author: By HORNBECK, J:

text:
    STATE, Plaintiff-Appellee, v. HALE, Defendant-Appellant.
    Ohio Appeals, Second District, Miami County.
    No. 499.
    Decided December 14, 1955.
    James J. DeWeese, Pros. Atty., Troy, for plaintiff-appellee.
    Forrest L. Blankenship, Troy, for defendant-appellant.
   OPINION

By HORNBECK, J:

This is an appeal from judgment and sentence of defendant on his conviction by a jury of a charge of operating a motor vehicle while under the influence of intoxicating liquor, contrary to §4511.19 R. C.

Nine errors are assigned, the first of which is:

“Error in overruling of the Second Branch of the motion of defendant for Bill of Particulars stating the nature and quantity of intoxicating liquor intended to be proved as consumed by defendant accusecL” ,

The eighth assignment is:

“Error in submitting an improper form of verdict for the use of the jury, and in receiving and entering the verdict upon re-submission."

The ninth is:

“General exception to other errors of law than those specifically assigned in the other eight grounds.”

The other assignments of error, 2, 3, 4, 5, 6 and. 7, in one form or another challenge the interpretation by the trial judge of the charge against the defendant, the type and quantity of proof to justify a conviction, the interpretation of §4301.01 R. C., with particular reference to §4511.19 R. C., under which the information was drawn, and the interpretation of the term “intoxicating liquor.”

The information follows the language of §4511.19 R. C., which provides:

“No person who is under the influence of intoxicating liquor, * * * shall operate any vehicle, * * * within this State.”

The state in its behalf introduced the testimony of four witnesses; two policemen of the City of Troy, a State Patrolman and a Deputy Sheriff of the County of Miami. They testified that the defendant was driving the car from which he was taken, and three of them state that, upon observation, it was noted that his hair was mussed, eyes bleary, speech thick, breath heavy with alcohol, he staggered and used abusive and profane language toward the three officers, other than the State Patrolman. These three officers said that, in their opinion, at the time defendant was arrested or soon thereafter he was under the influence of intoxicating liquor. After defendant had been taken to jail, the officers found upon search of his car, under the right front seat, a four-fifths quart of liquid marked “Kentucky Gentlemen.” “Kentucky Straight Bourbon Whiskey,” with four to five ounces missing therefrom and the cork removed from the bottle. No officer saw defendant drink any liquor and none of them volunteered information of what liquor he had drank except that his breath was heavy with alcohol.

On the day before the trial date, defendant moved that the Prosecutor be required to give him a Bill of Particulars. Although the court noted that, in probability, the motion was not seasonably presented, he entertained it. Thereupon, the Prosecutor indicated that the State’s proof would show the time when it was claimed the offense was committed, the name of the car in which defendant was riding, and its license number. The second branch of the motion was the request that:

“The nature, description, identity and particularly, the alcoholic content of the intoxicating liquor, together with the amount of same, of influence upon the defendant at the time and place of the transaction or occurrence as claimed and referred to in the short form information in this case.”

The Prosecutor stated his witnesses did not know what the defendant drank, except that in their opinion he was intoxicated and therefore he drank intoxicating liquor; they were not in a position to prove how much he drank, although they expected to show that he was under the influence of intoxicating liquor.

After considerable discussion, counsel for defendant said:

“Perhaps I don’t understand the Court clearly. Do I understand that the Court feels it would be possible, upon proof that the defendant had nothing more to drink that 3.2, that the defendant could be under the influence of intoxicating liquor?”
“THE COURT: That’s right.”

The court then informed counsel that in his opinion, §4301.01 R. C. defining intoxicating liquor, although it included all liquids and compounds containing more than 3.2% alcohol by weight, did not thereby intend to exclude all liquids below that content as intoxicating liquor.

The respective theories of counsel for the defendant and the court are projected into the rulings, the admission and rejection of testimony, the refusal to give defendant’s special charge and the general charge, all of which are subject to exceptions by defendant and carried into the assignments of error.

Pertinent parts of §4301.01 R. C. are:

“(A) As used in the sections of the Revised Code:
“(1) ‘Intoxicating liquor’ and ‘liquor’ include all liquids and compounds containing more than three and two-tenths per cent of alcohol by weight which are fit to use for beverage purposes, from whatever source and by whatever process produced, by whatever name called and whether or not the same are medicated, proprietary, or patented. Such phrase includes alcohol and all solids and confections which contain any alcohol.”

The theory of defendant, as we interpret it, is that 3.2 beer is not intoxicating liquor, and therefore no matter how much 3.2 beer a person drank, he could not be under the influence of intoxicating liquor because it was not intoxicating in law and, therefore, could not be held to be intoxicating in fact. That the prosecutor, to sustain a conviction, no matter what the state or condition of defendant when arrested, must further prove that it was not caused by the drinking of 3.2 beer.

