author: By CROSSLAND, J:—

text:
    GERMAN, Plaintiff, v. MUSKINGUM VALLEY TRANSIT COMPANY, Defendant.
    Common Pleas Court, Muskingum County.
    No. 36098.
    Decided March 17, 1950.

      Lemert & Lemert, Zanesville, Collis Gundy Lane, Columbus,, for plaintiff.
    Meyer, Johnson & Kincaid, Zanesville, for defendant.
   OPINION

By CROSSLAND, J:—

The above case is before the court on demurrer to the petition on the ground that the facts therein contained do not constitute a cause of action in favor of plaintiff and against the defendant.

The petition recites that plaintiff was an elderly woman-past 71 years of age, whose ticket or passage on defendant’s bus was from Zanesville to Mt. Sterling over U. S. Highway No. 40 and who told the bus driver that she wanted off at Mt. Sterling; that through the carelessness and negligence-of defendant she was carried beyond her destination a considerable distance, to a point near the village of Hopewell, where she was discharged in darkness; that she was compelled to and attempted to walk easterly along the gravel berm of the highway to Mt. Sterling, on the north berm so as: to face approaching traffic; which was heavy both where she was discharged and where she was struck by a passing vehicle, near the edge of the berm, at a point about one-fourth to one-half mile from the point of discharge.

Do the foregoing allegations recite a prima facie case of ■cause and effect as a natural and probable sequence of events? It is elementary that plaintiff is entitled to the indulgence of every reasonable inference in favor of the sufficiency of her allegations and that, for the purpose of the court’s present consideration, plaintiff’s said allegations are accepted ■as true.

“The allegations of a pleading shall be liberally construed, -with a view to substantial justice between the parties.”

Sec. 11345 GC.

“For the purpose of testing the legal sufficiency of a petition upon demurrer, a court must indulge every reasonable inference, from the facts alleged, to sustain the petition.” Gugle v. Loeser, 143 Oh St 362, 4th syl.

The controlling issue is that of proximate cause, which is not always determined by the immediate proximity either ■of time or occurrence, but, if not, is necessarily associated with an origin giving natural and probable inception or ■causation to the moment and happening of the immediate •event, which reasonably prudent persons are obliged to anticipate under the facts and. circumstances attending at the place and occurrence of origin.

Is it natural and probable that a woman of 71, who is discharged from a public bus in darkness and heavy traffic on a national highway at a point beyond her indicated destination will, while proceeding to her intended destination on foot on the highway berm, be struck by a passing motorist at -a point 1/4 to 1/2 mile from the point of such discharge?

If the answer to the foregoing is in the affirmative, is it material or pertinent thereto to be able to determine or to determine whether or not there was liability therefor by such passing motorist, or, in other words, actionable negligence or the absence thereof on the .part of such motorist?

There is, of course, no averment in the petition concerning the liability or non-liability of the passing motorist. It is conceivable that he may be wholly unidentified and unidentifiable, any issue of his iiability or non-liability may be unresolved or unresolvable. In any event, in this case, the situation of the passing vehicle presents an unknown and uncertain factor, at least at this point. Is such fact and the omission of - affirmative allegations relating thereto fatal to the statement of plaintiff’s case?

To state the latter question another way, is it necessary or optional with plaintiff, if she otherwise recites a cause of action, to also aver or establish a cause of action against the party whose immediate act occasioned her injuries? Or, in other words, must plaintiff allege joint or concurrent liability or may she simply assert liability against one of such possible parties defendant, irrespective of whether or not joint or concurrent liability is possible, providing that she otherwise states a cause of action against the defendant named?

The court believes that the question posed in the preceding three paragraphs is answered in Larson v. Cleveland Railway Company, 142 Oh St, 20, the third syllabus of which reads as follows:

“Where a person is wrongfully injured at the hands of two or more persons acting in concert, or acting independently but concurrently in causing a single injury^ each of the wrongdoers is severally liable to such person for the full amount of the damage occasioned thereby and the person injured may enforce his claim therefor in an action against all of them jointly, or any of them severally, or any number of them less than the whole.”

The law governing the question posed concerning defendant’s separate, several or exclusive (at plaintiff’s option) liability to plaintiff, in this case, on plaintiff’s allegations in her petition, is pointed up in the following discussion of Ohio law as derived from Ohio cases cited in the foot notes thereto.

“The responsibility of an individual for his acts is not limited to their immediate effects. He is liable also for their natural and probable consequences. Nor is it material whether those consequences come from the acts alone, or from them, and subsequent independent forces operating with them, provided those forces are of a sort reasonably to be anticipated. The test is to be found in the probable injurious consequences to be anticipated, and not in the number of subsequent event and agencies that may arise. Any number of causes and effects may intervene between the first wrongful cause and the final injurious consequences, and if they are such as might with reasonable diligence have been foreseen, the last result, as well as the first, and each intermediate result, are to be considered in law as a proximate result of the first wrongful cause. The act of a third person, which intervenes and constitutes a condition necessary to the injurious effect of the original negligence, will not excuse the first wrongdoer, if such act ought to have been foreseen. The original negligence still remains a culpable and direct cause of the injury.” 29 O. Jur., 496, Sec. 79, on Negligence.

Adverting to the presumption in favor of the sufficiency of plaintiff’s petition and the assumed truth in fact of her allegations, the question of proximate cause is for the jury at this stage of the pleadings, which may or may not so remain upon and after the submission of evidence, depending upon the nature, substance and extent of the material disclosures so revealed.

The first syllabus of Texas, New Mexico and Oklahoma Coaches, Inc. v. Williams, decided by the Texas Court of Civil Appeals, August 2, 1945, and reported in 191 S. W. 2nd. 66, reads as follows:

“Generally carriers are under the duty to discharge their passengers at a safe place and when so discharged the relationship is terminated, and if discharged in an unsafe-place the relationship is terminated when the passenger, in. the exercise of ordinary care for his own safety, has had a. reasonable opportunity to reach a place of safety.”

Blashfield, Vol. 4, page 19, Sec. 2142, based on the foregoing case, says:

“The rule has been applied that where a passenger is discharged in an unsafe place, the relationship of carrier and passenger is not terminated until the passenger, in the exercise of ordinary care, for his own safety, has had a reasonable opportunity to reach a place of safety.”

The same author on page 147, Sec. 2172, again predicated on the Texas case, says:

“Where the carrier, however, has not performed its duty to provide a safe place to alight, and has discharged a passenger at an unsafe place, such as the traveled portion of a street or highway, the carrier’s liability may continue, it has been held, until the passenger, in the exercise of ordinary care for his own safety, has had a reasonable opportunity to reach a place of safety.”

Defendant’s demurrer to the petition is overruled, accordingly, and exception granted defendant, with leave to. defendant of thirty days in which to answer.


source: Caselaw Access Project

author: By MILLER, PJ.

license: Public Domain

text:
    OUTHWAITE, Estate of, In re.
    Ohio Appeals, Second District, Franklin County.
    No. 4379.
    Decided March 9, 1950.
    Paul M. Ashbaugh, Columbus, for the Massachusetts Bonding and Insurance Company, exceptor-appellant.
    H. Paul Joseph, Columbus, for Anne S. Outhwaite, executrixappellee._
   OPINION

By MILLER, PJ.

This is a law appeal from the judgment of the Probate Court overruling the exceptions filed by the Massachusetts Bonding and Insurance Company to the first and final account of Anne S. Outhwaite as Executrix of the Estate of Charles P. Outhwaite, deceased.

The bill of exceptions contains the following stipulated and agreed statement of facts which are pertinent to the questions here presented:

“It is stipulated by Anne S. Outhwaite, Executrix of the Estate of Charles P. Outhwaite, Deceased, and the Massachusetts Bonding and Insurance Company, Exceptor to the Pinal account of said executrix, that in the hearing upon said exceptions the record may show the following agreed statement of facts:

Charles P. Outhwaite died testate on May 9, 1944, leaving Anne S. Outhwaite, his widow, as his only legatee and devisee. On May 17, 1944, Anne S. Outhwaite, the widow, was appointed the Executrix of the Estate of Charles P. Outhwaite. Anne S. Outhwaite received Proof of Claim, dated May 18, 1944, from The Ohio National Bank of Columbus on a note in the principal sum of Thirteen thousand five hundred dollars ($13,500.00), signed by Charles P. Outhwaite. Copy of the note was presented with the claim showing the due date to be June 8, 1944. Said claim was allowed on May 19, 1944. Among the collateral on this note was a total of Six hundred forty (640) shares of Common Stock of the Buckeye Steel Castings Company, which stock had been inventoried in the Estate of Charles P. Outhwaite with no mention of the fact that the stock was pledged as collateral security on the note herein referred to. Before June 8, 1944, Anne S. Outhwaite consulted Singleton P. Outhwaite, who was her attorney and counsel at the time, and he advised her to take up said note on the due date out of her own funds so that interest would be stopped, there not being enough cash in the estate at the time to pay said note, and assured her that she could be reimbursed. Anne S. Outhwaite drew her own personal check in the amount of Thirteen thousand five hundred dollars ($13,500.00), payable to The Ohio National Bank. This check was presented to The Ohio National Bank and the note and securities referred to were delivered to Anne S. Outhwaite. Anne S. Outhwaite at this time was not aware that the estate was insolvent. Anne S. Outhwaite eventually sold the stock and realized from the sale of said stock, as well as the dividends, the sum of Twelve thousand three hundred forty-nine dollars eighty-six cents ($12,349.86), and obtained from the estate the sum of One thousand one hundred fifty dollars fourteen cents ($1,150.14), making a total of Thirteen thousand five hundred dollars ($13,500.00).”

