Ordinances and Resolutions, be declared void, illegal and of no force and effect * *

Defendants are the City of Cleveland, its Director of Public Utilities, and its Treasurer.

After a hearing, the trial court denied the relief sought and dismissed plaintiff’s petition. From the judgment entered, plaintiff has appealed to this court on questions of law.

By the stipulation of facts, filed therein, it was conceded that all legal steps necessary to the maintenance of a taxpayer’s action had been duly taken by plaintiff.

In the petition of plaintiff it was charged that the City of Cleveland, a municipal corporation, operated, as one of its proprietary functions, a municipal water department, and enjoyed a monopoly of the water supply system of said city. Plaintiff further said that, at all times mentioned therein, Amendments I and IV of the Constitution of the United States were in full force and effect; also Article I. Sections 1 and 7, Ohio Constitution, and Article XVIII, Section 3, Ohio Constitution. The following sections of the Ohio General Code were also set forth and relied upon: §§1252-1, 1261-16, 4404, 4413, 3616, 3619, 3646, 1286, 12694, 12796. 1296-1. 1329, 1329-1 and 12714 GC.

The following section of the Cleveland City Code was quoted and relied upon: Section 673; also Section I of the Cleveland City Charter.

The following ordinances and resolutions were set forth, which in part furnished the basis for the action filed below:

Emergency Resolution No. 270-51, which was in part as follows:

“Be it resolved by the Council of the City of Cleveland:
“Section I. That the Director of Public Utilities be requested to take the steps necessary to begin the treatment of city water with fluorides.”

Emergency Ordinance No. 2061-51, which was as follows:

“Be it ordained by the Council of the City of Cleveland:
“Section 1. That existing Órd. No. 996-51, passed May 14, 1951, be and the same is hereby repealed.
“Section 2. That pursuant to Section 167 of the Charter of the City of Cleveland it is hereby determined to make the public improvement of furnishing and installing fluoridation equipment at Division, Baldwin and Nottingham filter plants, Department of Public Utilities, by contract duly let to the lowest responsible bidder after competitive bidding for a gross price, provided that separate contracts may be made with the lowest responsible bidder for each or any combination of the component parts of said improvement.
“Section 3. That the Director of Public Utilities be and he hereby is authorized and directed to enter into a contract or contracts for the making of the above public improvement with the lowest responsible bidder after competitive bidding for a gross price. Said contract or each of them shall contain a provision that the contractor upon request of said director shall furnish a correct schedule of unit prices, including profit and overhead upon all items constituting said improvement.
“Section 4. That the cost of said improvement hereby authorized shall be paid from Fund No. 201 (Ord. No. 1642-49); Request No. 226-51.”

Resolutions of the Board of Control of the City of Cleveland were as follows:

“No. 326-52.
“Resolved, by the Board of Control of the City of Cleveland, that the bid of The Sweeny and Wise Company for the following:
“Furnishing and installing fluoridation equipment, Item 1, for the Division of Water and Heat, Department of Public Utilities, which on the basis of estimated quantities would amoiznt to forty thousand, seven hundred ninety-two and no/100 ($40,792.00) dollars, received on the 28th day of March, 1952, is hereby affirmed and approved as the lowest responsible bid, and the Director of Public Utilities is hereby requested to enter into contract for such commodities.”
“No. 327-52.
“Resolved, by the Board of Control of the Cty of Cleveland, that the bid of The John N. Murnane Company for the following:
“Furnishing and installing fluoridation equipment, Items 2 and 3, for the Division of Water and Heat, Department of Public Utilities, which on the basis of estimated quantities would amount to seventy-five thousand, two hundred ninety and no/100 ($75,290.00) Dollars, received on the 28th day of March, 1952, is hereby affirmed and approved as the lowest responsible bid, and the Director of Public Utilities is hereby requested to enter into contract for such commodities.”

Emergency Ordinance No. 585-52 was in part as follows:

“Be it ordained by the Council of the City of Cleveland:
“Section 1. That the Director of Public Utilities be and he hereby is authorized and directed to make a written contract in accordance with the Charter and Municipal Code for each or all of the following items:
“Not to exceed 700 tons of fluoride chemicals, to be purchased by the Commissioner of Purchases and Supplies upon a unit basis for the Divison of Water and Heat, Department of Public Utilities.
“Section 2. That the cost of said contract hereby authorized shall be paid from Fund 101-B-9; Request No. 119-52.”

Pursuant thereto, bids were advertised for, received and tabulated, in the manner provided by law.

Plaintiff claimed that the above ordinances and resolutions providing for the fluoridation of the municipal water supply of the City of Cleveland were unconstitutional under both the Federal and Ohio Constitutions; were in conflict with the laws of Ohio; were beyond the powers granted the City of Cleveland by its Charter; were indefinite, unreasonable, discriminatory and arbitrary on their face, because they did not set forth the exact fluoride chemical to be used, the concentration of chemical to be used, compelled all water users to drink fluoridated water, although intended to benefit only children from six to twelve years of age; were contrary to existing contracts with suburban communities, which called for the City of Cleveland to furnish pure, potable and palatable water to the citizens of said communities; that said citizens were not permitted to exercise a free choice in the use of fluoridated water; that said ordinances and resolutions violated the State and Federal constitutional guarantees of freedom of religion; provided for mass medication and medical experimentation; constituted an adulteration of food and drink contrary to the State and Federal Pure Food and Drug Acts; authorized and directed the Director of Public Utilities of said city to practice medicine, dentistry and pharmacy, contrary to the laws of the State of Ohio; and last, were invalid because they were in direct conflict with Section 673 of the Code of the City of Cleveland.

