author: By SKEEL, PJ.

text:
    STATE ex SCHNEIDER, Relator, v. BREWER, Judge, Respondent.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 21566.
    Decided February 27, 1950.
    Woodle & Wachtel, Cleveland, for relator.
    Ellis Rippner, Cleveland, for respondent.
   OPINION

By SKEEL, PJ.

This cause comes to this court on a petition seeking a writ of mandamus to compel the Judge of the Probate Court ■of Cuyahoga County to carry out a mandate of the Common Pleas Court of this County to appoint John Schneider, Administrator de bonis non of the estate of Anna Schneider. 'The petition in part alleges:

“One Anna Schneider, a resident of the County of Cuyahoga died on the 25th day of June, 1942. She was survived by, among other heirs, her husband John Schneider.

Letters of administration of the estate of Anna Schneider were issued to John Schneider by the defendant on July 16, 1942. As such administrator of the estate of Anna Schneider, deceased, John Schneider filed in the Court of Common Pleas of Cuyahoga County, a petition for a declaration of trust in certain real property. Said action is entitled —John Schneider, administrator of the estate of Anna Schneider, deceased, v. Nellie L. Lentzen, — and it was docketed as Cause No. 522250 on the docket of the Court of Common Pleas. The action was filed on the 24th day of August, 1942. John Schneider died on the 29th day of December, 1943. At the time of his death the estate of Anna Schneider, deceased, was still in the process of administration and the foregoing action instituted by John Schneider as administrator was still pending in the Common Pleas Court.

The relator herein thereupon filed in the Probate Court of Cuyahoga County an application for Letters of Administration de bonis non of the estate of Anna Schneider.

The relator is the son of John Schneider, deceased and as such succeeded to a portion of the interest of John Schneider in the estate of Anna Schneider, deceased. The defendant denied relator’s application for Letters of Administration de bonis non. Thereupon an appeal was instituted by the relator to the Court of Common Pleas of Cuyahoga County. Said appeal was filed on the 8th day of January, 1945. The appeal was dismissed without a hearing on the merits on the 21st day of February, 1946.”

The grounds for dismissal was that the appellant was not entitled to an appeal on questions of law and fact as provided by §10501-56 GC, as amended effective August 22, 1941. The petition further alleges:

“The dismissal of the appeal by the Common Pleas Court was reversed by the Court of Appeals of the Eighth Appellate District on the 18th day of February, 1947, and the cause was remanded to the Common Pleas Court to hear and determine the appeal on questions of law and fact.

On the 18th day of May, 1948, a finding and decree was issued by the court of common pleas whereby.said court granted the application of relator herein for letters of administration de bonis non of the estate of Anna Schneider, deceased.

An appeal from that order of the Court of Common Pleas was taken to the Court of Appeals of the Eighth Appellate District and the order was affirmed by the Court of Appeals on the 7th day of March, 1949.

Thereafter a mandate was issued by the Court of Common Pleas to the Probate Court, directing that court to appoint the relator herein administrator de bonis non of the estate of Anna Schneider, deceased. Said mandate was as follows:

‘This cause came on for hearing before this court upon an appeal upon questions of law and fact from the order of the probate court of Cuyahoga County and was submitted upon the application of the appellant, Frank P. Schneider, for letters of administration de bonis non, and upon a statement of facts agreed to by the parties and briefs of counsel.

Upon consideration whereof the court finds that the application of appellant should be and the same is hereby granted.

And it is ordered and directed that letters of administration de bonis non of the estate of Anna Schneider, deceased, be issued to Frank P. Schneider, appellant herein.

It is further ordered and directed that a special mandate be issued to the Probate Court of Cuyahoga County to carry into effect the judgment of this court herein.’

The said mandate has been filed in the Probate Court of Cuyahoga County and has been presented to the defendant as Judge of said court. The defendant has refused to obey the mandate of the Common Pleas Court as affirmed by the Court of Appeals of the Eighth Appellate District.”

The answer of the respondent admits the historical fact allegations of the petition and then alleges:

“* * * that the appointment of an administrator de bonis non is jurisdictional and the refusal of the respondent to appoint such fiduciary raises solely a question of law and that the Common Pleas Court is without jurisdiction to entertain an appeal in the premises;

The respondent further alleges that the mandate heretofore issued by the common pleas court is contrary to the statutes of Ohio and the constitution of Ohio, in that the appointment of specific persons involves an act of judicial discretion which has been committed to the Probate Court to the exclusion of all other tribunals except to the extent that reviewing courts are given the authority to determine whether such discretion was properly exercised.”

We are therefore presented with the question of whether upon an appeal on questions of law and fact from a refusal of the Probate Court to grant an application for the appointment of an administrator de bonis non when no record of the proceeding in which such application was heard and overruled was taken, the court of common pleas is vested by law with the power to try such cause de novo and upon a proper showing direct the appointment of a person to act as such fiduciary.

The jurisdiction of the Probate Court is provided for by Section 8 of Article IV of the Constitution of Ohio:

“The Probate Court shall have jurisdiction in probate and testamentary matters, the appointment of administrators and guardians, the settlement of the accounts of executors, administrators and guardians and such jurisdiction in habeas corpus, the issuing of marriage licenses and for the sale of land by executors, administrators and guardians and such other jurisdiction, in any county or counties as may be provided by law.”

Sec. 10501-53 GC in part provides:

“Except as hereinafter provided, the probate court shall have jurisdiction:

1. To take proof of wills and to admit to record authenticated copies of wills executed, proved and allowed in the courts of any other state, territory or country. In case of the sickness or unavoidable absence of the probate judge, any common pleas judge may take proof of wills and approve bonds to be given, but the record of such acts must be preserved in the usual records of the probate court;

2. To grant and revoke letters testamentary and of administration.

3. To direct and control the conduct, and settle the accounts of executors and administrators and order the distribution of estates;

13. To direct and control the conduct of fiduciaries and settle their accounts.

Such jurisdiction shall be exclusive in the probate court unless otherwise provided by law.

The probate court shall have plenary power at law and in equity fully to dispose of any matter properly before the court unless the power is expressly otherwise limited or denied by statute.”

The jurisdiction of the Common Pleas Court is provided for by Section IV of Article 4 which provides that it shall have such jurisdiction as is provided by law.

The jurisdiction of the Court of Appeals is provided for by Section 6, Article IV which in part provides:

“* * * The courts 0f appeals shall have original jurisdiction in quo warranto, mandamus, habeas corpus, prohibition and procedendo and appellate jurisdiction in the trial of chancery cases and to review, affirm, modify or reverse the judgments of the Courts of Common Pleas, superior courts and other courts of record within the district as may be provided by law, and judgments of the courts of appeals shall be final in all cases, except cases involving questions arising under the Constitution of the United States or of this state, cases of felony, cases of which it has original jurisdiction, and cases of public or great general interest in which the supreme court may direct any court of appeals to certify its record to that court.”

This provision was amended effective Nov. 7, 1944 and as amended it provides in part:

“The courts of appeals shall have original jurisdiction in quo warranto, mandamus, habeas corpus, prohibition and procedendo and such jurisdiction as may be provided by law to review, affirm, modify, set aside or reverse judgments or final orders of boards, commissions, officers or tribunals and of courts of record inferior to the courts of appeals within the district and judgments of the courts of appeals shall be final in all cases, except cases involving questions arising under the constitution of the United States or of this state, cases of felony, cases of public or great general interest in which the supreme court may direct any court of appeals to certify its record to that court. * *

The supreme court in the case of Y. M. Ry. Co. v. Youngstown 147 Oh St 221, held:

' “1. Sec. 6 of Article IV of the Constitution of Ohio, as amended November 7, 1944, empowers but does not require the General Assembly to change the appellate jurisdiction of the Courts of Appeals.

2. Unless and until there is such legislative action, the appellate jurisdiction of the Courts of Appeals remains as it was at the time the amendment was adopted.”

Sec. 10501-56 GC as amended effective August 22, 1941 in part provides:

“From any final order, judgment or decree of the probate court, an appeal on a question of law may be prosecuted to the court of appeals in the manner and within the time provided by law for the prosecution of such appeals from the court of common pleas to the court of appeals. For the purpose of prosecuting appeals on questions of law and of law and fact from the probate court, the probate court shall hereafter be deemed to be exercising judicial functions inferior only to the court of appeals and the supreme court. If for any reason a record has not been taken at the hearing of any matter before the probate court, so that a bill of exceptions or a complete record may be prepared as provided by law in courts of common pleas, then an appeal on questions of law and fact may be taken to the court of common pleas by a person against whom it is made or whom it affects, from any order, decision or judgment of the probate court in the manner provided by law for the prosecution of such appeal from the court of common pleas to the court of appeals. The court of common pleas shall advance said matter for hearing.”