The trial court found that the executrix, Anne S. Outhwaite, paid the note held by the Ohio National Bank on its due date out of her personal funds and that she later reimbursed herself in the amount of $13,500.00; that the security held by the bank on said note was 640 shares of the common stock. of the Buckeye Steel Castings Company which was in the name of Charles P. Outhwaite; that Anne S. Outhwaite was the widow of the deceased and devisee under the will, and therefore had a direct interest in said securities; that she was either a legal or equitable assignee of the note and collateral securing the same and that she should be reimbursed in the sum of $12,349.86, which was the amount realized from the sale of the securities and that she restore to the estate the sum of $1150.14 which was the excess over the sale price of the securities which she had received from the estate.

The appellant is contending that the Court erred in finding that Anne S. Outhwaite became either a legal or equitable assignee upon her paying the note at the Ohio National Bank. The appellant admits that prior to the enactment of §10506-49 GC a widow who was administratrix of her husband’s estate could pay indebtedness of the estate out of her individual funds and be subrogated to all the rights of the creditors. 11 O. L. R., 373. But it is urged that §10506-49 GC prohibits such an advancement unless it “has been expressly authorized by the instrument creating the trust or when the Probate Court shall so approve.” This requirement was met when the Probate Court approved the final account. At that time it had all of the facts before it and was cognizant of the entire transaction. Had fraud intervened or the action been detrimental to the best interests of the estate it would not have .been so approved. Sec. 10506-39 GC is in point with regard to the hearing on the account which provides in part:

“At the hearing upon the account, the Court shall consider and determine all matters relating to such account and the manner in which the fiduciary has executed his trust, including the investment of trust funds, and may order the account approved and settled or make such order as the court may deem proper.”

A somewhat parallel situation is found in the case of McIntire v. McIntire, 65 Oh Ap 143. At page 147 Phillips, J., says:

“In the instant case the approval of the Court was not obtained prior to the deposit but the court did approve the action of the guardian in that respect by approving his final account.”

We are of the opinion that since Anne S. Outhwaite was subrogated to all of the rights of the bank she was entitled to reimburse herself to the extent of $12,349.86 as approved by the Probate Court.

We have examined the well considered opinion of Judge McClelland and are in full accord with the principles of law therein announced. We find no error in the record and the judgment is ordered affirmed.

HORNBECK and WISEMAN, JJ, concur.


author: By McNAMEE, J:—

text:
    ADAMS, Plaintiff-Appellee, v. NIBBOR REALTY COMPANY et, Defendants-Appellants.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 21686.
    Decided May 8, 1950.

      Benesch, Friedlander & Mendelsohn, Cleveland, for plaintiffappellee.
    Richard DeNobel, Cleveland, for defendants-appellants.
   OPINION

By McNAMEE, J:—

The issue presented by this appeal relates to the tax title of a purchaser of forfeited land theretofore registered under the Torrens Title Law (§8572-1, §8572-118 GC) and may be stated thus:

Where a purchaser at a tax sale theretofore registered under §8572-1 GC, et seq., receives a deed from the County Auditor and thereafter in proceedings in the Court of Common Pleas seeks to have the title registered in her, — is it error for the court to refuse to register said tax title subject to future installments of assessments, for the reason that notice of the legislation authorizing the assessments and a list of the lands to be assessed was not filed with the County Recorder as required by §8572-56 GC, which was in effect at the time the assessments were levied?

From the agreed statement of facts the following are recited as sufficient to an understanding of the decision reached herein.

Prior to 1925, the title to the land in question was registered pursuant to §8572-1 GC et seq. Between the years 1925 and 1930 the Village of Parma (hereinafter called Parma) levied assessments on the land to defray the cost of sewer and water improvements installed in Ridgewood Avenue on which the land abuts. Bonds were issued in anticipation of the collection of the assessments. These assessments were certified to the Auditor of Cuyahoga County and placed upon the tax duplicate for collection, but Parma failed to file with the County Recorder notice of the passage of the assessment ordinance and other pertinent information as then required by §8572-56 GC. In 1938 Parma refunded its outstanding assessment bonds and reassessed and re-spread the unpaid portion of said assessments and the remaining future installments over twenty-eight annual installments from 1938 to 1965, inclusive. The re-assessments were certified to the County Auditor for collection. In 1948, the land was forfeited to the State for nonpayment of taxes, assessments, penalties and interest and pursuant to appropriate proceedings was sold to the plaintiff at tax sale on June 7,1948. Prior to the sale the County Auditor advertised the same in booklet form as follows:

“10826-Nibbor Realty Company, The: M 443-15-12; SL 61; Ridgewood Gardens Subd; Blake Tr. O. L. 5; 40 ft. front; st. Ridgewood Ave., near W. 60 St. V $220. DT 392.84. FA 114.90 (Torrens).”

Before receiving the bids at public auction, the Auditor caused this advertisement to be read in full. At the time of the sale plaintiff had actual knowledge that the improvements had been installed; that the cost thereof had been assessed against the land and duly certified to the County Auditor of collection and listed upon the tax duplicate. She also knew that the sum of $114.90 following “FA” as it appears in the advertisement, represented the amount of future installments of re-assessments upon the land. Upon receiving the Auditor’s deed, plaintiff instituted this action in the court of common pleas to register the title to the land under §8572-1 GC et seq., and prayed that said title be registered free of all liens and encumbrances.

Parma as defendant, filed its answer and a cross-petition in which it asked that the court register plaintiff’s title subject to the lien of the future installments of the re-spread assessments. The court ordered that the title be registered free of all encumbrances except taxes and assessments “not abated by the sale” but dismissed Parma’s cross-petition. It is this latter action of the court that is assigned as error.

Sec. 8572-56 GC in effect at the time the assessments were levied, required as a prerequisite to the imposition of an assessment lien upon registered land that notice of the legislation levying the assessments and a list of the lands assessed or to be assessed be filed promptly with the county recorder.

In Curry v. Lybarger, 133 Oh St 55, it was held that the validity of assessment liens levied prior to the repeal of §8572-58 GC (in 1937) were conditioned upon compliance with the terms of that section. The assessments here involved being levied prior to the repeal of §8572-56 GC, must be deemed not to have been valid liens upon the registered land in question prior to its forfeiture to the state.

About two years after its decision in the Curry case, the Supreme Court in Amrich v. Boyle, 136 Oh St 325, held that notwithstanding the failure of the municipality levying assessments upon registered land to comply with §8572-56 GC, an owner who petitioned for the improvements for which the assessments were levied was estopped from preventing their collection by the county treasurer.

In Shaker Corlett Land Co. v. Cleveland, 139 Oh St 536, the principle of the Amrich case was extended to include the immediate grantee of a petitioning owner of registered land and the court held that such a grantee was precluded from asserting the invalidity of the assessment liens although in that case also, there was a failure of the taxing authority to comply with the requirements of §8572-56 GC.

In Lauriel Hill Land Co. v. Collister, 43 Oh Ap 229, this court held that the owner of registered land, whose deed from a private corporation contained a reservation of right in the grantor to petition for improvements,' was estopped to deny the validity of assessments levied in payment of improvements petitioned for by the grantor. The foregoing authorities illustrate the principle that under appropriate circumstances Courts will apply the doctrine of equitable estoppel in denial of a claim of the owner of registered land, that assessment liens are invalid because of the failure of the taxing authorities to comply with §8572-56 GC. Indeed such is the weight accorded this equitable principle that in Groene v. Boyle, 141 Oh St 553, the three dissenting members of the court were of the opinion that its application ought to be extended to a case where the owner of registered lands did not petition for the improvements but merely “stood by” and allowed them to be made.

Upon similar equitable principles the common pleas court of Cuyahoga County in Robinson v. Euclid, 34 O. O. 94, held that a purchaser at a tax sale of land theretofore registered under the Torrens Act was bound by the terms of the auditor’s deed which provided that the property was subject to taxes and assessments and in addition recited that the grantee “assumed and agreed to pay the taxes and assessments.” The decision of the common pleas court in the Robinson case was affirmed by this court without opinion and was dismissed by the Supreme Court because of the failure of appellant therein to file a proper bill of exceptions. 146 Oh St 627. In the Robinson case there was no legislative sanction for the inclusion in the tax deed of the exceptions of taxes and assessments, §5762 GC, as then in effect, provided that a grantee of an auditor’s deed at tax sale was invested with a new and perfect title, free from all liens and encumbrances, “except such easements and covenants running with the land as were created prior to the time the taxes and assessments for the non-payment of which the land was forfeited became due and payable.”

Whether the action of the auditor in enlarging the exceptions in the tax deed in the Robinson case beyond the scope of §5762 GC, to include taxes and assessments was within his authority is open to question. But there is little doubt of the correctness of the decision that held the grantee of the tax deed to be estopped to deny the validity of the exceptions included therein.

The foregoing cases furnish ample authority for the application here of equitable principles in denial of plaintiff’s claim that the land purchased at tax sale is not subject to the lien of future installments of special re-assessments. At the time she purchased the land, plaintiff knew the improvements had been made; she knew the amount of future installments of the re-assessments; she knew the land was to be sold subject to the lien of such future installments and made her bid for the purchase of the land in the light of such knowledge. If it were not that equitable principles otherwise applicable are superseded by a controlling principle of law we would be constrained to hold that plaintiff is estopped to deny the validity of the exceptions contained in her tax deed.

The principle of law that governs here derives from the nature of the title acquired by a purchaser at a forfeited land sale. A tax title is a new and independent title. “It has nothing to do with the previous chain of title; does not in any way connect itself with it; it is a breaking up of all previous titles.” Gwynne v. Niswanger, 20 O. 556; Jones v. DeVore, 8 Oh St 430; Kahle v. Niseley, 74 Oh St 328, Cech v. Schulz, 132 Oh St 353.

Title to land acquired at a tax sale has its source in the state. The state alone may impose reservations and exceptions qualifying the new and perfect title invested in the purchaser. This the state has done in §5762 GC, which as amended effective Oct. 11, 1945, governs here. The pertinent provisions of that section read:

“When a tract of land has been duly forfeited to the state and sold agreeably to the provisions of this chapter, the con■veyance of such real estate by the county auditor shall extinguish all previous title thereto and invest the purchaser with .a new and perfect title, free from all liens and encumbrances, •except taxes and installments of special assessments and re.assessments not due at the time of such sale and except such •easements and covenants running with the land as were •created prior to the time the taxes or assessments for the .nonpayment of which the land was forfeited, became due and payable.”