By the cross-examination of the State’s witnesses, defendant attempted to prove that if defendant had anything to drink, it may have been restricted to 3.2 beer. None of these witnesses knew the content of the alcohol which they detected on defendant’s breath. The defendant did not take the stand to deny that he was intoxicated when arrested, to assert that he drank nothing but 3.2 beer, or to account in any other manner for his condition.

Inasmuch as proof that defendant was under the influence of liquor, viz.; alcohol, was made beyond doubt, if the State’s witnesses are to be believed, if defendant’s contention that 3.2 beer is, as a matter of law, non-intoxicating, the question as to burden of proof and upon whom it devolves would, indeed, be interesting. However, the whole question may be resolved in favor of the rulings of the trial judge for the reason that §4301.01 R. C., wherein it defines “intoxicating liquor” has no application to the charge in this case.

The misapprehension of the scope of §4301.01 R. C. arises by reason of the first sentence thereof: “ (A) As used in the sections of the Revised Code.” This sentence, standing alone, permits of the construction that the definition of “intoxicating liquor” which follows should be given application in all sections of the Revised Code. However, all the uncertainty by reason of the foregoing sentence (A) is cleared up by an appreciation of the purpose of the Revised Code, as stated in the declaration of legislative intent found in §1.24 R. C.:

“That in enacting this act it is the intent of the General Assembly not to change the law as heretofore expressed by the section or sections of the General Code in effect on the date of enactment of this act. The provisions of the Revised Code relating to the corresponding section or sections of the General Code shall be construed as restatements of and substititued in a continuing way for applicable existing statutory provisions, and not as new enactments.”

Sec. 4301.01 R. C. is a revision of §6064-1 GC, which reads:

“This act shall be known and may be cited as the liquor control act. As used in and for the purposes of this act: The phrase ‘intoxicating liquor’ includes any and all liquids and compounds containing more than 3.2 per centum of alcohol by weight and are fit for beverage purposes, * * (Emphasis ours.)

It thus becomes manifest that the definition of “intoxicating liquor,” as found in §4301.01 R. C., is restricted to The Liquor Control Act and has no reference to or application to any other section of the Code, civil or penal.

The cases cited by the parties discussing the intoxicating nature of 3.2 beer were restricted to The Liquor Control Act, Akron v. Scalera, 28 Abs 490, affirmed 135 Oh St 65; State v. Davis, 132 Oh St 308; Kauffman et al v. City of Paulding, 49 O. O. 288; State v. Liquor Dept., 129 Oh St. 185. See also the well written opinion by Judge Brumbaugh of the Common Pleas Court of Darke County; Greenville Law Library Association v. Taylor et al., 35 Abs 30.

The other assignment of error relates to proceedings respecting verdicts submitted to the jury. The jury having considered the case returned with a verdict upon a form submitted to it. The trial judge, upon examination of the verdict, found that it was improper in that it dia not conform to the charge in the information. This error was explained to the members of the jury, proper forms of verdict were presented to them, and they were directed to retire for further deliberation and later returned with their verdict of guilty in the proper form. There was no doubt of the charge in the information upon which defendant went to trial, the trial judge instructed the jury respecting the elements of this charge. The action taken by the trial judge was authorized by §11420-10 GC. See also 39 O. Jur. 1124.

We find no error assigned well made.

The judgment will be affirmed.

MILLER, PJ, concurs.

WISEMAN, J, not participating.


source: Caselaw Access Project

author: Per CURIAM.

license: Public Domain

text:
    STATE, Plaintiff-Appellee, v. FRANKEN, Defendant-Appellant.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3769.
    Decided April 13, 1955.
    Modarelli & Modarelli, Youngstown, for defendant-appellant.
    William A. Ambrose, Pros. Atty., John R. Hooker, Asst. Pros. Atty., Youngstown, for plaintiff-appellee.
   OPINION

Per CURIAM.

Defendant was charged with, indicted for, and found guilty by a jury in the court of common pleas of unlawfully operating a motor vehicle over and upon Ohio State Route 18 in Jackson Township, Mahoning County, Ohio, at a speed of fifty miles an hour in a thirty-five mile zone, which speed it was charged was greater than was reasonable and proper having due regard to the traffic, surface and width of such highway and greater than would permit him to stop such automobile within the assured clear distance ahead.

The trial judge entered judgment upon the verdict of the jury and imposed sentence simultaneously therewith.

Defendant appealed from the judgment of the court of common pleas to this court on questions of law.

By assignments of error defendant contends:—

“A. That the verdict of the jury is manifestly against the weight of the evidence.
“B. That the verdict of the jury is contrary to law.
“C. That the court erred in not dismissing the indictment and discharging the defendant at the conclusion of state’s case, to which exceptions were noted at the time.
“D. That the court erred in not dismissing the indictment and discharging the- defendant at the conclusion of all the evidence, to which exceptions were noted at the time.”