The first paragraph of the section deals with the subject of appeals on questions of law and fact from the probate court to the court of appeals in such cases as can be reviewed by it de novo.

It will be noted that the second paragraph of §10501-56 GC supra, deals entirely with appeals on questions of law. The part of the section drawn in question here is as follows:

“If, for any reason, a record has not been taken at the hearing of any matter before the probate court so that a bill of exceptions or a complete record may be prepared as provided by law in courts of common pleas, then an appeal on questions of law and fact may be taken to the court of common pleas by a person against whom it is made, or whom it affects, from any order, decision or judgment of the probate court in the manner provided by law for the prosecution of such appeal from the court of common pleas to the court of appeals. The court of common pleas shall advance said matter for hearing.”

Sec. 12223-1 GC in part provides, in defining what is meant by an appeal on questions of law and fact, as follows:

“The (words) ‘appeal on questions of law and fact’ shall be construed to mean a rehearing and retrial of a cause upon the law and the facts and shall include all the proceedings, heretofore and otherwise designated as an appeal and shall be the same as may be designated by the phrase ‘appeal on. questions of law.’ ”

Sec. 10501-53 GC was held constitutional in the case of In re Estate of Bates, 142 Oh St 622, wherein the court said:

“The provisions of §10501-56 GC (119 O. L. 396) that:

‘If, for any reason, a record has not been taken at a. hearing of any matter before the Probate Court so that a. bill of exceptions or a complete record may be prepared as-provided by law in courts of common pleas, then an appeal on questions of law and fact may be taken to the court of common pleas by a person against whom it is made, or whom it affects, from any order, decision or judgment of the-probate court in the manner provided by law for the prosecution of such appeal from the court of common pleas to the-court of appeals’ is not violative of either Section 26 of Art. II or Section 6 of Art. IV of the state Constitution.”

On page 623 of the opinion the court says:

“The question before the Probate Court in this case related to exceptions to the inventory and appraisement filed by an executor. It is not a chancery case. If there had previously been any basis for controversy relative thereto, it. was definitely determined by the decision of this court in the case of Squire, Supt. of Banks v. Bates, 132 Oh St 161, 5 N. E. (2d) 690 where it is held in the first proposition of the syllabus as follows:

‘The settlement of the account of a testamentary trustee-in the probate court is not a chancery case and hence not. appealable as such from the probate court to the court of appeals.’ ”

It is to be noted that the supreme court in holding §10501-53 GC constitutional, and in conferring jurisdiction on the-common pleas court to hear an appeal on questions of law and fact under the conditions set forth in this section, was. dealing with a case in which an appeal to the Court of' Appeals on questions of law and fact could not be had. It was a law case and not a case in chancery and on page 627 of the opinion the court said:

“Appeal is thereby authorized to the Court of Common Pleas under the conditions therein prescribed, but the jurisdiction of the Court of Appeals as conferred by the Constitution is in nowise restricted or modified.

The general statutory provision which refers to the Probate Court as ‘exercising judicial functions inferior only to the Court of Appeals and the Supreme Court’ is limited by the specific provision here under consideration which was ■enacted at the same time and is contained in the same section. (118 O. L. 78.)”

The holding in the case of In re Estate of Murnan, 151 Oh St 529, which is relied upon by the respondent as supporting the •contention that the appointment of an administrator is within the exclusive jurisdiction of the probate court is clearly ■distinguishable from the question now before us.

In that case, which was an appeal on questions of law bo the court of appeals from an order fixing compensation due .a fiduciary appointed by the probate court, it was held that the court of appeals was without jurisdiction to re-try the issues of fact and substitute its judgment for that of the ;probate court.

In the case before us the appeal to the common pleas court 'was upon law and fact which presents a wholly different ■question than that in the Murnan case, supra.

In the case of, In the matter of the guardianship of Habant, 62 Oh Ap 522, counsel had been allowed by action of the probate court certain attorney fees for professional services. The ■guardian on September 6, 1939, gave notice of appeal to the common pleas court of Lorain County on questions of law ■and fact, no record having been taken upon the hearing of •such application; upon the authority of §10501-56 GC. On Sept. 8, 1939, an appeal was taken on law and fact to the ■court of appeals and a motion was filed in the court of appeals to dismiss the appeal on the ground that the common pleas court had acquired jurisdiction of the case. The court held:

“Where a litigant against whom a judgment is rendered in the Probate Court, perfects an appeal on questions of law and fact in the common pleas court, before bringing any pro•ceedings in the court of appeals, and it appears that, under the circumstances existing the appeal was properly taken on ■questions of law and fact to the court of common pleas, such litigant thereby accomplishes a suspension of the judgment ■of the probate court and selects his forum and his remedy. He cannot thereafter while said proceedings in the common pleas courts are pending, invoke the jurisdiction of the Court of Appeals to determine the correctness of the judgment of the Probate Court, which, by his act, has been suspended and which by judgment of the Common Pleas Court may be superseded.”

From the foregoing authorities there can be no question but that the appeal of the refusal of the Probate Court of Cuyahoga County to grant the application of the relator to be appointed administrater de bonis non of the estate of Anna Schneider, was properly taken to the Common Pleas Court on questions of law and fact as provided by §10501-56 GC, supra. This court so held as reported in In Re Estate of Schneider, 81 Oh Ap 233.

The trial of said application upon the return of the mandate holding that the Common Pleas Court had jurisdiction to try the same proceeded as a trial de novo. The- court reheard the application and upon the submission of the case after hearing the evidence and considering it in the light of law, entered a judgment and decree granting the relator’s application as shown by the journal of that court, filed on May 18, 1948, which judgment was likewise on March 7, 1949, affirmed by this court. It is this judgment which the Probate Court now refuses to carry into effect.

The jurisdiction to hear an appeal de novo carries with it the power to enter any judgment or decree justified by the evidence and the law of the case as under the circumstances could have been entered by the court from which the appeal was taken. It therefore becomes the duty of the court from which the appeal was taken to carry out and enforce the judgment entered on appeal. This result, insofar as the subject of the judgment comes within the jurisdiction generally exercised by the Probate Court such as the appointment of an administrator and the like, comes within the exception to such Probate Court’s exclusive jurisdiction as provided by §10501-53 GC, supra.

For the foregoing reasons the writ is allowed. Exceptions. Order see journal.

McNAMEE, J, HURD, J, concur.


source: Caselaw Access Project

author: By MATTHEWS, J.:

license: Public Domain

text:
    ARMSTRONG, Plaintiff-Appellee, v. FELDHAUS, Sr., Defendant-Appellant.
    Ohio Appeals, First District, Hamilton County.
    No. 7190.
    Decided January 10, 1950.

      Paxton & Seasongood, Robért H. Hinds, J. Griffin Murphey, Jr., Cincinnati, for plaintiff-appellee.
    Charles K. Pulse, Vernon W. McDaniel, Cincinnati, for defendant-appellant.
   OPINION

By MATTHEWS, J.:

The defendant owned a farm of 204 acres. • He made an arrangement with the plaintiff, whereby the latter was to conduct the activities thereon for an indefinite period. The plaintiff was to furnish all machinery and labor and each was to furnish one-half of the seed, and they were to share equally of the yield of the crops and animals. Fifty acres of corn and fifty acres of wheat were to be planted. The defendant prepared a written agreement containing these and other terms, and both parties signed it. It provided that “All profits should be shared equally.”

The plaintiff took possession and proceeded to operate the farm. As they proceeded, they verbally agreed as to many of the details. The season was late and the corn planting was not completed till the middle of June. The plaintiff says 48 acres were planted.

The writing provided that if “they became dissatisfied, he is to give 120 days notice.” About six months after the date of the contract the plaintiff notified the defendant verbally that he wanted to end the relation. About two months thereafter, they reached a settlement of all matters according to the plaintiff. By this settlement, the only unfinished business between them was the gathering and division of the 48 acres of corn, which, at that time, had not fully matured. The plaintiff was to pay the cost of gathering it, and this was to be done for him by a new tenant, obtained by the defendant, who took possession of the farm on the day that the plaintiff vacated. It was this corn that formed the principal subject of dispute between these parties.