There can be no doubt that plaintiff as grantee of a tax •deed took title to the land subject to taxes and the future in.stallments of special reassessments. The principle that a tax deed extinguishes all previous titles operates as well to •extinguish all liens and encumbrances against the title of the former owner except such as the state may decree shall constitute exceptions to the new title conveyed by it to the purchaser at a tax sale. As above noted, the earlier form of •§5762 GC, in effect prior to Oct. 11, 1945, authorized no •exceptions in the auditor’s deed in favor of taxes and future installments of reassessments. That section was construed an State ex rel Zangerle v. South Euclid, 145 Oh St 433, decided June 25, 1945, where it was held that under §5762 GC, .as then in effect, the auditor’s deed of forfeited lands “inwests the purchaser with a new and perfect title free from •all 'liens of special assessments and reassessments.” At page •437 of the opinion, the court said:

“All property passed to the purchaser free from the lien •of installments falling due in the future.”

Within four months after the Supreme Court decided the 'last cited case, the General Assembly amended §5762 GC, 'to authorize the inclusion in the auditor’s deed of the additional exceptions of “taxes and installments of assessments •and re-assessments not due at the time of sale.” So, in the instant case where §5762 GC, as amended governs, it must ■be held that the land passed to the plaintiff subject to the lien of installments of reassessments “falling due in the ■future.”

The assessments and reassessments in question are not invalid. They were merely inoperative as liens against the registered title of the former owner. These assessments •and reassessments being valid, it was competent for the ■state in conveying title to the forfeited land to make the ■future installments thereof a lien upon the new title of plaintiff as purchaser at the tax sale. The statutes governing forfeited land sales apply with equal force to registered and unregistered lands alike. In conveying title to forfeited registered land the auditor is not. bound by the register. The title-conveyed by the auditor is adverse to that of the former owner of the registered title. To register his new title the-grantee of the tax deed must institute proceedings under §8572-58 GC. Such registration must record the new title, together with the exceptions contained in the tax deed. The-purchaser can acquire no better title than the auditor is authorized by statute to convey. The grantee of the tax deed is not a bona fide purchaser of registered land within the-meaning of the Torrens Title Law and the provisions of that Act designed to protect such a purchaser against liens not disclosed upon the register have no application in the case of a sale of forfeited land.

For the reasons hereinabove assigned, it is ordered that the title to the land be registered in plaintiff subject to the future installments of re-assessments as the same appear on the auditor’s duplicate.

While we are of the opinion that in order to remove all doubt a decree should be entered as indicated, there is support in the Torrens Act itself for the view that the future-installments are effective as liens against plaintiff’s property without being noted upon the register. As noted in Curry v. Lybarger, supra, at the time §8572-56 GC was repealed in 1937, §8572-25 and 8572-89 GC, were so amended as to include taxes and assessments liens within the exceptions not covered by the Torrens Certificate. Thus, all valid assessments levied since 1937 are effective as liens against registered land without further action under the Torrens Law. Likewise all land first-registered since 1937, is subject to the liens of valid assessments without their being noted on the register. Strictly-speaking, an assessment lien operates upon a title to the land rather than on the land itself. The registration of plaintiff’s tax title under §8572-58 GC, brings a new and independent, title not connected with any former title, upon the register and by virtue of §8572-25 and §8572-89 GC, which obviate-the necessity of their being noted on the register, the future installments of assessments are effective as liens against plaintiff’s title.

The judgment is reversed for error of law in dismissing defendant, City of Parma’s cross-petition and the cause is-remanded for further proceedings according to law. Exc.. Order see journal.

SKEEL, PJ, HURD, J, concur.


author: By ROSS, PJ.:

text:
    TAG, Plaintiff-Appellant, v. LINDER, Defendant-Appellee.
    Ohio Appeals, First District, Hamilton County.
    No. 7164.
    Decided October 31, 1949.
    Sol. Goodman, Albert R. Fingerman, Cincinnati, for plaintiff-appellant.
    Paul J. Crone, Cincinnati, for defendant-appellee.
   OPINION

By ROSS, PJ.:

Appeal upon questions of law from a judgment of the Court of Common Pleas, dismissing the action of plaintiff, at the close of the evidence.

The plaintiff brought an action against his landlord alleging a rental charge in excess of a maximum permitted by and under the provisions of an act of Congress, and praying for the recovery and penalties permitted thereunder. The plaintiff was in error in that he predicated his request for relief under an act of Congress enacted in 1942, later repealed, when under the Act of 1947 he was entitled to such relief if the facts alleged in his petition were sustained by evidence. The trial court concluded and found that it was without jurisdiction to entertain the action because of the mistaken conception of the plaintiff as to the appropriate act of Congress and dismissed the petition of plaintiff solely upon that ground.

In taking such action the trial court was in error.

As far as the allegations of the petition identified a particular act of Congress as furnishing a remedy, such allegations amounted to mere conclusions of law and had no place in the petition and should be treated as surplusage.

The issues in an action are created by the factual allegations in a petition.

In Schaefer v. First Natl. Bank, 134 Oh St, 511, at page 529 of the opinion it is stated:

“When the plaintiff pleads all the facts the court should give him the relief he -is entitled to, whether in equity or by declaratory judgment; even the prayer is not controlling. Riddle & Parker v. Roll, 24 Oh St, 572; Tiffin Glass Co. v. Stoehr, 54 Oh St, 157, 163, 43 N. E. 279; State, ex rel. Masters v. Beamer, 109 Oh St, 133, 151, 141 N. E., 851.”

See, also: Cook v. Crider, 63 Oh Ap, 12, at page 16.

In Allen v. Railway Co., 57 Oh St, 79, at page 85 of the opinion it is stated:

“A petition which contains all the facts necessary to bring the plaintiff within the rights granted by statute, is good, even though it avers other, but not contradictory, facts, not necessary to the right of recovery. In such cases the additional facts will be regarded as surplusage, and need not be established on the trial.”

Section 58, “Pleading” Vol. 31, O. Jur., p. 597, states:

“It is an elementary principle of Code pleading that, in •order to sustain a cause of action, all of the operative ultimate facts essential to the cause of action must be pleaded; that is, such facts as, under the substantive law, operate to invest one with a right, or- divest another of a right, or to show a wrongful interference with an existing right. It is, however, neither necessary nor proper to state the legal •obligation; it is only necessary to plead the operative facts which show that the pleader is entitled to the relief sought, •even though the relief sought may be predicated upon one or more grounds; the pleader must not characterize the facts alleged, or classify them under the respective nominal grounds of such relief, although in practice the custom is, in nearly all pleadings, to characterize the operative facts and classify them. The pleading is addressed to the court, and it becomes the duty of the court to add the law to the operative facts. Even though, as stated elsewhere, it is an elementary principle in pleading that where a statute, upon certain conditions, confers a right or gives a remedy unknown to the common law, the party asserting the right or availing himself of the remedy must, in his pleadings, bring himself or his case clearly within the statute, it is well settled that the pleader should state only the operative facts which bring the case within the rule or duty created by the statute. It is unnecessary to plead a public statute of Ohio or of the United States. In other words, a petition states a good cause of action if its allegations can be fairly construed to show any dereliction of the duty defined by the .statute, proximately resulting in injury and damage to the plaintiff, without pleading the terms of the statute. A petition which contains all the facts necessary to bring the plaintiff within the rights granted by statute is good even though it avers other, but not contradictory, facts, not necessary to the right of recovery. In such cases the additional facts will be regarded as surplusage, and need not be established on the trial.”

See, Warner v. Industrial Commission, 69 Oh Ap, 374, at 384.

In Gerend v. City of Akron, 137 Oh St, 527, at page 532 of the opinion Section 58 (Id.) is quoted with approval.

Section 203 (a) of The Housing and Rent Act of 1947, as amended and in force at the time the cause of action stated in the petition arose, provides:

“After the effective date of this title, no maximum rents shall be established or maintained under the authority of the Emergency Price Control Act of 1942, as amended, with respect to any housing accommodations.”

Section 204 of such Act provides in part:

“(a) The Housing Expediter shall administer the powei's, functions, and duties under this title; and for the purpose of exercising such powers, functions, and duties, and the powers, functions, and duties granted to or imposed upon the Housing Expediter by title 1 of this Act, the Office of Housing Expediter is hereby extended until the close of March 31, 1949.

“(b) (1) Subject to the provisions of paragraphs (2) and (3) of this subsection, during the period beginning on the effective date of this title and ending on the date this title ceases to be in effect, no person shall demand, accept, or receive any rent for the use or occupancy of any controlled housing accommodations greater than the maximum rent established under the authority of the Emergency Price Control Act of 1942, as amended, and in effect with respect-thereto on June 30, 1947;”

Section 205 (Id.) provides in part:

“Any person who demands, accepts, or receives any payment of rent in excess of the maximum rent prescribed under section 204 shall be liable to the person from whom he demands, accepts, or receives such payment, for reasonable attorney’s fees and costs as determined by the court, plus liquidated damages in the amount of (1) $50, or (2) three times the amount by which the payment or payments demanded, accepted, or received exceed the maximum rent which-could lawfully be demanded, accepted, or received, whichever in either case may be the greater amount: Provided, That the amount of such liquidated damages shall be the amount of the overcharge or overcharges if the defendant proves that the violation was neither willful nor the result of failure to take practicable precautions against the occurrence of the violation. Suit to recover such amount may be brought in any Federal, State, or Territorial court of competent jurisdiction within one year after the date of such violation.”

It would appear, therefore, that the plaintiff stated a cause of action, of which the court had jurisdiction of the subject-matter, and that the petition of plaintiff was erroneously dismissed.

Judgment reversed and the cause remanded for further proceedings according to law.