For answer, the defendants alleged that the petition did not state facts sufficient to constitute a cause of action; admitted that plaintiff was a taxpayer of the City of Cleveland, and duly brought his action in that capacity; admitted that Sections 1, 87 and 90 of the Charter of the City were substantially as set forth in the petition; admitted that the City of Cleveland was a municipal corporation, duly organized and existing under the constitution and laws of the State of Ohio, and a charter duly adopted by its electors; admitted that said City operated a water works substantially as alleged; admitted that Secton 673 of the Municipal Code of Cleveland, as amended, was substantially as set forth in the petition; admitted that Resolutions 270-51, Ordinances 2061-51 and 585-52, and Board of Control Resolutions 326-52 and 327-52, were substantially as set forth in the petition; admitted that defendant Crown will, unless restrained, execute contracts pursuant to the awards approved by the Board of Control in its Resolutions 326-52 and 327-52; and denied all and singular the allegations of the petition not admitted or qualifiedly admitted.

For a third defense, defendants said that the City of Cleveland was a duly organized municipal corporation under the Constitution and laws of Ohio and a charter duly adopted by its electors.

Defendants then set forth in extenso the following Charter provisions, or parts thereof, of the City of Cleveland: Sections 1, 2, 24, 67, 77, 78, 79, 80, 82, 99, 100, 108, 111, 143, and 167; and the adoption by the City Council of Resolutions 1869-50 and 270-51, Ordinances 996-51, 2061-51 and 585-52, and Board of Control Resolutions 326-52 and 327-52; stated that, due to the pendency of this action, defendant Crown had not executed contracts in accord with the aforesaid awards. Defendants then further alleged “that the determination of the feasibility and practicability of treating city water with fluorides has been made by the proper legislative and executive authorities of the municipality after due and extensive inquiry and consideration, including numerous and extended hearings where facts and arguments pro and con were submitted and given consideration. Said determination was in all respects made in the manner prescribed by the aforementioned provisions of the Municipal Charter. Wherefore, these defendants pray that an injunction be denied; that the petition be dismissed,” etc.

The reply of plaintiff, after certain admissions, was, in effect, a general denial of the allegations of the answer.

Appellant has set forth fifteen assignments of error, twelve of which deal with claimed error in the judgment of the lower court, two with the admission and exclusion of evidence, and the fifteenth, the catch-all assignment, “other errors apparent on the face of the record.”

The case raises the primary question as to the constitutional validity of the municipal legislation enacted by the City of Cleveland through its council.

We are met at the outset of our considerations by the pronouncement of t.ue Suprune Court of the United States in Jacobson v. Commonwealth of Massachusetts, 197 U. S. 11, 49 L. Ed. 643, where in the court, spsaxing through Mr. Justice Harlan, at p. 31 stated the following:

' If ihere is any such power in the judiciary to review legislative action in respect of a matter affecting the general welfare, it can only oe when that which the legislature had done comes within the rule that, if a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the constitution.” (Emphasis oursj

Also by the statement of the Supreme Court of Ohio, in State Board of Health, et al., v. City of Greenville, et al., 86 Oh St 1, at p. 21:

“This particular legislation * * * is designed to preserve and protect the public health and comfort, and, therefore, falls directly within the police power of the state. This power includes anything which is reasonable and necessary to secure the peace, safety, health, morals and best interests of the public. It is now the settled law that the legislature of the state possesses plenary power to deal with these subjects so long as it does not contravene the Constitution of the United States or infringe upon any right granted or secured thereby, or is not in direct conflict with any of the provisions of the Constitution of this state, and is not exercised in such an arbitrary and oppressive manner as to justify the interference of the courts to prevent wrong and oppression.”

Do the fluoridation ordinances, duly enacted by the legislative body of the City of Cleveland, acting under the Home Rule Amendment to the Constitution of the State of Ohio (Art. XVIII, Secs. 3 and 7), offend against the rules above set forth?

The City Council knew, as shown by this record, of the opposing theories, advanced by scientists and doctors, respecting the value to health of the use of fluorides in the water supply of the City of Cleveland.

It was the duty of the City Council to determine, from the conflicting theories, which would inure to the benefit and welfare of the entire community or to a fractional part thereof.

The City Council, acting in the same right as the State Legislature, resolved the question by determining that expertly controlled fluoridation of water was effective to prevent caries in the teeth of children between six and twelve years of age, and that, as to others, it had no harmful effect.

We are unable to say, from the record before us, that the legislation adopted, purporting to have been enacted to protect the public health, has no real or substantial relationship to that object, or was, beyond all question, a plain and palpable invasion of rights secured by the fundamental law.

Upon the constitutional aspects of this case, we decide against this appellant.

As to the other errors assigned, we have carefully considered each of them, and we find no prejudicial error to have intervened as to any of them.

The judgment will be affirmed.

DOYLE, PJ, HUNSICKER, J, concur.