The plaintiff alleged in his petition that under the agreement made when he vacated the farm, each of the parties was to have one-half of the corn after it had been harvested by the new tenant, but he alleged that the new tenant failed to harvest it, and that when he, the plaintiff, discovered that the new tenant was allowing the harvesting time to go by without doing so, he went to the defendant about the matter and the defendant told him it was none of his concern and refused to allow the plaintiff to go upon the farm for the purpose of harvesting the corn.

The plaintiff also alleged that the defendant harvested a small part of the corn and fed it to his and the new tenant’s stock and allowed the remainder to remain in the field unharvested during the winter and only salvaged a small part of it the following spring, and “that in effect the defendant converted the same to his own use.”

The plaintiff also alleged that his one-half of the corn was reasonably worth $3,000.00, that, if permitted, he could have harvested the entire crop for $240.00, and that he had been damaged in the sum of $2,760.00, with interest, and that as the defendant’s conduct had been intentional and malicious, punitive damages in the sum of $2,000.00 should be awarded. He prayed for judgment accordingly.

The defendant answered setting forth his version which was that the plaintiff abandoned the farm while the corn was growing, without giving the notice required by the contract, and that the defendant, “in order to save himself loss, was required to contract with a third party to operate said farm.” In his amended answer, he cross-petitioned for damages caused by plaintiff’s alleged failure to harvest a part of the hay on the farm.

(1) At the trial the court concluded that the plaintiff’s action was in tort for conversion of the corn and the case was presented on that theory by the plaintiff against the defendant’s contention that the action was ex contractu.

The court properly charged the jury on the measure of compensatory damages, whether the action be regarded as ex delicto or ex contractu, and then told the jury that it could add to that in the event it found for plaintiff, and also that “if that wrongful taking was maliciously done, or, in other words, done in a wanton and reckless manner, it could assess punitive damages.”

The jury returned a verdict for $4,980.80, which was the full amount prayed for with interest. The court overruled defendant’s motion for judgment notwithstanding the verdict, but granted his motion for a new trial. Upon the plaintiff’s motion to set aside the order granting a new trial and for a reconsideration of defendant’s motion for a new trial, the court made an order setting aside the order granting a new trial, and upon reconsideration of the motion for a new trial found the verdict excessive to the extent of $2,900.00, and, upon the plaintiff accepting a remittitur in that sum, overruled the motion for a new trial and entered judgment in the sum of $2,080.80. All this occurred at the same term of court and so while the court still had power to correct its journal in the exercise of a sound discretion. We do not find any abuse of discretion in this case.

As the jury found for the full amount of the plaintiff’s prayer, it is manifest that it found that his actual damage was $2,760.00, with interest, and as the court reduced the verdict to $2,080.80, it is manifest that the judgment is for less than the compensatory damage suffered by the plaintiff, as found by the jury. However, the court in ordering a remittitur did not indicate what items were being eliminated and we have no way of knowing in what respect the court found the verdict to be excessive.

Many errors are assigned, but most of them stem from the defendant’s contention that the plaintiff’s action was for breach of contract and that in any event it was not the kind of case in which the awarding of punitive damages is allowable.

The plaintiff made no attempt in his petition to classify his cause of action — and the law did not require him to do so. Even if he had done so and made a mistake, he would not have been bound thereby. In 31 O. Jur., 573 and 574, it is said:

“Undoubtedly a pleading should proceed upon some definite theory, but generally speaking the theory is not required to be stated in the pleading except as it is disclosed by the facts themselves. Moreover, under the Code, although the pleader may be mistaken in his theory, — in what he conceives the nature of his cause of action to be, — he nevertheless is entitled to relief if the facts alleged show him to be entitled to relief of a different nature than that which he asked for.”

The important thing is the allegations of fact. The litigant is entitled to the relief which the facts justify regardless of his theory of his case. However, if it should be necessary to find a theory in the petition, we think an analysis ■of the allegations justify the conclusion that the pleader’s theory was that it was an action ex delicto for conversion. To be sure there were averments of the terms of a contract but the effect of all the allegations was to disclose that the plaintiff was the owner of a one-half interest in a field of corn standing on defendant’s' land, title to which he could get only by the permission of the defendant, and that although there may have been an implied license to enter, it was revocable at defendant’s will and he, defendant, refused to allow the plaintiff to exercise the license and took advantage of his ownership of the land to exclude the plaintiff and appropriate in part and waste the balance of the plaintiff’s corn.

Forms of action were abolished by the Code of Civil Procedure. It may be that prior thereto the plaintiff could have sued in either contract or tort, but whether in one or the other, the measure of his compensatory damage would have been the same.

In Ketcham v. Miller, 104 Oh St, 372, the court held that punitive damages were not recoverable in an action for breach of contract. The allegations in the amended petition in that case rather clearly disclosed that the pleader’s intent was to state a cause of action for breach of contract. There was no express prayer for punitive damages. In the case at bar, the allegations are that the original contract had been performed, and the rights of the parties adjusted, leaving the plaintiff the owner of a one-half interest in this corn, which the defendant made it impossible for the plaintiff to harvest by refusing him access to it — and the plaintiff expressly prayed for punitive damages. If it is necessary to psycho-analyse the pleader, we find, as best we can, that his intent was to charge the defendant with the commission of a wrong or tort.

The question is whether the facts justified the awarding of punitive damages, should the jury conclude to do so.

While there is a great conflict in the authorities as to the soundness of the doctrine of allowing punitive damages in any civil action, Ohio is committed to the rule that, in certain cases involving fraud, malice, insult, or wanton, or reckless disregard of the legal rights of others, the awarding of such damage is permissible. In Saberton v. Greenwald, 146 Oh St, 414, it is said in the second paragraph of the-syllabus, that:

“In an action to recover damages for a tort which involves-the ingredients of fraud, malice or insult, a jury may go-beyond the rule of mere compensation to the party aggrieved and award exemplary or punitive damages. (Roberts v. Mason, 10 Oh St, 277, approved and followed.)”

And, at page 425:

“Punitive damages also are recoverable in many cases of actions ex delicto where the defendant’s conduct shows a wanton or reckless disregard of the legal rights of others, even where the gist of the cause of action is negligence.”

Again, at page 426:

“ ‘Where the acts constituting a breach of contract also-amount to a cause of action in tort, there may be a recovery of exemplary damages upon proper allegations and proof. As sometimes stated, exemplary damages are recoverable for a tort committed in connection with, but independently of, the breach of contract, where the essentials of an award of such damages are otherwise present, the allowance of such damages being for the tort and not for the breach of contract. In order to permit a recovery, however, the breach must be attended by some intentional wrong, insult, abuse, or gross negligence which amounts to an independent tort.”

In 53 Am. Jur., 895, the author says:

“Many courts recognize that exemplary or punitive damages, which in most jurisdictions are recoverable in tort actions involving ingredients of malice, fraud, or wanton and reckless disregard of the plaintiff’s rights, in addition to compensatory damages for the injury done, are properly recoverable in an action for the conversion óf personal property, or, at least, to recognize the propriety of submitting the question of the award of such damages in such action to the jury. This result has been reached where the act of the defendant was accompanied with fraud, ill will, recklessness, wantonness, oppressiveness, wilful disregard of the plaintiff’s rights, or other circumstances tending to aggravate the injury.”

In addition to Katchman v. Miller, supra, the defendant relies upon Stockyard Bank v. Seal, 27 Oh Ap, 179, and Harrison v. Spitz, 16 C. C. (N. S.) 493. We find nothing in either of these cases inconsistent with our conclusion that the plaintiff alleged a cause of action for conversion and that punitive damages are recoverable in such an action.

So we conclude that the court did not err in its instructions to the jury on the subject of damages, including punitive damages.

However, if we are wrong about this, there are other rules of appellate review that restrain us from predicating a reversal on this ground, and one is that every reasonable presumption must be indulged in favor of the validity and regularity of the judgment under review, and that only prejudicial errors that clearly appear upon the record will be considered.