ROSS, PJ, HILDEBRANT & MATTHEWS, JJ, concur in syllabus, opinion & judgment.


author: By CROSSLAND, J: :

text:
    COULTER et, Plaintiffs, v. SEYBOLD et, Defendants.
    Common Pleas Court, Muskingum County.
    No. 36248.
    Decided June 20, 1949.
    Meyer, Johnson & Kincaid, Zanesville, for plaintiff.
    Don J. Hollingsworth, Charles S. Leasure, Jay B. Zellar, Zanesville, for defendant.
   OPINION

By CROSSLAND, J: :

Plaintiffs in their petition claim that a restrictive covenant against the storage or sale of intoxicating liquor was contained in the deed to Clarence and Maude Seybold for Lot No. 24 of Home Acres Allotment, Palls Township, Muskingum County, Ohio, and also “in the deeds to other lots in said Allotment and was a part of the general restrictions for the use and benefit of the purchasers and owners thereof.” Defendants deny that such restrictive covenant “was a part of a general plan of restriction” for said use and benefit, and claim that defendants Seybold lacked actual knowledge of such covenant in the deed to them and also that its presence therein was at variance with their contract of purchase of said lot.

The deed of Guy C. Fergus to Clarence O. Seybold and Irene Seybold, dated August 4, 1947, for said Lot No. 24 contains a covenant providing that “It shall not be used — for the storage or sale of intoxicating liquor.”

Said deed was delivered subsequent and pursuant to a contract of sale between the parties, dated September 5, 1945; said contract of sale not containing the aforesaid restrictive covenant.

The Seybold deed was delivered to The Mutual Federal Savings and Loan Association of this city, from where it was filed for public record August 20, 1947, the Seybolds being present at said institution at the time of and in connection with said deed delivery, which was then and thereby available for their inspection and rejection or acceptance, and which thereafter was filed for record with either their active or passive consent. If the grantee assumes or retains control of the property, this affords strong, if not conclusive, evidence of his acceptance of the deed. Thompson on Real Property, Vol. 7, page 641, sec. 4172.

“If a deed is delivered to a third person for a purchaser who has paid the price, and such third person is authorized to receive the deed, there is a presumption of delivery, though the agent never delivered the deed to his principal.”

Thompson, supra, pag 642, sec. 4174.

Regarding knowledge by the Seybolds of the contents of their said deed by virtue of their receipt and acceptance of it, such knowledge by them, legally, even if not actual, is imputed.

“The conveyance is constructive notice of its contents, including all recitals of restrictive covenants and reservations.”

Thompson on Real Property, Vol. 8, pages 373-4, sec. 4497.

Since the foregoing applies equally to the plaintiffs and all other title holders in said allotment, they likewise are charged with notice and knowledge of the contents of their respective deeds. As a matter of law, therefore, plaintiff Coulter knew that his deed for Lot No. 107 contained no covenant against the sale of intoxicating liquor, and since it was acquired in his behalf in October, 1945, he was acquainted with such fact before the Seybolds acquired title to their property, and, a fortiori, before operation of the business herein sought to be enjoined, and at the time, if not before, such plaintiff purchased his lots 112 and 113.

What is true concerning lot purchases of plaintiff Coulter is likewise true concerning all lot purchases of plaintiff Owens and plaintiffs’ witness Julia Smith, wife of plaintiff Smith, whose interest in Lots 94 and 95 is shared with her.

Plaintiffs claim the right to bring this action, as well as predicating a part of their cause of action, upon the following paragraph of the Seybold deed:

“The restrictions of this deed and all other deeds to the lots of Home Acres Allotment are for the joint benefit of each and every one, and for all owners of lots in the Addition, and any owner of a lot in said Allotment is hereby given the right to enforce restrictions herein contained, and the owners hereof are given the same right as to any and all lots in the Allotment.” (Emphasis by the court.)

Certain situations are obvious among the parties hereto, as well as with respect to numerous other owners within the Allotment. The Seybold deed of August 4, 1947, did not and could not confer upon them authority or power in derogation of rights of property use not restricted in prior deeds to plaintiffs Coulter, Owens and Smith, for Lots 107, 12 and 96, respectively. Nor could it do so against numerous other lots in said Allotment deeded before said date and not containing a liquor restriction.

In as much as the Seybolds could not enforce the covenant in their deed against such other lots so as to protect themselves in their use of Lot No. 24 from the use of such other lots for the sale of intoxicating liquor, may such restrictive covenant in their deed be binding upon them, particularly at the instance of owners not so bound?

Regardless of whether the Seybold contract of purchase has or has not relationship to this case in any other respect, its date did mark and determine their purchase of said Lot No. 24 from Guy Fergus, which their deed therefore later consummated, and which contract also provided that: “No —other agreement — not expressed in this contract will be recognized or binding upon either Buyer or Seller.”

The further question therefore arises — did said purchasers, the Seybolds, buy with reference to a genei’al plan, wherein the covenant not to sell intoxicating liquor entered into the consideration of their purchase and also wherein such covenant was entered into as part of a general plan? The answer is “NO.”

The rule is summarized on page 94, vol. 7, of Thompson on Real Property, last sentence of first paragraph of section 3608:

“The right of grantees from the common grantor to enforce, inter sese, covenants entered into by each with said grantor, is confined to cases where there has been proof of a general plan or scheme for the improvement of^ the property, and its consequent benefit, and the covenant has been entered into as part of a general plan to be exacted from all purchasers, and to be for the benefit of each purchaser, and the party has bought with reference to such general plan or scheme, and the covenant has entered into the consideration of his purchase.” (Emphasis by the court.)

“What Shows General Plan of Development. Frequently, the test of the right of one lot owner to enforce restrictions against another lot owner depends on whether these restrictions are uniform for all lots similarly situated, and a part of the general plan for the whole tract, and it is important to determine whether restrictions are uniform within this rule. Restrictions are not to be regarded as uniform within its meaning, where a landowner subdivides and sells some lots without any restrictions, some by deeds placing the building line 50 feet from the sidewalk, and others restricting it to 40 feet, while deeds to others contain the condition that but one dwelling house shall be erected or that liquor shall not be sold, or that the lots are to be used for residence purposes only.” (Emphasis by the court.)

13 O. Jur., 993, section 173.

“The question of the existence of a general plan is one of fact, to be determined with reference to the particulars and conditions of the laying out and sale of the lots so indicated either verbally or in writing.”

Tiffany “Real Property,” 3rd Ed., Vol. 3, page 505, sec. 868.

“Where the owner of land subdivides and sells it to lot purchasers, with restrictions in the deeds as to the purpose for and manner in which the land may be used, one lot purchaser can not enforce such restrictions against another purchaser, unless the restrictions are uniform for all the lots similarly situated, and part of a general scheme for the improvement of the whole tract.” (Emphasis by the court.)

Shubert v. Eastman Realty Co., 1 O. C. C. N. S., 585, 1st syllabus.

“Where the right to enforce a restriction contained in the conveyance as to the use of the property conveyed is doubtful all doubts should be resolved in favor of the free use thereof for lawful purposes by the owner of the fee.”

Hunt v. Held, 90 Oh St, 280, 1st syllabus.

Under the evidence and the law the court considers that it can arrive at no other proper conclusion and decision in this case than to refuse and dismiss the petition for injunction at plaintiffs’ costs and to direct that an entry be prepared accordingly by prevailing counsel fully incorporating the within findings of fact and law, and submit the same to opposing counsel for their consideration, and then to the Court for its approval before filing; with exceptions to plaintiffs.


author: By WISEMAN, J.:

text:
    STATE, Plaintiff-Appellee, v. MERRICKS, Defendant-Appellant.
    Ohio Appeals, Second District, Shelby County.
    Nos. 152 & 153.
    Decided October 15, 1949.
    Rodney R. Blake, Pros. Atty., Sidney, for plaintiff-appellee.
    Brooks, Capelle & Young, by Louis C. Capelle, Cincinnati,, for defendant-appellant.
   OPINION

By WISEMAN, J.:

Both cases have been submitted on motions for leave to appeal. The same facts obtain and the same questions are presented in both cases.

The defendant failed to perfect an appeal as a matter of right within thirty days. Sec. 13459-4 GC, in part provides “After thirty days from such sentence and judgment such appeal may be filed only by leave of the Court or .two of the judges thereof.” This Court, in State of Ohio v. McGahan, Court of Appeals of Franklin County, Ohio, No. 4310, (opinion dated October 6,1949), 86 Oh Ap 283, in commenting on the authority of the Court under this section, held “Obviously this provision was not intended to confer on the Court the authority to grant leave to appeal without a showing of good cause. In determining whether leave to appeal shall be granted or refused the Court is required to exercise a sound discretion. In our opinion leave to appeal should be granted only where, if an appeal were refused, a miscarriage of justice might result. There must be some impelling reason which would require the Court to act.”

Counsel for the State contends that the Clerk of Common Pleas Court had no authority to file in this Court a transcript of the proceedings in the trial court and that no copy of the notice of appeal was filed in the Appellate Court as required by §13459-3 GC. State v. Jarcho, 65 Oh Ap 417, 422, 30 N. E. (2d) 444. In the instant case the record shows that the motion for leave to appeal was filed in this Court on August 31, 1949. A notice of appeal was filed in the trial court on September 23, 1949. The transcript containing the notice of appeal was filed in this Court on September 24, 1949. Had no transcript been filed this Court undoubtedly would have ordered the transcript before passing on the motion in determining whether or not good cause was shown for granting leave to appeal. Since the notice of appeal is a part of the transcript a copy of such notice of appeal is properly filed in this Court in compliance with the provisions of §13459-3 GC.

The appeal is from “an order revoking defendant’s probation in the above entitled cause.” The motions for leave to appeal are both based on three grounds: First, counsel for defendant entered the case after the customary time for appeal had elapsed; second, defendant was not given a judicial inquiry on the revocation of his probation, as required by the statutes of Ohio, (§§13452-1 to 11 GC), the record failing to show that the defendant was served with notice of the charges; neither was there any evidence produced at the judicial inquiry, except the reading of the charges by the prosecutor and the reading of the probation officer’s report; third, assuming there was a judicial inquiry, the prosecutor’s statements and the probation officer’s report were used as the basis for revoking the probation in two separate cases.