Defendant states by brief, and such statement is supported by the evidence, that:—

“The defendant took the stand in his own behalf and testified that Route 18 at the place of the alleged violation and for a considerable distance in both directions was improved to such a width as to adequately serve four (4) motor vehicles, two (2) each travelling in opposite directions; that on the occasion indicated, the surface of the roadway was good, the weather fair, the street dry, visibility good, lights, tires, and mechanical condition of his car excellent; and that there was but one car on his side of the street within view, which he did not pass; that he passed no car or cars proceeding in the opposite directions; that he struck no object in the road nor did his car come into collision with anything; that he did stop his car when summoned to do so by the State Highway Patrolman: * *

Further defendant testified that based on his judgment and not upon the speedometer reading of his car he was operating his automobile at the time of arrest at a speed of thirty-five miles an hour; and that he could stop his automobile within the assured clear distance ahead.

Two state highway patrolmen testified that by means of a radar type speed detecting device they found defendant operating an automobile in a closely built up residential section approaching a business district, “a residential district in the radar car itself and a business district just east on Route 18,” at a speed of fifty miles an hour; that the business district to which reference is made was North Jackson, Ohio, at which place Route 18 was protected by a traffic signal.

Defendant states by brief that the question presented is:—

“Under the provisions of §4511.21 R. C., is proof of speed in excess of the limitations provided in the statute alone sufficient to warrant a finding of guilt where the defendant offers evidence as to the traffic, surface, and width of the street and other conditions, which evidence is not rebutted by the State? Specifically, then, is the judgment or conviction manifestly against the weight of the evidence?”

As suggested by the state’s attorney by brief the sole question presented for our consideration and determination is whether the verdict of the jury is against the manifest weight of the evidence.

As applicable §4511.21 R. C., provides:—

“No person shall operate a motor vehicle, trackless trolley, or streetcar in and upon the streets and highways at a speed greater or less than is reasonable or proper, having due regard to the traffic, surface, and width of the street or highway and any other conditions, and no person shall drive any motor vehicle, trackless trolley, or streetcar in and upon any street or highway at a greater speed than will permit him to bring it to a stop within the assured clear distance ahead.
“It shall be prima facie lawful for the operator of a motor vehicle, trackless trolley, or streetcar to operate the same at a speed not exceeding the following:
“(E) Fifty miles per hour on highways outside of municipal corporations.”

There is evidence that various state patrol cars were operated through the area to which reference has been made which were checked to determine whether the speedometer of the state patrol car, which is constantly checked, synchronized with the speedometer readings obtained by radar readings; that a radar check of the various ears passing through such area was then made, and the defendant was checked at a speed of fifty miles an hour in a thirty-five mile zone, and was arrested at the scene.

The record submitted to us for review conclusively shows jurisdiction, and that at the time of his arrest defendant was operating his automobile in excess of thirty-five miles an hour in a closely built-up residential section approaching a business section in the center of North Jackson at a speed greater than was reasonable and proper, and that the evidence is such that the jury may find defendant guilty as charged beyond a reasonable doubt.

Upon the evidence submitted, which in our opinion is outlined sufficiently herein, this court concludes that a question was presented for the determination of the jury, with whose findings we can not interfere on the ground that the verdict was against the manifest weight of the evidence.

Finding no error prejudicial to defendant in any of the respects urged by him the judgment of the court of common pleas is affirmed.

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


author: By COLLIER, J.

text:
    MEYERS et, Plaintiffs-Appellants, v. HOOPS, Defendant-Appellee.
    Ohio Appeals, Second District, Montgomery County.
    No. 2311.
    Decided December 14, 1955.

      Murray & Murray, Heber S. Leonard, Dayton, for plaintiffs-appellants.
    Connelly, Cumming & Kessler, Dayton, by Joseph F. Connelly, of Counsel, for defendant-appellee.
    (COLLIER, J, of the Fourth District, sitting by designation in the Second District.)
   OPINION

By COLLIER, J.

This is an appeal on questions of law and fact from a judgment of the Common Pleas Court of Montgomery County, Ohio, in an action instituted by the plaintiffs-appellants, as a partnership, seeking to recover damages from the defendant-appellee in the amount of $9,241.54, the alleged balance due on the purchase price on a contract of sale of the business owned and operated by the plaintiffs in Dayton, Ohio, and known as the Dayton Heating Supply Company.

Plaintiffs in their petition claim that on August 13, 1951, the parties entered into a written contract for the sale of said business: that the defendant paid the sum of $10,500 to the plaintiffs on the purchase price, and agreed to execute and deliver to the plaintiffs a note in said sum of $9,241.54 as final payment; that plaintiffs had performed all acts required of them to be performed in said contract, and that the defendant has failed and refused to execute and deliver a note as final payment in accordance with the terms of the contract.

The defendant in his answer admits that on August 13, 1951, the plaintiffs and defendant entered into an agreement in writing for the sale of said business and that on August 15, 1951, plaintiffs delivered to the defendant the equipment, tools and machinery, located on the premises occupied by the Dayton Heating Supply Company. Defendant denies that he paid the plaintiffs the sum of $10,500.00 on the purchase price of said business, but claimed that said sum, pursuant to the contract, was to be held in escrow and to be delivered to the plaintiffs, if and when the conditions of the contract had been fully complied with.