As already noted, this verdict was for the full amount. It included $2,000.00 — no more and no less — as a penalty, and the rest was compensatory damage. The court granted a remittitur of $2900.00, without indicating whether he found the punitive damages unjustified as a matter of law and the compensatory damages excessive to the extent of $900.00, or whether there was some other basis for the reduction. In this situation under the rule just stated if it should be neces- ■ sary to sustain this judgment, the court would presume that the court intended to remit the punitive damages entirely and to remit $900.00 from the amount of the compensatory damage found by the jury. That would leave only the question of whether there was any error in the manner of the submission of the issues relating to the actual damages and whether the evidence of actual damage supports the judgment.

In 3 Am. Jur., 685 and 686 (sec. 1176) it is said:

“When a case has been fully and carefully tried, and the only errors found on appeal require the plaintiff’s recovery of punitive damages to be disallowed, substantial justice demands that the plaintiff should be given an opportunity to accept the reduced verdict, in lieu of reversal on account of errors in instructions on the question of punitive damages.”

For these reasons, we find no reversible error in the judgment in relation to the original inclusion of a penalty as an allowable element of damage.

(2) The defendant-appellant assigns as error the refusal of the court to give a special charge, to the effect that there was no evidence of intentional and malicious wrongdoing and, therefore, punitive damages should not be considered. We are of the opinion that there was evidence of intentional and malicious wrong and, therefore, the court was justified in refusing to give the special charge. Furthermore, from what has already been said, it can be seen that whatever prejudice would otherwise have resulted has been removed by the remittitur.

(3) The next assignment of error is that the court erred in refusing to give a special charge, that if the jury found that the plaintiff abandoned the farm, in violation of the written agreement, it should find for the defendant. We think the court properly refused to give this charge, for the reason that there was no substantial evidence upon which to predicate it.

(4) Many other assignments of error raise in one form or another the question of whether the cause of action is ex contractu or ex delicto, and whether the issue of punitive damages should have been submitted to the jury. We believe that what we have said sufficiently indicates our reasons for our conclusion that no prejudicial error was committed by the court in these respects.

(5) The remaining question is whether the evidence of actual damage is sufficient to sustain the judgment.

The plaintiff prayed for $2,760.00 as compensatory damages, with interest. The jury awarded him $2,980.80 compensatory damages, which was the full amount prayed for with interest. The judgment is for $2,080.80. There was abundant evidence that the plaintiff’s one-half of the corn had a net worth of more than the amount of the judgment.

For these reasons, the judgment is affirmed.

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


author: By WISEMAN, J.:

text:
    BENNETT, Plaintiff-Appellee, v. DAYTON MEMORIAL PARK AND CEMETERY ASSOCIATION et, Defendant-Appellee, and OHIO LIQUIDATING COMPANY, Defendant-Appellant.
    Ohio Appeals, Second District, Montgomery County.
    No. 2070.
    Decided November 2, 1949.
    Howard P. Williamson, Dayton, for plaintiff-appellee.
    Cowden, Pfarrer & Crew, Dayton, for defendant-appellee, Winters National Bank and Trust Company.
    Froug & Froug, Dayton, for defendant-appellant, The Ohio Liquidating Company.
   OPINION

By WISEMAN, J.:

Submitted on motion of the defendant-appellee, The Winters National Bank and Trust Company of Dayton, to dismiss the appeal of the Ohio Liquidating Company.

The motion is grounded on the fact that the Ohio Liquidating Company was substituted as a party to the action in the place of the Stockholders Realization Corporation’ by entry made by the Common Pleas Court after judgment was entered. The entry provided that the order of substitution should be entered nunc pro tunc as of November 7, 1944, which was prior to the date of the judgment.

The contention of counsel for the bank is that only parties to the action are entitled to file an appeal from a judgment; that the judgment terminates the action; that any attempt on the part of the court to substitute a party after judgment is a nullity and that such substituted party has no right to take an appeal from the judgment. Counsel also contends that §11261 GC, which provides for substitution of parties, gives the court authority to make substitution only while the action is pending and prior to judgment. We do

not agree. Sec. 11261 GC, in part provides as follows: “On any other transfer of interest, the action may be continued in the name of the original party, or the court may allow the person to whom the transfer is made to be substituted for him.” There is no time limitation mentioned in this section within which the court may act. But we are also required to observe the provisions of §11363 GC, which provides, in part, as follows: “Before or after judgment, in furtherance of justice and on such terms as it deems proper, the court may amend any pleading, process, or proceeding, by adding or striking out the name of any party, * * * etc.” Under this section an amendment which is allowable may be made at any stage of the proceedings. It may be made after judgment as well as before judgment. However, after judgment the court should exercise its authority with caution in furtherance of justice. It therefore becomes immaterial that the entry substituting the Ohio Liquidating Company for the Stockholders Realization Corporation was entered nunc pro tunc. In support of the proposition that the court may exercise such power under §11363 GC after judgment the Court cites the following authorities: Henry v. Jeans, 48 Oh St 443, 28 N. E., 672; Industrial Gas Company v. Jones, 62 Oh Ap 553, 24 N. E. (2d) 830; Vol. 30 O. Jur., 800, 804, Parties, Sections 71, 73, Vol. 31 O. Jur., 944, 955, Pleadings, Sections 338, 339, 348. Motion to dismiss will be overruled.

MILLER, PJ, and HORNBECK, J, concur.


text:
    BENNETT, Plaintiff-Appellee, v. DAYTON MEMORIAL PARK AND CEMETERY ASSOCIATION et al, Defendants-Appellees, WALKER, Defendant-Appellant.
    Ohio Appeals, Second District, Montgomery County.
    No. 2070.
    Decided November 9, 1949.

      Howard P. Williamson, Dayton, for plaintiff-appellee.
    Cowden, Pfarrer & Crew, Dayton, for The Winters National Bank & Trust Co., defendant-appellee.
    Myers, Mills, Boesch & Cline, Dayton, for George R. Walker, .appellant.
   OPINION

By WISEMAN, J.:

Submitted on motion of the defendant-appellee, The Winters National Bank and Trust Company of Dayton, to dismiss the appeal of the defendant-appellant, George R. Walker, •on questions of law and fact and to retain said appeal only on questions of law.

The action was one in chancery, which was instituted November 24, 1941. A referee was appointed who, after extended hearings, reported his findings of fact and law to which exceptions and motions for new trial were filed and overruled. The referee’s report was confirmed in an entry ■by the Common Pleas Court which was journalized on July 1, 1949. This was a final order from which an appeal could be taken. The appellant, George R. Walker, on July 20, 1949, filed his notice of appeal on law and fact from the judgment entered July 1, 1949. However, no appeal bond was given as required by §13223-6 GC.

The record further shows that on July 5, 1949 the appellant ■filed his application for rehearing and/or motion for new trial, which was overruled on July 20, 1949. Thereafter, on July 25, 1949, the appellant filed a notice of appeal on questions of law and fact from the final order entered on July 1, 1949 and from the entry overruling the application for xe-hearing and/or motion for new trial entered July 20, 1949. On July 25, 1949 an appeal bond in the sum of one thousand dollars was filed.

Inasmuch as this action was instituted in 1941, §11578 and §12223-7 GC, as amended October 11, 1945 have no application. The time within which a motion for new trial was required to be filed is controlled by §11578 GC as it existed prior to the amendment. Von Gunten v. Coal Company, 147 Oh St 511, 72 N. E. (2d) 253; Wainscott v. Young, 81 Oh Ap 21, 77 N. E. (2d) 102; Heiland v. Hildebrand, 81 Oh Ap 25, 70 N. E. (2d) 678.

Under §11575 GC, prior to the amendment effective October 11, 1945, a motion for new trial was defined as follows: “A new trial is a re-examination, in the same court, of an issue of fact, after a verdict by jury, a report of a Referee or Master, or a decision by the court.” (Emphasis ours.) Under the provisions of §11479 GC, the report of the referee stands as the decision of the court, subject to review, and judgment, may be entered thereon as if the court had tried the action. Milling Co. v. Slosser, 140 Oh St 445, 45 N. E. (2d) 306, Vol. 35 O. Jur., 127, Section 44. In the instant case motions for new trial were properly filed before the referee which were overruled. The motion for new trial filed on July 5, 1949 was not “duly filed” and therefore had no legal force or effect and did not toll the statute with respect to the time within which notice of appeal was required to be filed. See §12223-7 GC, prior to amendment effective October 11, 1945.