The first ground of the motion is not well taken for the reason that the record shows that the defendant was represented by counsel at the hearing at which time the court revoked the order suspending the execution of the sentence. The fact that the defendant has employed other counsel does not amount to a showing of good cause for granting leave to appeal.

The second ground of the motion in substance is that the defendant was not given a “judicial inquiry” at the time the sentence was revoked. It appears that at the time the defendant pled guilty to the charges of assault and battery the court sentenced him in both cases to six months in the Dayton Workhouse and then suspended the execution of the sentences for a period of five years on certain terms and conditions which are set forth in the order of the court. Sentence was pronounced on September 22, 1948. The record of the hearing at which the execution of the sentence was revoked shows that the defendant was brought before the court on June 13, 1949; that the defendant was represented by counsel; that the court inquired of the defendant if he had violated the terms and conditions of the order dated September 22, 1948; that both the prosecutor and counsel for defendant made extended statements to the court. The judgment entry recites that “It appearing to the satisfaction of the court, upon the evidence adduced, that the defendant has violated the terms and conditions imposed at the time such sentence was suspended, it is, therefore, ordered and adjudged that said suspension of sentence be and it is hereby revoked.”

Counsel in their briefs agree that the court acted on the report of the probation officer and the statement of the prosecuting attorney. Counsel for defendant contends that the record does not disclose that a “judicial inquiry” was conducted and cites State v. Skypeck, 77 Oh Ap 225, 65 N. E. (2d) 75, which held that “Before the court may terminate an order of probation and sentence the defendant upon such judgment or plea, the defendant is entitled to be heard upon a ‘judicial inquiry’ in open court on the question of whether he has failed to meet the conditions of the order of probation.” We think the record in the instant case shows that a “judicial inquiry” as defined in State v. Skypeck was conducted. On P. 234 the court in that case held “The determination of whether the defendant, by his conduct, violated the requirements of his probation is under §13452-7 GC, to be determined by a ‘judicial inquiry.’ The defendant must be afforded a reasonable opportunity to be heard. This does not require the formality of a trial but it does require the presentation of the facts in open court so that the court, in the exercise of sound discretion, may deal justly with the defendant.” The record shows that an informal hearing was held in open court, at which time the defendant was present in person and with counsel, that he was given an opportunity to state whether he had violated any of the terms and conditions under which the execution of the sentence had been suspended and upon the evidence adduced the court found that the defendant had breached the terms and conditions of the order and on the basis of this evidence revoked the order of suspension. However, the Skypeck case is distinguishable from the case at bar in that the defendant in that case was not sentenced after entering a plea of guilty but was placed on probation under the provisions of §13452-1 GC. The court in the Skypeck case, in determining whether the court had conducted a judicial inquiry, applied the provisions of §13452-7 GC, which in part provides “When the defendant is brought before the judge or magistrate, such judge or magistrate shall immediately inquire into the conduct of the defendant, and may terminate the probation, and impose any sentence which might originally have been imposed, etc.” These sections are found in the chapter on probation and apply where the defendant has been placed on probation and the imposition of sentence has been deferred. In the instant case the defendant was sentenced and the execution of the sentence was suspended. It is apparent that the court in the case at bar acted under authority of §13451-8b GC, which provides “Any court sentencing a person for misdemeanor forbidden by statute or ordinance, may at the time of sentence remit the same or suspend such sentence in whole or in part, upon such terms as he may impose.” Under this section the trial court is vested with a discretion in fixing the terms and conditions of the suspension. State v. Brewer, 75 Oh Ap 329, 333, 62 N. E. (2d) 174. Likewise the court is vested with authority in the exercise of a sound discretion to revoke such suspension on breach of the terms and conditions imposed. The evidence presented to the trial court constituted a breach of the terms and conditions of the suspension.

The third ground of the motion is that the evidence presented was used as a basis for revoking the order in two separate cases. From the record it appears that these two cases are related; the defendant pled guilty to the two charges on the same day and the sentences were imposed on the same day. The trial judge had under consideration the revocation of the execution of the sentence in both proceedings and since the terms and conditions of the order suspending the execution of the sentence were the same in both cases, the evidence presented would be applicable to both cases.

In our opinion the defendant has not shown good cause why this Court should sustain the motions for leave to appeal. Motions overruled.

MILLER, PJ, and HORNBECK, J, concur.


author: By HURD, J:

text:
    HILLYER, Plaintiff-Appellee, v. EAST CLEVELAND (City), Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 21540.
    Decided May 22, 1950.

      Payer, Bleiweiss, Crow & Mollison, Cleveland, for plaintiffappellee.
    McKeehan, Merrick, Arter & Stewart, Cleveland, for defendant-appellant.
   OPINION

By HURD, J:

This action in tort originated in the Court of Common Pleas of Cuyahoga County wherein a jury verdict was returned in favor of the plaintiff in the sum of $8,000.00 and judgment entered accordingly.

Defendant’s motions for judgment notwithstanding the verdict and for a new trial, having been filed and overruled, an appeal was perfected to this court on questions of law.

The issues below were joined upon the pleadings, consisting of the petition of plaintiff, the amended answer of defendant and the reply of plaintiff. In her petition the plaintiff alleged in substance that on the 2nd day of August, 1945, at about 2 P. M., as she was walking in a southerly direction upon the sidewalk on the easterly side of Hayden Avenue in the City of East Cleveland, she was injured solely and proximately by reason of the negligence of defendant, City of East Cleveland, when, without negligence on her part, her foot caught in an unsafe and dangerous portion of the sidewalk, causing her to fall and suffer serious and permanent injuries. Plaintiff further alleged that the dangerous and unsafe condition of the sidewalk had existed for many months previous to the accident; that defendant had knowledge thereof and that the condition constituted a nuisance in said thoroughfare in violation of §3714 GC.

Defendant in its amended answer, as a first defense, admitted its corporate capacity; that Hayden Avenue was and is a duly dedicated thoroughfare in said city, and admitted that plaintiff received certain injuries at the time and place alleged, but denied any negligence on its part.

As a second defense, defendant alleged that subsequent to the accident and resulting injuries, plaintiff with her husband made claim for damages against Shell Oil Company in front of whose premises the accident occurred, and that in pursuance thereof plaintiff and her husband received from Shell Oil Company the sum of $3467.63 in full settlement of all claims for injuries arising out of the accident of August 2, 1945.

Plaintiff, by way of reply, traversed the allegations of the amended answer and set forth that the sum of money received from Shell Oil Company was not in full settlement of her claim for injuries and that the release and covenant not to sue described in defendant’s second defense, contained a reservation of rights to obtain full compensation from the defendant, City of East Cleveland.

The case was tried and submitted to a jury on the issues made in the pleadings. However, the trial judge excluded from the consideration of the jury the matter of the release set up as a second defense in the amended answer of defendant, holding in substance that the settlement with Shell Oil Company had no bearing or place “in the litigation due to the fact that there is in this cause no showing that Shell.Oil Company had any liability; nor that the release of the Oil Company by plaintiff in any manner prejudiced defendant, City of East Cleveland.” In this connection the trial judge in his charge to the jury said in part:

“Pay no attention whatever to the second defense set forth in the amended answer of the City of East Cleveland.”

While there are disputed questions of fact, we think an extended discussion thereof is unnecessary and therefore present only a brief statement sufficient for an understanding of this opinion.

It appears that in November, 1929, Shell Oil Company purchased a lot at the northeast corner of Hayden and Scioto Avenues in the City of East Cleveland for gas station purposes. The lot had a frontage of 90 feet on Hayden Avenue and 82 feet on Scioto Avenue. A building was erected thereon in 1930 and two entrances or driveways were constructed on the Hayden Avenue side and one on the Scioto Avenue side. The entrances on the Hayden Avenue side were each 27 feet wide and consisted of concrete extending from the public street and sloping upward to the public sidewalk. The concrete entrances also included as a part thereof the public sidewalk which was also constructed of concrete. In changing the property over into a commercial lot, Shell Oil Company, under permit from the City of East Cleveland, removed the curb in front of the entrances and the sidewalk on Hayden Avenue was lowered to the grade of the concrete entrance and the old flagstone sidewalk was re-laid in the 24 foot strip that separated the two concrete entrances. There is evidence in the record tending to show that thereafter the stone flagging contiguous to the concrete at the northerly entrance of the station on Hayden Avenue, sunk or dropped two and one-half to three inches, so that the stone flagging at that point was lower than the concrete portion of the sidewalk. It is the contention of plaintiff that it was this difference in the level between the sunken flagstone sidewalk and the concrete entrance that caused her to fall.

There is evidence in the record tending to show that the sidewalk where the plaintiff fell was without any defect from the date of its construction in 1930 up through 1944, and that the defective condition arose within the year preceding the accident as the result of natural wear, tear and weather.

From all of the foregoing it may be observed that plaintiff based her claims against the City of East Cleveland on its failure and neglect to repair the sidewalk and remove the nuisance alleged to exist in violation of §3714 GC.

The defendant disputed these claims of plaintiff and contended that the original construction by Shell Oil Company of the sloping driveway of which the cement sidewalk was an integral part, was for its own benefit and that there was evidence tending to show that the sidewalks and driveways as originally built by Shell Oil Company in 1930 were in the same condition at the time of plaintiff’s accident in 1945.

The case having been submitted to the jury on the issues made by the pleadings and the evidence, and the jury having found in favor of plaintiff, we cannot say that the verdict of the jury was contrary to the manifest weight of the evidence.