Defendant denies all other allegations in plaintiffs’ petition, and further avers that he was induced to enter into said contract by false representations made by the plaintiff, Meyers, acting for the plaintiffs, in the following particulars:

1. That there was in existence a certain franchise between plaintiffs and the Bard Manufacturing Company.

2. The same false representations as to the Condensation Engineering Company of Chicago, Illinois.

3. That under each of the franchises the plaintiffs represented to the defendant that they were the exclusive distributors of the products of said corporations in the Dayton area, and received said products on consignment.

4. That under said franchises plaintiffs received from said corporations commissions on all products of said corporations sold in the Dayton area, whether sold by plaintiffs or not.

5. That there was in existence a lease between plaintiffs and the Durrell Paint and Varnish Company, the owners of the building, a portion of which was occupied by the Dayton Heating Supply Company.

6. That the value of the goods, wares, stock and equipment contained on the premises occupied by the Dayton Heating Supply Company was of an approximate value of $9,200.00.

Defendant claims all these false representations were made by plaintiffs with knowledge of their falsity and were intended to mislead defendant; that defendant had a right to rely upon said representations, and did rely thereon in entering into the agreement, and because of said false representations and plaintiffs’ failure to comply with other terms of the agreement the contract is invalid.

Defendant, by way of cross-petition, in which he avers the same facts as to false representations alleged in his answer, prays for a rescission of the contract and judgment against the plaintiffs in the sum of $10,500, the amount defendant claims was placed in escrow to be applied on the purchase price when plaintiffs had fully complied with all the terms, of the contract. Plaintiffs, in their reply to defendant’s answer and their answer to defendant’s cross-petition, deny all affirmative allegations therein contained.

After a lengthy hearing, the lower court found against the plaintiffs on their petition and against the defendant on his cross-petition. While the case was pending in the lower court a receiver was appointed and sold the business and has in his possession the sum of $5,145.97. The lower court ordered the receiver to pay this sum to the defendant, after payment of the costs of the receivership.

Both parties filed notice of appeal from the final judgment rendered in the Common Pleas Court, and have perfected their appeal on lav/ and fact to this Court. The case has been submitted to this Court on a transcript of the evidence, the docket and journal entries of the lower court, and oral arguments and briefs. The evidence is very much in conflict. The plaintiffs had operated this business as a partnership for several years and on July 8, 1951 advertised the business for sale in a Dayton newspaper. Soon thereafter the defendant contacted Mr. Meyers by phone, and from that date until August 13, 1951, when the contract was entered into, there were numerous conversations between the parties in regard to questions now in dispute.

As we view the record, defendant’s principal contentions are, first, that Mr. Meyers represented to the defendant that the plaintiffs had a franchise with the Bard Manufacturing Company, a manufacturer of furnaces, and the Condensation Engineering Company of Chicago, Illinois, giving plaintiffs the exclusive right to handle the products of these corporations in the Dayton area, and that the products of these corporations were received by the plaintiffs on consignment. Secondly, that the value of the goods, wares, stocks and equipment on the premises was of the approximate value of $9,200.00 and that when the inventory was completed the value was shown to be $13,741.54, a substantial variance of $4,541.54. The testimony showing what was said and done by the parties in the negotiations which took place between the parties prior to and at the time of entering into the contract is contradictory. In a situation such as this, where there is a conflict in the testimony as to conversations, any conclusion as to where the truth lies must be based largely upon the credibility of the witnesses. Since the witnesses did not appear in person in this Court, and we have only the transcript of the evidence, we must give credence to the conclusion of the lower court in its determination of the credibility of a witness. In the case of Johnson v. Tilden, 23 C C (NS) 161, quoting the second syllabus:

“In an action in equity for the rescission of a contract, heard upon a trascript of the evidence in the court below where there is some uncertainty as to the weight of the evidence, an appellate court will accept the conclusions of the trial court which saw the witnesses face to face, and had better opportunity to judge of their credibility.”

See also 3 O. Jur. 2nd, 665, Section 713.

After reading the transcript of evidence and considering all the facts and circumstances of this transaction, we find that the defendant was induced to enter into this contract by false representations knowingly made by the plaintiffs to the defendant; that the defendant had a right to and did rely upon said representations. We have arrived at the same conclusion as the lower court on these two principal points of dispute. In regard to the alleged acts of fraud concerning the lease we find the same to be immaterial. The difference between a lease and a contract to lease is of little legal significance. 24 O. Jur. 754.