Since the motion for new trial which was filed on July 5, 1949 had no legal force or effect to toll the statute it. follows that the notice of appeal given on July 25, 1949 from the order overruling the motion for new trial was not filed within time and, likewise, the bond filed on July 25, 1949 was not filed within time and has no legal force or effect. The appellant is required to rest his right to appeal on the notice of appeal given on July 20, 1949. However, the failure to give the appeal bond within time reduces the appeal to-one on questions of law. Sec. 12223-22 GC.

The Court will make no order with respect to the filing of a bill of exceptions, assignments of error or briefs until such time as counsel in this case have had an opportunity to confer with the Court.

The motion to dismiss the appeal on questions of law and fact will be sustained. The appeal is ordered to stand as an appeal on questions of law.

MILLER, PJ, and HORNBECK, J, concur.


author: By WISEMAN, J:

text:
    BENNETT, Plaintiff-Appellee, v. DAYTON MEMORIAL PARK AND CEMETERY ASSOCIATION et al, Defendants-Appellees, WALKER, Defendant-Appellant.
    Ohio Appeals, Second District, Montgomery County.
    No. 2070.
    Decided March 16, 1950.
    Howard P. Williamson, Dayton, for plaintiff-appellee.
    Cowden, Pfarrer & Crew, Dayton, for The Winters National Bank & Trust Co., Defendant-Appellee.
    Myers, Mills, Boesch & Cline, Dayton, for George R. Walker, Appellant.
   OPINION

By WISEMAN, J:

Submitted on motion of the defendant, The Winters National Bank and Trust Company of Dayton, to strike from the files the bill of exceptions heretofore filed by George R„ Walker, defendant-appellant, on three grounds:

First, the bill of exceptions was not allowed and signed by the Referee and returned with his report to the Common Pleas Court, as required by law.

Second, the bill of exceptions was not allowed and signed by the Referee within the time required by law.

Third, the bill of exceptions was not before the Common Pleas Court at the time of the entry of judgment on the report of the Referee from which judgment this appeal is taken.

The transcript of the docket and journal entries shows that the Referee was appointed July 3, 1943, and that the Referee, after extended hearings, filed with the trial court a report of separate findings of fact and conclusions of law on February 6, 1948. To the report of the Referee the appellant, George R. Walker, filed a motion for a new trial and exceptions, which were overruled in December, 1948. On July 1, 1949, the Court of Common Pleas rendered final judgment on the report of the Referee. From this judgment the appeal is taken.

The appeal of George R. Walker was dismissed as an appeal on questions of law and fact and retained as an appeal on questions of law in an entry filed in this Court on November 25, 1949. In this entry, in compliance with the provisions of §11564 GC, thirty days from the date of the entry was fixed as the time within which to file a bill of exceptions. The bill of exceptions was filed in the trial court on December 13, 1949, and was later signed and approved by both the Referee and the trial judge. The bill was filed in this Court on December 27, 1949.

In the entry appointing the Referee the court ordered the Referee to have the testimony of the witnesses reduced to writing, but did not require the Referee to report the testimony to the trial court. The failure of the Referee to file a bill of exceptions with his report may be due to the fact that the order appointing the Referee did not expressly require it. However, whether the order of the trial court required it or not, the statutory requirements must be met ¡before the bill may be regarded as a valid bill and one which may be considered by this Court.

Is the bill properly before this Court, and may the Court consider it in determining the issues raised by this appeal? When a matter is referred the proper procedure to be followed by the Referee with respect to a bill of exceptions is set forth in §11484 GC, which provides:

“‘The referees shall sign any true exceptions taken to an order or decisión by them made in the case, and return it with their report to the court which made the reference.”

In the instant case the bill of exceptions was not returned by the Referee with his report to the court. The bill was not returned to the court until six months after final judgment was rendered. Manifestly, the contents of the bill were never before the trial court before final judgment was entered. The court was confined to a consideration of the report of findings of fact and conclusions of law of the Referee. The court was required to accept the facts found by the Referee and determine whether, on the basis of the facts found, the Referee had properly applied the law in arriving at his decision.

Appellant contends that the trial court considered the evidence taken before the Referee. Whether the trial court was informed as to certain items of evidence is not disclosed by the record. The record shows clearly and conclusively that the bill was not before the court prior to entering final judgment. Moreover, the judgment entry of the trial court recites that the matter was submitted to the court on the report of the Referee. The Referee’s report is a part of the record and will be considered by this Court.

It is axiomatic that in an appeal on questions of law the reviewing court may consider only that which was considered by the trial court and nothing more. Vol. 2, O. Jur., Part 1, page 296. Inasmuch as the trial court did not have before it the bill of exceptions and could not have considered its contents, this Court may not consider it. A reviewing court may not consider the contents of a bill of exceptions filed by the Referee when it appears that the bill was not returned to the trial court until after final judgment was rendered by the trial court on the report of the Referee. The record in this case shows clearly the underlying reason for the statutory requirement that the Referee return the bill of exceptions to the court with his report; otherwise the court may only consider the report of the Referee in rendering final judgment and, in that event, it necessarily follows that the reviewing court may consider only the report of the Referee in reviewing the final judgment.

We find no reported case in Ohio deciding this precise question. However, a few cases are reported which are helpful in determining the questions presented. In State, ex rel Klorer v. Fimple, Judge, 91 Oh St 99, 110 N. E. 253, which was a mandamus action, the relatrix sought an order requiring the trial judge to allow and sign a bill of exceptions in a matter which had been referred. No bill of exceptions was returned by the Referee. The court held that only the Referee could allow a bill of exceptions. On Page 102 the court discusses the effect of the failure of the Referee to file a bill:

“The only provision for a bill of exceptions in cases so tried is in §11484 GC, that ‘The referees shall sign any true exceptions taken to an order or decision by them made in the case, and return it with their report to the court.’ This. provision is obviously necessary to bring before the court questions arising before a referee who reports only his conclusions of fact and law, his conclusions of fact having the effect of a special verdict, for in such case without a bill signed by him neither the propriety of his procedure nor the correctness of his conclusions of fact could be determined by the court.” (Emphasis ours.)

Again, on page 102, the court stated:

“The function of a bill of exceptions is to bring upon the record matters material to further judicial inquiry which would not otherwise appear. The trial judge here naturally and properly answers that he has no personal knowledge respecting the proceedings before the referee. For information upon that subject he was confined to the referee’s report. That report was before him as the sole basis of his action in overruling exceptions and in rendering judgment. It is equally available to the court of appeals. It is to be observed that in this case the report of the referee was confirmed and judgment rendered upon it and upon it alone. There could, therefore, have been no evidence whatever before the court of common pleas that was not embraced in the report of the referee, already a part of the record.” (Emphasis ours.)

In Milling Co. v. Slosser, 140 Oh St 445, 45 N. E. (2d) 306, the above case was cited with approval.

In Bryan v. Woodmansee, 25 C. C. N. S. 481, the bill of exceptions was signed by the trial judge but not by the Referee. A motion to strike the bill of exceptions from the files was sustained on the ground that the bill should have been allowed by the Referee. See also Guthrie and Sons v. The Angosta Milling Company, 17 C. C. 256, holding that the bill must be allowed by the Referee.

Since the bill must be allowed by the Referee and not by the trial court, the fact that the bill in the instant case was signed and approved by the trial judge has no legal significance. The bill was finally allowed and signed by the Referee. But the fault lies in the fact that it was not allowed and returned seasonably with the report to the trial court and in time to be considered by the trial court. The order of this Court fixing the time within which a bill of exceptions may be filed did not assume that a legal bill of exceptions was obtainable. If the Referee had filed .a bill with his report, as the statute requires, the trial court then would have had the questions raised therein before it before rendering a final judgment and a bill of exceptions would now be obtainable and could be considered by this ■Court.

The proper procedure to be followed by the Referee in such matters is stated in Fields v. Jones, 26 N. P. N. S. 445.

In Vol. 35, O. Jur., 135, Section 51, it is stated that:

“The bill of exceptions must be filed with the Referee’s report, and not afterwards.”

Motion to strike the bill of exceptions from the files is hereby sustained.

MILLER, PJ, and HORNBECK, J, concur.


author: By DOYLE, J:

text:
    TAYLOR, Plaintiff-Appellee, v. CLEVELAND (City), Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 21398.
    Decided March 22, 1950.