It is the further contention of defendant that the covenant not to sue and release to Shell Oil Company was a complete release in favor of City of East Cleveland on the ground that the Shell Oil Company was the primary wrong-doer and that defendant, City of East Clevelland was only secondarily liable for passive negligence. Defendant argues that the principles enunciated in the cases of Bello v. City of Cleveland, 106 Oh St 94, and Herron v. City of Youngstown, 136 Oh St 190, should have been applied by the trial court to the instant case, and that the trial court should have granted one of the several motions for directed verdict and failing in this, for judgment notwithstanding the verdict and that defendant is entitled now to final judgment in this court.

The settlement with the abutting property owner in the Bello case contained no reservation of plaintiff’s claim against the city, but in the Herron case there was such a reservation and therefore the defendant bases its principal argument on the doctrine of the Herron case.

We have examined the record very carefully and have concluded that the trial judge correctly distinguished the instant case from the cases of Bello v. City of Cleveland and Herron v. City of Youngstown, supra.

We think this case must be distinguished from the so-called trap door and coal hole cases, such as the Bello, Herron, and .similar cases where liability rests upon the abutting property owner for negligence in placing within the limits of the public sidewalk some obstruction used exclusively for his own benefit and convenience. In this class of cases, the liability rests upon the abutting property owner, not necessarily because he is an abutting property owner, but because of his negligence in placing upon a public highway an obstruction or contrivance foreign to the use of the highway, which proximately results in injury to the traveler thereon. In such cases, when the abutting property owner by his negligence creates a dangerous condition he becomes primarily liable to any person injured as a proximate result of such negligence and the city secondarily liable for such unsafe condition if it had notice thereof. Thus, where a settlement is made and release given to the abutting property owner primarily liable, an action against the city must fail under the doctrine of the Bello and Herron cases because the release to the abutting property owner defeats the right of the city to be subrogated to the rights of the injured party and to recover over its loss from the property owner.

The rule of law is quite different where the city fails in its primary obligation under the provisions of §3714 GC, to keep the sidewalk free from nuisance. In such cases the abutting property owner is not liable for failure to repair. In such cases the duty rests upon the city and not the abutting property owner to see that sidewalks are kept in a safe condition. That the law of Ohio is well settled upon this question is indicated by the cases of Sammins v. Wilhelm, 6 O. C. C. 565; Collins v. Schmitt, 11 O. D. R. 103; City of Youngstown v. Peters, 60 Oh Ap 247; Wilhelm v. City of Defiance, 58 Oh St 56. This doctrine is so well settled and so succinctly and concisely stated in the Wilhelm case and cases cited, that we think further discussion of this point is unnecessary.

We come now to a consideration of the more important assignment of error, and that is, the exclusion by the trial judge of all consideration of the covenant not to sue and the release given to Shell Oil Company in partial satisfaction of plaintiff’s injuries.

In this case, the issue was sharply drawn on the question of the proximate cause of the plaintiff’s injuries and-in view of the finding of the jury on this issue joined on the pleadings and evidence, we must conclude that the verdict in favor of plaintiff was predicated upon sole negligence of the city in failing to keep the sidewalk free from nuisance in violation of the provisions of §3714 GC.

We must also conclude that the jury followed the instructions of the court to disregard entirely the matter. of the release and covenant not to sue executed by plaintiff and her husband to Shell Oil Company in partial satisfaction for injuries sustained, even though the jury was fully informed of the settlement because the instrument evidencing the same was admitted in evidence as an exhibit and read to the jury.

Because of the importance of the question we deem it helpful to set forth the instrument in question which, omitting the verification, reads as follows:

“RELEASE.

Covenant Not to Sue The Shell Oil Company.

Read carefully before signing.

To all to whom these presents shall come or may concern, greetings: Know Ye That Vera Hillyer and Nathanial Hillyer Address: 14112 Scioto Avenue East Cleveland Ohio (hereinafter referred to as the Claimants) for and in consideration of the sum of Three Thousand Four Hundred and Thirty-Seven 63/100 Dollars Lawful Money of the United States, the receipt of which is hereby acknowledged do hereby

REMISE, RELEASE AND FOREVER DISCHARGE SHELL OIL COMPANY

their agents and servants, and all other persons, firms and corporations whomsoever now have or may hereafter have, on account of or arising out of the accident, casualty and/or event which happened on or about the 2nd day of August, 1945, including those consequences thereof which may hereafter develop as well as those which have already developed or are now apparent. As a further consideration for said sum, Claimants warrant that no promise or agreement not herein expressed has been made to Claimants; that in executing this Release Claimants are not relying upon any statement •or representation made by the party or parties hereby released or said party’s or parties’ agents, servants or physicians, ■concerning the nature, extent or duration of the injuries and/or damages or concerning any other thing or matter, but are relying solely upon their own judgment; that the .above mentioned sum is received by Claimants in full settlement and satisfaction of all the aforesaid claims and demands whatsoever; that Claimants are over twenty-one years of age and legally competent to execute this Release; that before .signing and sealing this Release, Claimants have fully informed themselves of its contents and meaning and have ■executed it with full knowledge thereof. However, it is •understood and agreed that said payment of Three Thousand four hundred and thirty-seven and 63/100 Dollars is not .adequate compensation for the injuries sustained and the undersigned hereby expressly reserve all of their rights to ■obtain full compensation from the City of East Cleveland, or any other person, firm or corporation liable for injuries to them.

In Witness Whereof, Claimants have hereunto set their hands and seals on the 2nd day of July, 1947.

Vera Hillyer

Nathanial Hillyer

Claimants (Seal).”

An analysis of this instrument discloses clearly the intention of the parties that the sum paid by Shell Oil Company .and received by plaintiff and her husband was in partial •satisfaction only of her injuries; further, that the instrument is in essence a covenant not to sue, because of the language used and because of the reservation of rights against the City of East Cleveland. Moreover, the instrument shows ■on its face that a claim was made against Shell Oil Company, the plaintiff and her husband being described numerous times throughout as “Claimants.”

It further appears, irrespective of liability, that Shell Oil ■Company “bought its peace” with the plaintiff by the payment of a substantial sum of money. Under these circumstances, can the plaintiff here take the position that the payment to her was in the nature of a gift or donation by one -who was an entire stranger to the situation?

The subject of the release of one not liable is treated in •45 American Jurisprudence, 702, Section 38, as follows:

“Release of Persons not liable: Whether the operation ■of a release of one person from liability for a tort, upon the liability of another for the same injury, is affected by the fact that the person so released was not in fact or law liable, is a question upon which the decisions are regarded as conflicting, although many of them may, perhaps, be harmonized by reference to the distinction, now so widely recognized, between the effect of a release for a consideration not intended as compensation and the effect of the receipt of a sum of money regarded as compensatory damages. Some courts hold that a release for a consideration, of one not shown to be a joint wrongdoer, will not operate to discharge others who are responsible, at least where the consideration for the release has not in fact been accepted as a satisfaction for the injury. Other courts adhere to the view that, from whatever source compensation for an injury is accepted, it will operate as a satisfaction, so that in equity and good conscience the law will not permit the party so compensated to recover again for the same injury; that the validity of the release is in no way dependent upon the validity of the claim and therefore, whether the person from whom the satisfaction came was or was not legally liable is immaterial. But in the opinion of some courts there must have been at least the appearance of liability, that is, something in the nature of a claim on the one hand, and a possible liability under the rules of law on the other.”

It is established in Ohio that a release of tort feasors severally or jointly liable in an amount paid by one tort feasor in consideration of a partial release is to be regarded as a satisfaction pro tanto, to the party wronged and to that extent works a discharge to all wrongdoers.

See Adams Express Co. v. Beckwith et al, 100 Oh St 348 (disapproving and overruling Ellis v. Betzer)

And later cases to the same effect.

In the Adams Express Company case, supra, the court said in part at pages 355 and 356:

“There is nothing peculiar or exceptional about contracts of release, or contracts not to sue, or contracts to cease prosecuting a suit. They are presumably to be construed, if in doubt, by the same rules of arriving at the intention of the parties as any other kinds of contracts......Such engagements are all made with reference to and solely in connection with a conceded or contended liability for wrongs committed by two or more persons known in common law as joint tort feasors.”

“Whether there was any wrong or not; whether such wrong was the proximate cause of an injury, which one, if any, or all, of the defendants is liable as charged, should be determined exactly as if no contract of settlement or satisfaction or covenant not to sue had become a part of the pleading or proof of the case. If it turns out that there is any such agreement as in the case at bar, by which partial satisfaction may have been made by other persons charged with the commission of the wrong or injury, then such partial satisfaction will inure to the benefit of all parties responsible in law for the commission of the wrong. The obligation is joint and several. It is an obligation to pay the damage done and when that damage is once fully paid, that is the end of the whole matter. But there is no reason why, unless the parties all agree, a partial satisfaction should be declared a full satisfaction. It is not so done as to contractual obligations; it should not be done as to tortious obligations.” (Emphasis ours.)

While in the case at bar we do not have the issue of joint, or related tort feasors, it is clear that the plaintiff, before-filing suit against defendant, the City of East Cleveland,, contended there was a liability for wrong committed and in response to this contention or claim, Shell Oil Company paid a substantial .sum of money which was accented in partial satisfaction of her injuries. It seems to us that the plaintiff in “equity and good conscience” is now estopped by her conduct to deny that the amount so received was in partial satisfaction of the claim even though it appears from the result of the jury verdict on the issues made in this case that defendant, the City of East Cleveland, was solely liable.

It is true there is a conflict in decisions in respect of a release of persons not liable, but we think on reason and authority, the releasor can have but one satisfaction for her injury and that where an amount has been paid by one against, whom a claim was made by reason of the same accident and resulting injuries, the amount so paid may be pleaded by a-defendant as a discharge pro tanto of the injuries sustained. So that in the instant case, it was the duty of the trial judge to instruct the jury in substance that plaintiff could have-but one satisfaction for her injury and that in arriving at a verdict the jury should take into consideration the sum paid to her by Shell Oil Company as set forth in the second defense-of the amended answer and should deduct the sum thus-received as a pro tanto discharge or satisfaction for the injuries received by her from the total amount which they should find due the plaintiff. Refusing to do so constituted prejudicial error.