The next question to be considered is whether the defendant is entitled to a rescission of the contract and the return of the money advanced by defendant to the plaintiffs, to be applied to the purchase price. The contract was entered into August 13, 1951, and defendant took possession of the premises on August 16, 1951. On August 26, defendant learned in a conversation with Mr. Smith, an officer of the Bard Manufacturing Company, that there was no franchise in existence between the Dayton Heating Supply Company and the Bard Manufacturing Company, and that the plaintiffs had not received furnaces from this corporation on consignment; that the defendant would have to establish his own credit with this company before any merchandise would be shipped to him. With this knowledge the defendant continued to operate this business, employing eight or ten men, meeting the payroll, purchasing furnace equipment, sold some of the stock, paid the rent on the premises for the month of September, and advertised the business for sale in a Dayton newspaper. The defendant did not dis-affirm the contract until September 27, 1951, when the plaintiffs requested him to sign a note for the balance of the purchase price. It was then, when the parties met with their attorneys in the office of Mr. Leonard, attorney for the plaintiffs, that the defendant informed plaintiffs he was rescinding the contract because of said false representations and returning the business to the plaintiffs. Is this delay and conduct of the defendant sufficient to establish a waiver by implication of the defendant’s right to rescind the contract? Stated differently, should the defendant be permitted to experiment with the business more than a month after discovering the fraud, and still be entitled to rescission of the contract? 19 O. Jur., at page 458, reads:

“By the better reason, if not by the weight of authority, the performance of an executory contract after knowledge of facts making it voidable on the ground of fraud in its procurement is a waiver of any right of action for damages for the fraud.”

See also 11 O. Jur., 2nd, page 546, where it reads:

“Ordinarily, the right to rescind a contract must be exercised with great promptness. The right to rescind cannot be held suspended while the holder of the right experiments with other remedies or uses it as a weapon to induce better terms in the existing contract as an alternative to rescission. Accordingly, unreasonable delay in manifesting an election to rescind a contract may constitute a waiver of the right to rescind.”

A waiver is generally defined as an intentional relinquishment of a known right, or such conduct as warrants an inference of relinquishment of such right.

In our opinion, considering all the facts and circumstances above set forth, the defendant has waived his right to rescind the contract by his unreasonable delay in electing his remedy to rescind. A duty rested upon the defendant to act promptly upon discovery of the fraud. He cannot remain silent, continue to experiment with the business, and a month later assert his right to declare the contract void.

Since neither the plaintiffs nor defendant are entitled to the relief prayed for in the petition or cross-petition, the parties must be left in the same position as when this action was instituted. The sum of $5,145.97 in possession of the receiver, representing the proceeds of the sale of the business, rightly and equitably belongs to the defendant.

An entry may be submitted dismissing both the petition and the cross-petition, each to pay the costs incurred by him, and ordering the receiver to pay to defendant the money in his possession after paying the costs of receivership.

Judgment accordingly.

MILLER, PJ, HORNBECK, J, concur.


author: By McBRIDE, J.:

text:
    O’NEILL, Atty. Genl., Ex WEIR, Dir. of Div. of Employment Security, Plaintiff, v. MUTUAL TOOL AND DIE, INC., Defendant.
    Common Pleas Court, Montgomery County.
    No. 110394.
    Decided October 22, 1956.
    William M. Gemmill, Asst. Atty. Geni., for plaintiff.
    Nolan, Boesch & Wolff, Dayton, for defendant.
   OPINION

By McBRIDE, J.:

This action was filed by C. William O’Neill, as Attorney General of Ohio, ex relatione Gordon P. Weir, Director of the Division of Employment Security of the State of Missouri. The petition seeks to recover on a finding against the defendant for delinquent contributions assessed as taxes under the Employment Security law of Missouri. The petition in substance otherwise complies with the requirements of §§4141.01 to 4141.99, inclusive, R. C., relating to the collection of unemployment contributions in Ohio from Ohio employers.

A demurrer was filed by the defendant for the reason that the plaintiff does not have the capacity to sue on relation of another state and for the additional reason that the petition does not state a cause of action in that it fails to allege the law of the foreign state upon which the action is based. This raises two questions which must be considered separately.

On the first issue the attorney general relies upon §4141.41 R. C. for his capacity to institute an action in his name on the relation of the Division of Employment Security of the State of Missouri. This section reads as follows:

“* * * The courts of this state shall recognize and enforce liabilities for unemployment contributions imposed by other states which extend a like comity to this state.”
“The attorney general may commence action in this state as agent for or on behalf of any other state to enforce judgments and liabilities for unemployment insurance taxes or contributions due such other state if such other state extends a like comity to this state. * * *”

The right of an officer of the state to sue must be expressly authorized by statute. Gardner’s Bates Ohio Civil Practice, Section 7.18; 23 O. Jur. 944. In this connection the right of the attorney general to sue in any capacity must be determined by the provisions of the Unemployment Act. The last paragraph of §4141.41 R. C., cited by the plaintiff contains a reference to capacity “as agent” which appears to restrict the right of the attorney general to initiate actions in his own name even though the alternative language immediately following otherwise justifies an action ex relatione. This compels the court to review all of the provisions of this Act relative to the right and capacity of the attorney general to institute actions under the statutes as well as by virtue of reciprocal agreements.

Sec. 4141.27 R. C., provides that upon certification from the administrator that an employer has not complied with the law the attorney general

“* * * shall forthwith institute a civil action against such employer in the name of the state for the collection of such contribution and interest.”