      Wm. J. Corrigan, Charles I. Russo, Joseph B. Corrigan, Anthony F. Gaughan, Timothy F. McMahon, Cleveland, for plaintiff-appellee.
    Lee C. Howley, Law Director, Charles W. White, Asst. Law Director, Cleveland, for defendant-appellant.
    (GUERNSEY, PJ, of the Third District, HUNSICKER and DOYLE, JJ, of the Ninth District, sitting by designation in Eighth District.)
   OPINION

By DOYLE, J:

James E. Taylor is a lieutenant in the fire department of the City of Cleveland. The litigation in the Common Pleas Court involved the right of the lieutenant to recover a money judgment against the City of Cleveland upon a claim for overtime pay for work performed in his capacity as such fireman.

The action is one of six or seven hundred like actions against the city by individual members of the department, and was selected by counsel as a test case.

The position of affairs as we find it to be in this appeal is a money judgment rendered upon a verdict of a jury in the amount of $3,688.96 in favor of the fire department lieutenant and against the city. The appeal now lodges the case in this court for affirmance or reversal of the judgment.

The petition of the claimant asserts that: — he, against his protests, was ordered and required to work for periods in excess of eight hours a day and forty-eight hours a week, and did

“work at his * * * duties for periods averaging seventy-two * * * hours per week”

he was required to “work under a so-called platoon system inaugurated by the defendant;” he worked “on the basis of a socalled twenty-four hour * * * shift, whereby said plaintiff, as well as other city firemen, was on duty for a period of twenty-four * * * hours, and then relieved for a like period of twenty-four * * * hours.”

It was further claimed that:

“said platoon system was inaugurated and kept in force, by defendant, without authority, and for the purpose of avoiding and evading the provisions of the charter of said city limiting the hours of labor, as aforesaid, and for the sole purpose of compelling and requiring plaintiff to work without compensation.”

The claimant then prayed for an award of $11,963.28 as the fair and reasonable value of his services on the basis of “time and one-half” pay for the number of hours worked in excess of the hours contemplated in the eight hour day provision of the city charter.

In addition to pleading the above, the claimant amended his petition, over the objection of counsel for the city, after he had rested his case, by inserting the provisions of Sec. 284 of the ordinances of the city of Cleveland. This ordinance will be set out later.

There are many assignments of error urged by the city and several hundred pages of briefs filed, which argue pro and con the claims of the respective litigants. No useful purpose can be served by discussing each one of them. Basic laws will be set out with a critical analysis of the facts in their relation to them.

1. Art. II, Sec. 37 of the Constitution of Ohio, provides:

“Except in cases of extraordinary emergency not to exceed eight hours shall constitute a day’s work, and not to exceed forty-eight hours a week’s work, for workmen engaged on any public work carried on or aided by the state, or any political subdivision thereof, whether done by contract, or otherwise.”

This provision of the constitution applies to construction work performed on public projects, and its very language shows-it not to be self-executing. The enabling legislation enacted by the general assembly is contained in §17-1 GC which, states in substance the provisions of the constitution and makes unlawful, required work in excess of the hours stipulated. The section, furthermore, specifically provides that it “shall be construed not to include firemen in cities and villages and policemen in villages.”

The question of the interpretation of the language “for workmen engaged on any public work carried on or aided by the state, or any political subdivision thereof, whether done by contract or otherwise” was presented to the Supreme-Court of Ohio in 1925, in a case which grew out of the indictment of the director of public service of the City of Akron for the alleged unlawfully required work of city employees-engaged in operating the water works of the City of Akron, located in the adjoining county of Portage. It was there held that the Constitution of Ohio and the enabling statute-(§17-1 GC) relate solely to work performed on the construction of public improvements and not on their “maintenance and operation.”

State v. Peters, 112 Oh St 249.

Under this interpretation of the constitution, no debatable-constitutional question can be raised by virtue of the language-in the enabling statute specifically excluding firemen from its operation. Firemen are not employed to construct public works.

See also:

Clements et al v. Sherwood, Dir. of Public Welfare 70 Oh Ap 266.

It is our conclusion, therefore, that the constitution of' Ohio does not now and never has established a policy for the work day or work week for members of the fire department in cities of this state.

2. Proceeding now to the charter of the city of Cleveland, we encounter Section 196 as amended in the year 1917. It provides:

“Except in cases of extraordinary emergencies not to exceed eight hours shall constitute a day’s work and not to exceed forty-eight hours a week’s work, for any city employee of the City of Cleveland in the classified service thereof and for any workmen engaged in any public work carried on or aided by the municipality whether done by contract or otherwise. The council shall by ordinance, provide for the enforcement of the provisions of this section.”

This provision of the charter is more comprehensive in its scope than the provisions of the state constitution. It provides for a work day and work week “for any city employee of the City of Cleveland in the classified service thereof” and firemen come within the bounds of classified service. The provision, however, is not self-executing “within the definition that a self-executing provision is one which supplies the rule or means by which the right given may be enforced or protected or by which a duty enjoined may be performed.”

Stange v. City of Cleveland 94 Oh St 377 at p. 380.

In fact, the charter provision itself states that council shall by ordinance provide for the enforcement of its provisions. Such language indicates that it is not self-executing and unless ordinances are passed by the city council carrying it into effect, the provision of the charter would not be effective.

See: Ellis v. Urner etc 125 Oh St 246 at p. 250

3. The next step in this opinion will be the determination of the source of the authority to provide for a work day and work week for firemen in cities of this state.

As has been heretofore shown, the state constitution does not provide such power. The charter of the city of Cleveland does not provide such power except through the enactment of enabling legislation under the authority of the state, as will be hereinafter demonstrated.

Under the “Home Rule” amendment of the constitution of Ohio (Art. XVIII) there was not granted to municipalities absolute powers of local self-government. The powers granted were limited to matters and things purely local in character. The legislature of the state was never stripped of its authority to legislate on matters pertaining to the preservation and protection of public safety and health, because such matters are of state-wide concern. The power given to municipalities to legislate on such matters was, and is, only such power as is specifically granted, plus the power to enact legislation which is not in conflict with the general laws of the state.

State ex rel Mowrer v. Underwood, 61 Oh Ap 103; affirmed, State ex rel Mowrer v. Underwood, 137 Oh St 1.

“2. Matters pertaining to the fire protection of a municipality are of state-wide concern and subject to regulation by the general assembly.”

State ex rel Giovanello v. Village of Lowellville, et al 139 Oh St 219.

A search of the statutes of the state reveals that the legislature has only spoken of a work day and work week for firemen by saying that cities in the state shall adopt the so-called two-platoon system, unless there has been adopted by a city “the eight hour regulation for its fire department.” (Sec. 17-l[a] GC). In this legislation, cities ■are specifically granted the power to legislate in respect to an “eight hour regulation” for firemen. If cities do not so legislate, the hours of duty shall be those set out in the .state law.

Sec. 17-1 (a) GC, as amended in 1939, and in force on the date from which over-time compensation is here sought, provided:

“It shall be the duty of the chief of the fire department ■of each city to divide the uniform force into not less than "two platoons, and the said chief shall not keep a platoon of the uniform force on duty more than twenty-four consecutive hours, except in cases of extraordinary emergency, after which the platoon serving twenty-four hours shall be allowed to remain off duty for at least twenty-four consecutive hours. Each individual member of the platoons in addition to receiving a minimum of twenty-four hours off duty in each period of forty-eight hours shall receive an additional period ■of twenty-four consecutive hours off duty in each period pf fourteen days. The chief of the fire department shall arrange the schedule of working hours to comply with the provisions <of this section. In each city all employees of the fire department shall be given not less than two weeks leave of absence annually, with full pay. The provisions of this section relating to off duty periods shall not apply to any (City that may have adopted or may hereafter adopt the eight hour regulation' for its fire department, but the provisions relating to the two weeks leave of absence shall apply thereto.” (118 O. L. 666.)

Reference is made to the amendment of this section in the year 1945, 121 O. L. 17. The amendment does not substantially change the legislation and does not affect the issues here presented.

It thus appears that, under the exclusive power of the legislature of the state to regulate fire departments in the various cities in the state, that body has provided for the two-platoon system for all cities, unless the cities themselves, under the authority delegated, have legislated otherwise.

4. We now direct our attention to the ordinances of the city, if any, enacted pursuant to the delegated power given in §17-1 (a) GC supra. We have heretofore determined that the charter provision is not self-executing.

It appears that, for a period of many years prior to the date in 1940 from which the plaintiff commences his claim, there were no ordinances regulating the hours of work for firemen. Nor have any ordinances been enacted since 1940 on this subject, unless it can be said, as asserted by the plaintiff and concurred in by the trial judge, that an ordinance enacted in 1943 and inserted into the plaintiff’s petition over the objection of the city after the plaintiff had rested his case, provides for an eight-hour day and forty-eight hour week, and overtime pay for firemen.