It is our view that the error committed by the trial court can be cured if the plaintiff is willing now to accept a remittitur in the amount of the partial satisfaction and credit it on the judgment. In that way the prejudice will be removed. If the remittitur is accepted the judgment will be modified accordingly; otherwise, the judgment will be reversed and the cause remanded for further proceedings according to law. .Exceptions noted. Order see journal.

.SKEEL, PJ, McNAMEE, J, concur.


author: By WISEMAN, J.

text:
    WAGNER et, Plaintiffs-Appellees, v. BOGGESS COAL AND SUPPLY CO., Defendant-Appellee, and DeWITT, Intervenor-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 4386.
    Decided March 13, 1950.
    McFayden & Swisher, Dwight A. Swisher, R. Rush Warren, of Counsel, Columbus, for Oscar C. Wagner and Evelyn L. Wagner, plaintiffs-appellees.

      Vorys, Sater, Seymour & Pease, Arthur I. Vorys, Byron E. Ford, of Counsel, Columbus, for Louis N. DeWitt, IntervenorAppellant.
   OPINION

By WISEMAN, J.

This is a law appeal from the judgment of the Common Pleas Court of Franklin County, Ohio, dissolving The Boggess Coal and Supply Company, an Ohio corporation, on a petition filed under the provisions of §8623-86 (d) GC.

i The principal question presented on review is whether the action in the Court of Common Pleas was prematurely brought due to the fact that the shares of stock owned by one of the plaintiffs at the time the petition was filed had not been transferred on the books of the corporation. The intervenorappellant assigns as error the action of the trial court in ordering the corporation dissolved under §8623-86 GC, when the factual situation did not disclose that one-half of the stock owned by the plaintiffs had been transferred on the books of the corporation. The point is made that before the plaintiffs were entitled to petition the Common Pleas Court for dissolution they must be holders of stock which appears of record on the books of the corporation.

A motion by plaintiffs-appellees has been filed to dismiss the appeal for the reason that the questions involved in said appeal have now become moot. In support of the motion an affidavit has been filed by one of the attorneys representing the appellees, which states:

“That he is attorney for George P. Dolle, the duly appointed, qualified and acting receiver of The Boggess Coal and Supply Company, having been appointed as counsel by the Common Pleas Court of Franklin County, Ohio; that pursuant to the order of dissolution made by the Common Pleas Court of Franklin County, Ohio, November 7, 1949, a certified copy of which was duly filed with the Secretary of State of the State of Ohio, said receiver has sold all of the assets of said corporation with the exception of a few accounts receivable; that the appellant herein has organized and formed a new corporation under the name of The Boggess Coal and Supply Company, and appellant and his wife have purchased land and buildings on which the old corporation did business, and appellant, and his wife are now engaged in the same business as the old corporation, at the same location, and even using the same telephone number of the old corporation.”

The facts set forth in the affidavit are not in dispute.

Under the provisions of §8623-91 GC, upon the filing of a certified copy of the order of dissolution with the Secretary of State the corporation is dissolved and its authority to carry on its business terminates.

In view of the dissolution of the corporation the question now presented is whether there is any matter left on this appeal for judicial determination. Obviously, if the Court hears the appeal on the merits and sustains the judgment of the trial court, the affirmance would be ineffective for the reason that the judgment of the trial court has long since been carried out; if this Court reverses the judgment of the trial court the reversal would be ineffectual to restore the status quo or to afford any relief affecting the substantial rights of the appellant. Courts are instituted not only to render but also to enforce their judgments. It would be a vain thing to render a judgment and not be able to enforce it. For this reason courts will not consume time or effort by attempting to decide moot questions. The general rule is stated in Vol. 2, O. Jur., Part 1, page 889, Section 497, as follows:

“The rule is well settled in Ohio that where, pending an appeal on questions of law, by a change of circumstances ■or otherwise, the questions which would be presented to the reviewing court have become purely academic or abstract, and any judgment which it might render thereon would in no way avail, or be beneficial to, any party, the proceeding will ordinarily be dismissed, because it is not the duty nor responsibility of the court to answer moot questions. So the proceeding will be dismissed if the order or judgment which the appellant seeks to reverse, not having been stayed, has been carried out or if the thing which he seeks to prevent or avoid has been accomplished, and the situation is such that reversal would be wholly ineffectual to reestablish the status quo or to afford any relief or advantage to the appellant; or if the situation has so changed that the relief sought by the appellant has become unnecessary. * * *”

In Vol. 1, C. J. S., page 1012, is found this statement:

“A judicial tribunal ordinarily may consider and determine only an existing controversy, and not a moot question or abstract proposition.

To invoke the jurisdiction of a court of justice, as to a cause or right of action, ■ it is primarily essential that there be involved a real and existing controversy, calling for a present adjudication involving present rights, and that some relief be sought which may be granted, something further than a mere declaration of right.

The function or duty of a judicial tribunal is to determine real controversies relative to the legal rights of persons or property, which are actually involved in the particular case properly brought before it; and to adjudicate these rights in such manner that there (their) determination will be operative, final, and conclusive, by a judgment that can be carried into effect.”

The leading case in Ohio covering this question is Miner v. Witt, 82 Oh St 237, 92 N. E. 21. The syllabus of that case is as follows:

“It is not the duty of the court to answer moot questions, and when, pending proceedings in error in this court, an event occurs without the fault of either party, which renders it impossible for the court to grant any relief, it will dismiss the petition in error.”

This case has been cited innumerable times by the Ohio courts. We are content to cite only a few later opinions.

In Hagerman v. Dayton, 147 Oh St 313, 71 N. E. (2d) 246, the court cites with approval the case of Miner v. Witt and Mills v. Green, 159 U. S. 651, 40 L. Ed. 293, 16 S. Ct., 132, quoting from the latter opinion written by Mr. Justice Gray, as follows:

“The duty of this court, as of every other judicial tribunal, is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law. which cannot affect the matter in issue in the case before it. It necessarily follows that when, pending an appeal from the judgment of a lower court, and without any fault of the defendant, an event occurs which renders it impossible for this court, if it should decide the case in favor of the plaintiff, to grant him any effectual relief whatever, the court will not proceed to a formal judgment, but will dismiss the appeal. And such a fact, when not appearing on the record, may be proved by extrinsic evidence.”

See also In Re Irwin, 148 Oh St 28, 72 N. E. (2d) 373; Hughes v. Bd. of Revisions, 143 Oh St 559, 56 N. E. (2d) 63; Travis v. Pub. Util. Comm., 123 Oh St 355, 175 N. E. 586; Pollitz v. Pub. Util. Commission, 93 Oh St 483, 113 N. E. 1071; Farrel v. Brazee, 9 Oh Ap 218.

It is contended that there remains a question as to the determination of costs. In Vol. 1, C. J. S. p. 1015, it is stated that:

“Jurisdiction will not be retained merely to determine incidental questions such as costs.”

In Miner v. Witt, supra, wherein the annexation by a city of a part of a village was sought to be enjoined, the court, on page 238, holds:

“The whole village is now part of the city, and the determination of the questions presented by the record would, so far as this case is concerned, affect nothing but the question of costs. There is nothing left but a moot case.” (Emphasis' ours.)

The case of Forsythe v. Rees, 33 Abs. 287 is cited for authority that the question of costs will save the appeal from becoming moot. A close analysis of that case discloses that the decision of the court with reference to the question of costs hinged upon the fact that the final entry appealed from contained a judgment against the plaintiff for costs. In the instant case this question is not presented. Furthermore, in the Forsythe v. Rees case the court very definitely held that where an appeal is perfected on questions of law and fact

“* * * the claim that the issuable question is now moot, a claim which can only be presented on the merits and cannot be raised by motion, is not a ground for dismissal of the appeal, especially where the appeal also includes appeal from the judgment for costs.”

In that case the court held that since the appeal was on questions of law and fact the entire case was before the court and would be tried de novo. The court pointed out that upon trial a different factual situation might develop and the question as to whether the appeal was moot could not be determined except upon trial on the merits. The record below, and the judgment of the trial court, was not before the reviewing court. In the case under consideration the appeal is on law only. In the determination of this question a differentiation must be made between the two classes of appeals.

We do not believe that a close analysis of the question before the court in the case of Forsythe v. Rees shows an adherence to a principle of law which is irreconcilable with the decision of our Supreme Court in the case of Miner v. Witt, wherein the court held that where there is nothing left for determination but the question of costs the appeal will be dismissed on the ground that a moot question is presented.

In the case at bar, the appellant failed to give a stay bond under §12223-9 GC, holding in abeyance the enforcement of the judgment of the trial court. The question has become moot due to the failure of the appellant to avail himself of his rights under the law to stay the proceedings. In Travis v. Public Utilities Commission of Ohio, supra, the first paragraph of the syllabus is as follows:

“In an error proceeding from the Public Utilities Commission of Ohio to the Supreme Court, where the party complaining did not apply for or obtain an order of the Commission staying or postponing the enforcement of the order, and did not obtain an order in the Supreme Court allowing such stay, or execute any undertaking conditioned for the payment of damages arising from or caused by the delay in execution of the order complained of, and the successful party so far proceeds in the execution of the order, before the error proceeding is heard in the Supreme Court, that a reversal could not affect the matter at issue, a motion to dismiss will be sustained.”

In Pollitz v. The Public Utilities Commission of Ohio, supra, the court says:

“It appearing to the court that the order of the public utilities commission complained of has been fully complied with and carried out, that none of the steps provided by law for the keeping of said order in abeyance pending further proceedings were taken or complied with, and that there is nothing left upon which the judgment of this court might operate, the question presented is therefore a moot one and this cause is dismissed on the authority of Miner v. Witt,

In the case at bar the appellant should not be heard to complain, since he did nothing to stay the proceedings pending the appeal. Furthermore, it is interesting to note that the appellant purchased the lands and buildings on which the dissolved corporation did business after the corporation was dissolved, and is doing business under the same name, at the same location. He has accepted the benefits accruing by reason of the enforcement of the order of the trial court which on this appeal he seeks to reverse. The appellant’s failure to give a stay bond has given rise to a situation which has rendered this appeal moot.