The statute then provides for the contents of such petition. Such an action must be brought in the name of the State of Ohio.

Sec. 4141.41 R. C. provides:

“The attorney general may commence action in any jurisdiction by and in the name of the administrator to collect unemployment contributions, forfeitures, and interest legally due this state. The officials of other states which extend a like comity to this state may sue for the collection of such contributions in the courts of this state. A certificate by the secretary of state under the great seal of the state that such officers of the department as designated by the administrator have authority to collect the unemployment contributions shall be conclusive evidence of such authority.”
“The attorney general may commence action in this state as agent for or on behalf of any other state to enforce judgments and liabilities for unemployment insurance taxes or contributions due such other state if such other state extends a like comity to this state.”

Thus when the attorney general of Ohio seeks to collect delinquent taxes against a person outside the jurisdiction of Ohio, the action must be brought in the name of the administrator. The attorney general is not given authority to commence any action outside Ohio in his own name on behalf of the state or on behalf of the administrator in this section. The action must be in the name of the administrator.

This section proceeds to allow “officials of other states” to sue for collection of contributions in the courts of this state, if a reciprocal agreement has been reached or a like comity is extended to Ohio. The statute further provides for the recognition of the authority of “such officers of the department as designated by the administrator” of a foreign state to collect such compensation upon furnishing a certificate by the secretary of state.

After a paragraph which has no application to this problem the section proceeds to authorize the attorney general to “commence action in this state as agent for or on behalf of any other state, if such other state extends a like comity to Ohio.

It is apparent that a diversity of procedure exists in this chapter of the code. Actions within the state must be brought in the name of the State of Ohio. Actions originating here against non-residents may be commenced only “by and in the name of the administrator.” The certificate of authority from another state may include other officers “designated by the administrator” of such foreign state to collect such compensation in Ohio.

And finally where actions originate in other states the “officials of other states,” or officers designated by the administrators of such other states, may sue if comity exists.

All possible situations having been expressly provided for it at first appears that the final paragraph of §4141.41 R. C. permitting the attorney general to “commence action in this state as agent for or on behalf of any other state” is surplusage. It is apparent that nowhere in the Act itself does the attorney general otherwise acquire authority to commence an action other than in the name of the state or in the name of the administrator. What then is the purpose of this final paragraph which conditionally authorizes suits as agent for or in the alternative on behalf of another state?

In this connection the authority of the administrator under §4141.42 R. C., to enter into reciprocal agreements for the purpose of determining liability of an employer for payment of contributions takes on significant importance. Other states may provide that actions be filed by and in the name of the attorney general on behalf of such states or on behalf of their officers. Consequently, where such other state so provides for an ex rationale action by their attorney general, the administrator of Ohio is free to enter into a reciprocal agreement with that state which in the interests of comity authorizes the attorney general of Ohio to exercise the same authority as the attorney general of the other state. In other words, the authority of the attorney general of Ohio to commence an action on relation of a foreign administrator of unemployment funds is dependent upon the existence of an agreement establishing like comity of convenience with such other state. If such other state fails to expressly authorize suits ex relatione then the attorney general of Ohio may not do so and may only serve as agent or attorney in actions which must be commenced in the name of the officials of such other state.

Returning to the problem in the instant case it is incumbent upon the attorney general in an action brought in his own name on behalf of another state to allege facts supporting his authority under the comity provision to institute an action which otherwise is not in the name of the real party in interest. The vague reference in the present pleading to the law of Ohio relating to reciprocal agreements fails to allegé facts from which the court can determine that the plaintiff has the capacity to sue ex relatione under reciprocal agreement.

The second ground for demurrer relates to a similar problem. The necessity for pleading the law of a foreign state is one that is generally recognized and cannot be questioned. The requirement in §4141.41 R. C. that

“the courts of this state shall recognize and enforce liabilities for unemployment contributions imposed by other states which extend a like comity to this state”

appears to require the courts to recognize judicially the laws which create such liabilities. Here again by reciprocal agreement it is within the power of the administrator to extend to a sister state, which does likewise, the convenience of judicial notice of state laws. And here again to avoid pleading the statutes of Missouri it is necessary for the plaintiff to allege facts indicating that a reciprocal agreement exists and that such agreement includes a provision relative to judicial notice of laws and liabilities so as to bring the case within the conditions imposed by §§4141.41 and 4141.42 R. C.

Demurrer SUSTAINED.


text:
    MARTINI, Plaintiff-Appellee, v. CICATIELLO et, Defendants-Appellants.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3768.
    Decided April 14, 1955.
    William A. Gemma, James Modarelli, Youngstown, for plaintiffappellee.
    D. F. Rendinell, Frank Anzellotti, Youngstown, for defendants-appellants.
   OPINION

Per CURIAM.

Plaintiff sued his daughter Josephine and her husband Alexander Cicatiello, in the court of common pleas to have real estate situated on Bonair Avenue, Youngstown, Ohio, title to which resided in defendants, held in trust for him subject to a mortgage held by the Home Savings and Loan Company.