This ordinance is as follows:

“Sec. 284. Whenever it shall be necessary that one or more salaried officers or employees shall work beyond the number of hours regularly constituting a work day or work week in the division or department concerned, such officers and employees shall be compensated for such overtime work at the rate per hour computed by dividing the annual salary fixed for the position by the number of hours regularly constituting a work year for the concerned division or department; provided, however, that any appointing authority may, in lieu of authorizing compensation for overtime as herein provided, grant to the affected officer or employee time off from the performance of duty during regular hours of work in an amount equal to such overtime.”

This ordinance, under its terms, provides only for compensation for overtime work “beyond the number of hours regularly constituting a work day or work week in the division or department concerned.” (Emphasis ours.) The hours regularly constituting a work day or a work week in the fire department of Cleveland were those hours provided for under the platoon system set out in the statutes and incorporated into the operation of the fire department. The record, before us shows that this department now operates, and, for many years past has operated, under the platoon system, described in the plaintiff’s petition and required under the state law in the absence of local ordinances. The hours contemplated under this system are and were the hours regularly ■constituting a work day and work week in the department.

In respect of this ordinance, therefore, we must therefore and do conclude that, insofar as firemen are concerned, overtime pay cannot be allowed them except for work over and beyond the hours provided for under the platoon system. In the absence of pertinent legislation by the city-council, the statute of the state spells out the number of hours which regularly constitute a work day or work week in the fire department.

The record before us does not show that the claimant worked a greater number of hours than those contemplated under §17-1(a) GC (in fact he does not so claim) and as a consequence thereof his case must fail.

In summation, we conclude that:

(1) The provision of the constitution of Ohio hereinbefore set out (Art. II, Sec. 37) does not apply to the maintenance of a fire department.

(2) The charter of the city is not self-executing and therefore cannot be said to be municipal legislation pursuant to authority delegated by the state.

(3) City Ordinance No. 234, in so far as the fire department is concerned, does not permit overtime pay for work beyond an eight hour day and forty-eight hour week. If applicable at all, it would apply only to overtime pay for work beyond that stipulated in the state code, and followed in the department for the past quarter century and more.

(4) The evidence does not show, nor does the petitioner ■claim, that he worked in excess of the hours specified under §17-1 (a) GC.

5. In view of the assertions made in the pleadings and statements made in the briefs of the litigants, it is, we think appropriate to make the following observations:

(a) “The incumbent of an office has not, under our system of government, any property in it. His right to exercise it is not based upon any contract or grant. It it conferred upon him as a public trust. The nature of the relation of a public officer to the public is inconsistent with either a property or contract right.”

Wright v. City of Lorain, 70 Oh Ap 337 at page 341 (1942). See also: Hull, Excrx. v. City of Cleveland, 79 Oh Ap 87 (1948)

“1. A public officer or public general employee holds his position neither by grant nor contract, nor has any such officer or employee a vested interest or private right of property in his office or employment.”

State ex rel Gordon, City Atty. v. Barthalow, Auditor, et al, 150 Oh St 499 (1948)

(b) The right of all public employees to receive pay for their services to the public is derived solely from laws enacted for such purpose (ex lege) and an implied obligation or an implied contract to pay for services cannot be successfully maintained in this state.

(6) Under the views here expressed, we find it unnecessary to pass upon the claim that the trial court erred in allowing, over objection, an amendment to the petition after the plaintiff had rested his case by including the context of ordinance No. 284 as enacted in 1943, nor do we find it necessary to pass on certain other errors asserted.

It is the conclusion of this court that the plaintiff has failed to make a case under any circumstances, and therefore the court erred in the following respects:

“In overruling defendant’s motion for a directed verdict at the close of all the evidence.”

“In holding in connection with its ruling on the second motion for a directed verdict that Section 196 of the Charter and Section 284 of the Municipal Code of Cleveland, together, constituted a contract between plaintiff and defendant for the payment of compensation for any time plaintiff was required to be on duty in excess of 48 hours a week;”

“In its charge by instructing the jury that the question whether plaintiff worked any overtime was to be determined from the Charter and Municipal Code provisions;”

“In overruling defendant’s motion for a new trial.”

“In entering judgment for the plaintiff instead of for the defendant.”

The judgment will be reversed and final judgment entered for the defendant appellant, City of Cleveland. Order see journal.

GUERNSEY, PJ, HUNSICKER, J, concur.


author: By GRIESINGER, J.

text:
    MURPHY v. CITIZENS DISCOUNT CORPORATION.
    Common Pleas Court, Jefferson County.
    No. 39843.
    Decided January 16, 1950.
    Yonkee & Murphy, Charles Snyder, Jr., Steubenville, on behalf of the plaintiff.
    Bernard T. McCann, Steubenville, on behalf of the defendant.
   OPINION

By GRIESINGER, J.

The plaintiff in his petition says that the defendant is a corporation and engaged in the' business of lending money to the general public; that he purchased a 1941 Ford sedan for $925.00, a 1940 Chevrolet sedan for $675.00, and a 1941 Chevrolet coupe for approximately $600.00, and in accordance with the floor plan financing arrangement executed and delivered three promissory notes in said amounts and turned over to the defendant the certificates of title for said vehicles; that he was unable to sell said vehicles and signed in blank and left with the defendant the certificates of title to said automobiles in accordance with an understanding with the defendant that said notes would thereby be fully satisfied and discharged, and the defendant is now claiming $663.77 and threatens suit and so forth to collect the same.

Plaintiff prays for temporary injunction .to prevent the defendant from taking judgment and collecting said sum; that it be determined that the plaintiff is not indebted to defendant and said notes be ordered cancelled and delivered over to plaintiff.

Plaintiff also prays for temporary and permanent injunction and other relief. Temporary injunction was granted upon filing suit.

To the petition of plaintiff defendant filed an answer and cross-petition, in which it admitted that the plaintiff purchased said automobiles, and that the plaintiff executed to the defendant three promissory notes to finance the same and that the defendant claims there is due it $663.77 with interest at eight percent per annum.

Defendant also admitted taking possession of said vehicles, and that it is a corporation engaged in making loans and was so at all times mentioned in plaintiff’s petition.

Defendant then denied all the other allegations of plaintiff’s petition.

Defendant in its cross-petition, in substance, says that on January 6, 1947, the plaintiff executed his note to the defendant in the sum of $885.00 with interest at the rate of eight percent per annum. No payments were made on said note. The defendant was required to pay storage bill in the sum of $20.00 and repair bills in the sum of $365.00 to put said automobile in salable condition. The 1941 Chevrolet automobile was, on April 26, 1948, sold for $885.00. There is now due defendant the sum of $385.00 with interest at eight percent per annum from April 26th, 1948, on said note.

Defendant also says that on July 31, 1947, the plaintiff executed and delivered to defendant his promissory note in the sum of $908.40 with interest at eight percent per annum; that no payment was made on the note, and the 1941 Ford was sold for $805.00 on March 18, 1948. Defendant paid for repairs in the sum of $130.00, leaving a balance of $278.77, with interest at the rate of eight percent per annum from March 18, 1948.

Defendant prays for judgment in the sum of $663.77.

To the defendant’s answer and cross-petition the plaintiff filed what he termed an answer to cross-petition, and in which the plaintiff says that the promissory notes set forth in the defendant’s cross-petition are unenforcible, illegal and void for the reason that the defendant has charged and is attempting to collect a sum of money in addition to the amount which it is permitted by law to collect from the plaintiff, who is one of its borrowers.

The plaintiff also denied the matters set forth in the defendant’s cross-petition and prayed that the promissory notes sued on in defendant’s cross-petition be held void, unenforcible and defendant’s cross-petition be dismissed.

The evidence in this case disclosed that the plaintiff is a corporation, organized and existing under the laws of Ohio, and that it also has a small loan license issued by the State of Ohio, Department of Commerce, Division of Securities, No. 46-612, for the purpose of carrying on a small loan business at Steubenville, Ohio.

The evidence also disclosed that on January 6, 1948, the plaintiff executed his promissory note in the sum of $885.00 with interest at eight percent per annum and purchased a 1941 Chevrolet. The plaintiff at said time also executed and delivered to the defendant a chattel mortgage on said vehicle to secure the payment of said note.