In our opinion there is no question left in this appeal for determination. The motion to dismiss the appeal on the ground that the question is moot will be sustained. So ordered.

MILLER, PJ, and HORNBECK, J, concur.


author: Per CURIAM:

text:
    DWORKEN, Plaintiff-Appellee, v. MILLER (Edward), Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 21529.
    Decided January 20, 1950.
    Harry J. Dworken, Cleveland, for plaintiff-appellee.
    Wilt, Yoder & Corlett, Cleveland, for defendant-appellant.
    (GUERNSEY, PJ, MIDDLETON, J, of Third District: DOYLE, J, of Ninth District, sitting by designation.)
   OPINION

Per CURIAM:

If the motion of the plaintiff to strike the bill of exceptions from the flies should be sustained, this cause could be considered by this court only upon the transcript of docket and journal entries, the pleadings and original papers which fail to show that the divorce action instituted by plaintiff on behalf of Olive A. Miller has been dismissed and the court in which it was instituted has thereby lost jurisdiction to make allowance for the attorney fees claimed by plaintiff, which does appear in the incomplete bill of exceptions.

Consequently, in the interest of justice, said motion to strike will be treated as a suggestion for diminution of record, and this court will remand the bill of exceptions to the municipal court with instructions that there shall be incorporated in said bill of exceptions all the evidence introduced and the rulings made and proceedings had by the municipal court upon the trial of this cause in said court (and no other matters or proceedings) without attempting or purporting by reference to incorporate therein or in the transcript the objections made to such bill of exceptions by plaintiff in the Municipal Court as was done in the incomplete bill of exceptions filed herein; and that upon completion of said bill of exceptions in conformity with this order, said bill of exceptions be forthwith returned to and filed with this court.

A journal entry in conformity herewith must be filed by the plaintiff.

GUERNSEY, PJ, MIDDLETON, J, DOYLE, J, concur.


author: By MIDDLETON, J:

text:
    DWORKEN, Plaintiff-Appellee, v. MILLER (Olive), et, Defendant-Appellant.
    No. 21529.
    Decided May 18, 1950.
    (GUERNSEY, PJ, MIDDLETON, J of Third District: DOYLE, J, of Ninth District sitting by designation in Eighth District.)
   OPINION

By MIDDLETON, J:

This is an appeal on questions of law, by the defendant, Edward Charles Miller, from a judgment of the Municipal Court of the City of Cleveland, Ohio, in favor of plaintiff and against the defendant, Edward Charles Miller, on an account for legal services furnished by plaintiff to Olive A. Miller, the wife of Edward Charles Miller.

The petition sets forth that the defendant, Edward Charles Miller, is the husband of the defendant, Olive A. Miller, and that there is due the plaintiff from the defendants on account for necessaries furnished to said Olive A. Miller, the sum of $100.00, a copy of which account is attached to the petition as an exhibit; that plaintiff was employed by the defendant, Olive A. Miller, for the purpose of representing her in instituting a petition for divorce, temporary alimony, restraining •order and custody and support for the minor child of the parties; that plaintiff rendered professional services as set forth in the exhibit attached to the petition; that the legal •services furnished by the plaintiff for said Olive A. Miller were necessary for the protection of her legal rights and in order to obtain an award for her maintenance and for the support •of the minor child; that the defendant, Edward Charles Miller, had failed and refused to provide her with said services or to give her the means of obtaining them.

To the plaintiff’s petition, the defendant, Edward Charles Miller, filed his answer in which he admits that he is the husband of the defendant, Olive A. Miller, and denies that ■he ever employed the plaintiff to do any work for him, and denies that any work done by said plaintiff for or on behalf ■of his wife, was any necessity for which he was liable. The •answer then sets forth a general denial.

Defendant, Olive A. Miller, for answer, admits the employment of the plaintiff, as alleged in the petition; denies that said services by plaintiff were a necessity, and avers payment to plaintiff, of a sum sufficient to pay him in full for any services rendered to or for her. This is followed by a general ■denial.

Upon trial, judgment was entered for the plaintiff against tooth defendants in the sum of $100.00, the amount claimed due in the plaintiff’s petition.

Prom this judgment the defendant, Edward Charles Miller •alone appealed to this court. He bases his appeal upon the .sole ground that the judgment is contrary to law for the reason that legal services furnished to his wife do not constitute necessaries furnished to his wife for which he is liable.

The bill of exceptions is very brief and in narrative form. It sets forth the following:

Edward C. Miller does not contest the amount of fees, nor the liability of Olive A. Miller therefor, but denies that he is liable therefor.

Plaintiff called the defendant, Olive A. Miller, for cross-examination, who testified that she employed the plaintiff as attorney to file an action for divorce and a motion for temporary alimony and support of minor child; she identified the petition and motion for alimony and support of her minor child, which she had signed. She further testified that it was necessary that she obtain temporary alimony and support for her minor ,child from her husband. She then testified that she and her husband became reconciled several weeks after the divorce action was filed, and that she requested the plaintiff to dismiss, the action, which he refused to do until his entire fee was paid; that she went to see the judge and he dismissed the action.

Plaintiff took the stand in his own behalf and testified that he was employed by the defendant, Olive A. Miller, to file a petition for divorce, with restraining orders and other relief; also, a motion for temporary alimony and support of their minor child; that the defendant, Olive A. Miller, told him that she was in dire need of funds to support herself and child. Plaintiff further testified as to other services in connection with the action, telephone conversations and conferences with his client and counsel .for her husband; that he knew the parties had been reconciled several weeks after the filing of the divorce action and that he refused to dismiss the action until he was paid the additional fee he claimed due him. The plaintiff then rested.

Thereupon the defendant, Edward C. Miller, moved for a directed verdict- in his favor for the reason that he had never contracted for nor agreed to pay the plaintiff for services rendered his wife, and said services were not such necessities for which he would be liable.

The court overruled this motion and thereupon the defendant presented no evidence and rested.

Defendant, Edward C. Miller interposed a motion in this court, to strike the bill of exceptions from the files for the reason that said bill of exceptions is defective and incomplete. This motion was treated by this court as a suggestion for diminution of the record and the bill of exceptions was remanded to the Municipal Court. The bill of exceptions was thereafter corrected by the Municipal Court and re-filed.

The matters complained of in the motion to strike, having been corrected, the motion to strike is overruled.

The sole question presented is whether or not the facts, as disclosed by the bill of exceptions, show that the services performed by the plaintiff were necessaries furnished the defendant’s wife, for which the husband became liable.

By the provisions of §11994 GC, the court, during the pendency of a divorce action, may grant to either party, .alimony for his or her sustainence and expense during the .suit; and allowances for the support of minor children dependent upon either party for support, not provided for by .such party during the pendency of the action for divorce.

This provision of the code vests in the court the discretion to allow legal expenses as a part of an allowance of temporary alimony. Drach v. Drach, 17 Oh Ap 299.

It therefore would have been within the discretion of the ■Common Pleas Court, in the action for divorce, alimony and .support of the minor child, upon a hearing of the motion for temporary alimony, to have allowed to the wife, as a part ■of her expenses, her expense for legal services.

Such an order fixing the liability of the husband to pay legal expenses is ordinarily made before there is any showing ■of failure or neglect on the part of the husband as set out in a divorce action.

Olive A. Miller, by her action in dismissing the case for ■divorce, alimony and support of minor child, deprived the ■Common Pleas Court of jurisdiction to make such an order.

In the absence of such an order made during the pendency ■of the divorce action, does any liability exist against the .husband for legal services furnished his wife, in an action for divorce, alimony and support of minor child, instituted ■by her?

It seems well-settled, not only in Ohio, but by the weight ■of authority in the country, that a husband is not liable in .a suit by an attorney for services in representing the wife in .a divorce action in which the sole relief asked is divorce.

Dorsey v. Goodenow, Wright Reports 120.

Shelton v. Pendleton, 18 Conn. 417.

However, there is a radical distinction between an' action for divorce alone or dissolution of the marriage tie, and an .action for separate maintenance and/or for support of a minor child.

A careful examination of the decided cases in this country will show that, while an action like the present, cannot be .maintained where the services were rendered in an action for divorce alone, it will lie where the action was for separation only. The reasoning followed in these cases applies with ■equal force where the action includes alimony and support of a minor child, if it appears that the institution of the .suit was necessary to obtain the relief sought.

Phillips v. Simmons, 11 Abb. Prac. 287.

Naumer v. Gray, 51 New York Supp. 222.

Therefore, if the claim in the instant case had been founded on action for divorce alone, we would conclude that the plaintiff had no cause of action against the defendant husband. However, where attorney fees are claimed for the institution of an action for alimony and support for a minor child, such an action may be maintained against a husband on the theory of necessaries furnished the wife.

The liability of the husband and father of the child to support his minor child would continue to exist notwithstanding the court might order a dissolution of the marital contract. The duty to support a minor child exists by reason of the relationship of parent and child and would not be affected by the dissolution of the marriage of the parents.

The record in this case, although very brief, sets forth that it was necessary for the wife to receive support and maintenance for the child from the father. The defendant husband made no denial of this charge and offered no testimony in defense thereto.

The court therefore was justified in finding that the defendant husband had failed to furnish support for his child, that said support was necessary, and th^t the wife was compelled to employ legal counsel to file an action against the defendant therefor.

The plaintiff was entitled to payment by the defendant husband for the services furnished in the action instituted in the Common Pleas Court, but the court was deprived of jurisdiction to grant such relief.

The action in which the legal services were furnished, being to obtain support for the minor child, in addition to other relief, such services constituted necessaries for which the defendant husband is liable.

For the reasons above given, the judgment of the Municipal Court is affirmed. Exceptions noted. Order see journal.

GUERNSEY, PJ, DOYLE, J, concur.