Plaintiff alleged in his petition that on April 15, 1950, he and defendants entered into an oral agreement by the terms of which he agreed to and did advance a total of $4680.00 to defendants to purchase a home from Alex and Mary Warg, situated on Bonair Avenue, Youngstown, Ohio, but that instead of purchasing such real property in his name defendants took title thereto in their names. Plaintiff closed the prayer of his petition by praying “for such other and further relief that may be necessary and proper in the premises, either equitable or legal.”

By answer defendants admitted the purchase of the Bonair Avenue real estate on July 1, 1950, but alleged that they purchased it with their own money; and denied each and every other fact stated, averment made and allegation set forth in plaintiff’s petition not by them specifically admitted to be true. By cross-petition the Home Savings and Loan Company set up their mortgage.

The trial judge, to whom the case was submitted, found “the issues joined in favor of plaintiff, Umberto Martini, against the defendants, Josephine Cicatiello and Alexander Cicatiello,” and ordered, adjudged and decreed that “plaintiff, Umberto Martini, recover of the defendants, Josephine M. Cicatiello and Alexander F. Cicatiello, the sum of $5720.00 with interest as of August 1, 1953, until paid, and that this amount is a specific lien on the premises” (Bonair Avenue property) “subject to the claim of the Home Savings and Loan Company of Youngstown, Ohio,” in the amount of $1984.48.

Defendants appealed from the decree of the trial court to this court on questions of law only, and assigned errors on which we will pass herein after recitation of some of the facts shown by the record.

Josephine Cicatiello was born in Youngstown in 1914, and shortly thereafter went to Italy with her father and mother, where her mother died in 1933, subsequent to which date she returned to live with her father and stepmother in Lowellville and Youngstown until she married defendant, Alexander Cicatiello in May, 1935, prior to the death of her stepmother in 1946. Subsequent thereto she and her husband lived with her father until 1953 on Bonair Avenue.

The evidence discloses that between February 27, 1947 and May 1, 1950, a savings account opened in the Dollar Savings and Trust Company in the joint names of plaintiff and defendant, Josephine, by a deposit of $1500.00, was increased by deposits to a total of $4469.10, and that the account was closed on May 1, 1950.

Defendants claim that the money was given them as a gift by plaintiff in appreciation for what they had done for him in maintaining a home for him and his second wife from 1933 to 1950, when he left defendants’ home by court order.

Referring to withdrawals from the savings account plaintiff testified as follows:—

“A. I took it out so that we could all live together in the house, in the new house. * * *
“Q. Did she explain to you what house?
“A. No. * * *
“The Court: Now, after you moved to the Bonair house, what arrangement, what did you do, you and your daughter, with respect to the household expense?
“A. We had no understanding or agreement.
“The Court: What did you do with respect to the expenses of the house?
“A. I’d give her the money and she would do with it as she saw fit. To Pay on the mortgage.”

The assigned ground that the trial judge erred prejudicially “in overruling defendant Alexander Cicatiello’s motion at the conclusion of plaintiff’s case” has no merit for the reason that defendants waived their right to rely on such assigned error when they accepted the ruling of the trial court, proceeded with their defense and introduced evidence in their own behalf. Halkias, Appellee, v. Wilkoff Co., Appellant, 141 Oh St 139.

Appellants further assign as error that “the decision, judgment and decree of the court was not sustained by sufficient evidence and is manifestly against the welfare (weight) thereof,” and also that “they were deprived of the right of trial by jury,” since the trial court ordered, adjudged and decreed that plaintiff recover from defendants the sum of $5720.00 with interest from August 1, 1953, until paid, the defendants contending that the chancellor had no jurisdiction to render, a money judgment against them without submitting the cause to a jury.

The trial judge was sitting as a chancellor upon the issues made by the pleadings, and it is apparent that in administering equity between the parties upon the evidence presented, the chancellor determined that justice and equity would more nearly be done by allowing the title to the real estate to remain in the defendants but allowing plaintiff to have a lien on the premises in the amount of money which the court found the plaintiff had advanced to them for the purchase of the property, subject to the mortgage of The Home Savings and Loan Company. In determining the amount of such recovery the chancellor allowed defendants a credit at the rate of $70.00 per month for board furnished by defendants to plaintiff, and it is urged that the only evidence in the record as to the amount which should have been allowed as a credit for board was the testimony of defendant, Josephine, to the effect that it was worth $120.00 a month.

Of course, the chancellor was not bound to accept the testimony of Josephine as conclusive, but could form his independent judgment from the circumstances of the parties, their relationship and all the evidence before him.

We have carefully examined the evidence contained in the record and conclude that the finding and decree of the chancellor is not against the manifest weight of the evidence or contrary to law; and that the chancellor had jurisdiction to find the amount of money which was made a specific lien on the real estate involved.