That on July 31, 1947, the plaintiff purchased a 1941 Ford for $908.40 and executed his promissory note to the defendant for a loan in said sum with interest at eight percent per annum. The plaintiff also executed and delivered to the defendant a chattel mortgage on said vehicle to secure the payment of said note. Plaintiff’s Exhibit 1.

These chattel mortgages, according to the testimony, each contained a proviso empowering the mortgagee to sell at public or private sale and “out of the proceeds thereof to retain and pay said note with interest and other proper charges and to pay the expenses of said sale, including expenses incurred in the taking possession of and keeping said property, and to pay any and all liens that may be thereon, having priority over this mortgage, paying charges for placing such goods and chattels in good salable condition, rendering the surplus money, if any, to the mortgagor.”

The evidence also disclosed that the plaintiff made no payment to the defendant on these loans but later the plaintiff executed in blank bills of sale for the above cars and they were sold for the prices set forth in the pleadings.

There was no serious attempt on the part of the plaintiff to show that the defendant did not secure a reasonable price for these automobiles when they were sold. There is a serious dispute and conflict in the testimony as to whether or not plaintiff and defendant agreed, when plaintiff turned over to defendant each of the bills of sale, it was in satisfaction and discharge of the promissory notes in question.

Now there is no question but that the defendant is a corporation, licensed to engage in the business of lending money under the small loan act of Ohio and was so engaged at its place of business, at 317 Washington Street, Steubenville, Ohio, at the time of the transactions in question in this case, and is not exempt under §8624-51 (b).

In addition to the eight percent interest provided in said' notes the defendant has attempted and is attempting to collect in this action storage charges and also repair bills which is claimed were necessary for it to pay to secure possession of one vehicle and to pay in order to put the other vehicle in salable condition, as provided in said chattel mortgages. These charges, together with the eight percent interest provided in the note, would amount to more than the defendant would have been permitted to charge as licensee under the provisions of the small loan act.

The defendant claims that said loans were not made by it as a licensee under the small loan act but instead were made by it under its general corporate powers to lend money.

Defendant says the loans in question were made by it pursuant to §8303 GC which permits the charge of interest at a rate not exceeding eight percent per annum; that this loan is controlled by the provisions of §8303 GC and not by the provisions of the small loan act and, therefore, these loans would not be void under the law of Ohio.

In this case the evidence clearly established there were three separate and distinct loans, each loan being for less than one thousand dollars but together amounting to more than one thousand dollars, and the Court so finds. This being so, in the opinion of the Court, §8624-51 GC applies. This section reads as follows:

“(a) No person shall engage in the business of lending-money, credit, or choses in action in amounts of one thousand dollars or less and exact, contract for, or receive, directly or indirectly, on or in connection with any such loan, any charges which in the aggregate are greater than the interest that the lender would be permitted by law to charge for a loan of money if he were not a licensee under this act, except as provided in and authorized by this act and without first having obtained a license from the division.

“(b) Anything in this act to the contrary notwithstanding, the same shall not apply to any person doing business under and as permitted by any law of this state or of the United States, relating to banks, savings banks, savings societies, trust companies, credit unions, savings and loan associations substantially all the business of which is confined to loans on real estate mortgages and evidences of their own indebtedness, or licensed pawnbrokers, but licensed pawnbrokers may be licensed hereunder.

“(c) The provisions of subsection (a)- of this section shall apply to any person, who by any device, subterfuge, or pretense whatsoever shall charge, contract for, or receive greater interest, consideration, or charges than is authorized by section (a) hereof for any such loan or use of money or for any such loan, use or sale of credit, but nothing herein shall preclude the acquiring, directly, or indirectly, by purchase or discount, of a bona fide obligation for goods or services when such obligation is payable directly to the person who provided such goods or services. The refinancing or extension of any existing obligation with charges greater than eight percent per annum shall be considered a loan within the meaning of this act.

“(d) Any person and the several members, officers, directors, agents, or employees thereof who shall violate any provisions of this section shall be guilty of a misdemeanor and upon conviction thereof shall be punishable by a fine of not more than five hundred dollars nor less than one hundred dollars for the first offense or by a fine of not more than one thousand dollars nor less than two hundred dollars or by imprisonment of not more than six months, or by both such fine and imprisonment in the discretion of the court for a second or subsequent offense. Any contract of loan in the making or collection of which an act shall have been done which violates this section shall be void and the lender shall have no right to collect, receive, or retain, any principal, interest, or charges whatsoever.”

It must be remembered that the defendant admitted, and the undisputed facts established, that the defendant was engaged in the business of lending money in amounts less than one thousand dollars, so whether the defendant acted as a licensee or under its general corporate powers it did make the two loans in question, each of which was for less than a thousand dollars, and each of which was a separate and distinct transaction, and it was forbidden by the quoted section to contract for or receive, directly or indirectly, on account of such loan “any charges which in the aggregate are greater than the interest that the lender would be permitted by law to charge for any loan of money if he were not a licensee under this act.”

The defendant, not exempt under §8624-51 (b) GC, is engaged in the business of lending money in amounts of one thousand dollars or less, and in this case is charging and attempting to collect charges greater than the defendant would be permitted to charge as a licensee or under the general corporate powers under the provisions of the small loan act, and the Court so finds.

Sec. 8624-51, subsection (c), GC, among other things, provides: “(c) The provisions of subsection (a) of this section shall apply to any person, who by any device, subterfuge, or pretense whatsoever shall charge, contract for, or receive greater interest, consideration, or charges than is authorized by section (a) hereof.”

Sec. 8624-51, subsection (d), GC, among other things, provides: “Any contract of loan in the making or collection of which an act shall have been done which violates this section shall be void and the lender shall have no right to collect, receive, or retain, any principal, interest, or charges whatsoever.”

Sec. 8624-62, subsection (c) GC, provides: “(c) If any charges in excess of those permitted by this act shall be charged or received, except as the result of an unintentional error of computation, the contract of loan and all papers in connection therewith shall be void and the licensee and any assignee of such contract shall have no right to collect or receive any principal or charges whatsoever. Any charges paid in excess of those provided in this section may be recovered by the payer in an action at law.”

The defendant corporation is a person, as defined in §8624-50, subsection (a) GC.

The word “charges” is defined several times in this act. Sec. 8624-50, subsection (a) GC, provides: “The word ‘charges’ shall include interest and all manner of compensation for any examination, service, brokerage, commissions, bonus, or other thing and reimbursement of any expense incurred that may be paid by a borrower to a lender or in anywise on Ms behalf or any benefit the lender may receive from a collateral contract with the borrower or his or her spouse except insurance commissions when the lender is a duly licensed insurance broker or agent as hereinafter provided, and except the fees actually paid out by a licensee to any public official for filing or recording in a public office any instrument securing the loan.”

Also §8624-65, subsection (b) GC, provides that: “Any profit or advantage of any kind whatsoever that any licensee or other person may contract for * * * or in anywise obtain by any collaterial sale, purchase * * * shall be deemed to be-charges for the purposes of regulation under this act * * *.”

The fact that a licensee is limited in the amount it can-charge in any part of an indebtedness for one or more than one loan of money, if the amount of such indebtedness is-in excess of one thousand dollars, as provided in §8624-64 GC, would not remove the transactions in the instant case from the provisions of §8624-51 (a) GC, which provides that no person shall engage in the business of lending money in amounts of one thousand dollars or less, and exact, contract for, or receive, directly or indirectly, any charges which are greater than the interest the lender would be permitted by law to charge.

If one, not exempt under §8624-51 (b) GC, engages in the business of lending money in amounts of one thousand dollars or less whether he does so as a licensee under the small loan act or as a private person or corporation, he cannot charge, directly or indirectly, more than he would be permitted by law to charge, and any attempt to do so would be a violation of §8624-51 GC and render such loan void as “the lender shall have no right to collect, receive, or retain, any principal, interest, or charges whatsoever.”

The Court, therefore, finds under the above sections of the General Code that the two notes set forth in defendant’s cross-petition are void, and unenforcible and the temporary injunction is made permanent. In view of this conclusion it is not necessary for the Court to pass on the disputed question of fact as to whether or not the certificates of title to the vehicles in question were given to the defendant in full satisfaction of any claim that the defendant had against the plaintiff.

Defendant’s cross-petition is dismissed and the costs assessed against the defendant. Special entry.