In 19 American Jurisprudence, Page 181, Sections 226 and 227, it is stated:—

“If the bill seeks equitable relief, an appropriate prayer should be incorporated therein. Prayers for relief are special or general, and the cautious pleader includes both in his bill. In the special prayer, the complainant indicates the particular relief which he deems suited to his case and asks the court to grant that relief; in the prayer for general relief, he merely asks that he may have ‘such other, further, and general relief as he may be entitled to.’ * * *
“But the special prayer in a bill does not necessarily determine the character of the bill. The prayer may be more extensive or less extensive than, or otherwise different from, that which the bill as a whole will justify. The character of the bill is therefore determined by the contents of the whole bill taken together and chiefly by the facts contained in the stating part. The substance and not the form of the bill determines its character.’- (Section 226.)
“Under the general prayer, the court may grant any relief fairly conformable with the case made in the bill. * * *.
“If the special prayer is narrower than the case made in the bill, the complainant can have broader relief under the general prayer, if the record discloses his right to such relief; and under the general prayer the court may make any order or grant any relief necessary or appropriate for the purpose of giving full effect to the orders made or relief granted under the special prayer. Even a mistake in the specific relief prayed for will not deprive a party of that relief to which the nature of his case entitles him, provided there is a general prayer in the bill. * * *” (Section 227.)

It is evident from the authority cited above that the prayer in plaintiff-appellee’s petition can have both a special and general prayer and therefore would be sufficient to maintain the action in the petition, and since the facts alleged in the petition constitute an equitable action if proved, and as such, if the allegations are made in good faith; it will be sufficient to entertain an equity jurisdiction, and once equity has jurisdiction it may keep jurisdiction for all purposes until final determination of the matter.

“As has been pointed out, the word ‘jurisdiction,’ as used to define the scope of the usual functions of a chancery court, has a special significance which carries no implication that the want of it imports lack of power to hear and determine the cause and apply an appropriate equitable remedy. It follows that ‘an objection to the jurisdiction of chancery’ (in this sense) ‘comes too late, after a defendant has answered and contested the merits.’ Such an objection must be taken by demurrer or by special averments in the answer, or it will be deemed to have been waived, and cannot be insisted upon by the party, though the court may notice it sua sponte,” 16 O. Jur., Section 29, Page 73.

Since the decree entered upon the journal of the court of common pleas may be construed as a personal judgment against the defendants We find it proper to modify that decree so as to limit it to a decree of a lien only against the property in favor of the plaintiff in the amount found by the chancellor, subject to the mortgage of The Home Savings and Loan Company. A journal entry may be prepared showing such modification.

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


author: Per CURIAM:

text:
    STATE, ex rel. HOVER, Plaintiff-Appellee, v. RUMPKE, Defendant-Appellee.
    Ohio Appeals, First District, Hamilton County.
    No. 7936.
    Decided November 9, 1955.
    C. Watson Hover, Pros. Atty., Carl B. Rubin, Asst. Pros. Atty,, for plaintiff-appellee.
    Freiberg & Simmonds, for defendant-appellant.
    (KOVACHY, PJ, SKEEL and HURD, JJ, of the Eighth District, sitting by designation in the First District.)
   OPINION

Per CURIAM:

This is an appeal on law and fact from a judgment of the Common Pleas Court. Plaintiff, State of Ohio ex rel. C. Watson Hover, as Prosecuting Attorney of Hamilton County, claims defendant, William Rumpke is conducting a common nuisance in the manner in which he is operating a garbage and waste disposal plant located on property owned by him in colerain Township, Hamilton County, Ohio, in violation of §3767.-01, et seq., R. C., and prays that such nuisance be abated.

Garbage, ashes, trash and other waste material is collected by the defendant from 120,000 householders and fourteen commercial houses located in two cities, one village and eleven townships chiefly in Hamilton County.

The case was presented to this Court by the transcript of the evidence given in Common Pleas Court; depositions filed in this court, together with supplemental depositions filed by the defendant on April 15, 1955; hearings on arguments of counsel on March 28 and September 21, 1955; and extensive briefs filed by counsel following each hearing. The court viewed the disposal plant prior to each hearing in order to better understand the evidence before it.

At the time of the first hearing, the most objectionable features of the operation were fires which emitted noxious and offensive smoke and odors that permeated the air. Since that time, however, the fires have been completely extinguished and the operation of the disposal plant so completely changed as to eliminate, considering the nature of the undertaking, any reasonable cause for complaint.

In view of the above, and the further fact that Hamilton County has failed to demonstrate to our satisfaction that it has the present facilities, or that it will have them available in the near future, adequately to assume a burden so necessary to the well-being and health of the many people concerned, we unanimously find that the operation of this disposal plant, under the facts and circumstances as now exist in the matter, does not constitute a public unisance, that the equities lie with the defendant, and that consequently this Court, as a court of chancery, cannot in equity and good conscience issue the injunctive relief prayed for by plaintiff-appellant. Decree for defendant. Exceptions. Order see journal.

KOVACHY, PJ, SKEEL, J, HURD, J, concur.