author: By HUNSICKER, J:

text:
    HOVANEC, Plaintiff-Appellant, v. ONDAK, Admr., et, Defendants-Appellees.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23333.
    Decided March 1, 1955.
    Feighan & Feighan, Cleveland, for plaintiff-appellant.
    I. Greenwald and M. S. Grossman, Cleveland, for defendant-appellee.
    (DOYLE, PJ, HUNSICKER, J, of Ninth District; MIDDLETON, J, of Third District sitting by designation.)
   OPINION

By HUNSICKER, J:

The plaintiff-appellant, Anna V. Hovanec, and the defendant-appellee, Elizabeth Ondak, are sisters. The mother of the parties herein died. Anna Hovanec arranged for the funeral services, and, in doing so, she incurred large burial expenses. Elizabeth Ondak, as administratrix w. w. a., of the estate of Elizabeth Emerich, the mother, refused to acknowledge the indebtedness which Anna Hovanec created. An action was then filed in the Municipal Court of Cleveland, Ohio, by Anna V. Hovanec, in which she sought to recover from the estate of her mother, the money she claimed to have expended for the funeral.

The administratrix, Elizabeth Ondak, by way of answer, admitted that her sister, .Anna V. Hovanec, arranged for the funeral of their mother, and that she expended certain sums in furtherance of such funeral, and the expense of the last illness, but denies that the sum of $1,240.07 was paid to the Sepsi Funeral Home for funeral and related expenses. The administratrix also denies that the sum paid to the Sepsi Funeral Home was reasonable and necessary for the burial of the mother,' and denies that such sum was paid with the expectation that Anna V. Hovanec would be reimbursed in full therefor.

Elizabeth Ondak, by way of further answer, said that if any or all of the funeral expenses v/as paid by her sister, it was paid from the proceeds of an insurance policy on the life of the mother in which Anna V. Hovanec was the beneficiary under an oral agreement that such proceeds were to be used for the purpose of burial of the decedent. The administratrix, Elizabeth Ondak, also alleges that there was a savings account, that this account was the property of the mother, but that by an oral agreement with Anna V. Hovanec, it was made a joint and survivorship account between Anna and her mother, with the express oral agreement that Anna would use this account for the benefit of the mother to pay her debts and to pay the expense of her mother’s funeral when death occurred.

A reply in the form of a general denial was filed by Anna V. Hovanec and, on the issues so made, a trial to a jury was had. A general verdict with judgment thereon was awarded to the administratrix, the defendant appellee. From this judgment an appeal on questions of law is before this court for review. The bill of exceptions herein is in narrative form and regularly approved by the trial court.

Anna V. Hovanec says that:

“1. The trial court erred in admitting evidence that the plaintiff received the proceeds of her joint and survivorship bank account with the decedent and a policy of insurance on the decedent’s life.

“2. The trial court erred in admitting a mass of evidence which was wholly immaterial to the issues presented, but was calculated to and did prejudice the jury against the plaintiff, arouse sympathy for the defendant, and divert the jury’s attention from the real issues.

“3. The trial court erred in discharging the jury without requiring it to answer the plaintiff’s interrogatory.

“4. The judgment of the court was against the manifest weight of the evidence.”

We shall consider the claimed errors in the order set out by the appellant herein.

As to assignment of error No. 1 we find that:

Elizabeth Ondak, the administratrix, alleged in her answer that the bank account and the proceeds of the life insurance policy were given to her sister, Anna, for the express purpose of paying the funeral expenses. This allegation was denied in the reply. It is therefore difficult to understand how it can be claimed that evidence on this point is prejudicial to the appellant. We think evidence introduced on this feature of the case was proper.

As to assignment of error No. 2, we find that there was admitted in evidence a great amount of wholly unneeésary matters not competent in a determination of the issues in this case. The fact that the decedent conveyed her house to Anna V. Hovanec was not competent and should not have been admitted. The bank ledger was not proper evidence, except as to that portion which showed the withdrawals therefrom immediately before and immediately after the death of Mrs. Emerich. The trial court erred in admitting evidence as to the removal of the plaintiff-appellant as executrix of her mother’s will and in admitting the entire file of the Probate Court as an exhibit herein. The trial court erred in permitting oral argument to the jury concerning these improper matters.

We do not find that it was error to admit evidence that the plaintiff-appellant, Anna V. Hovanec, filed a claim for the amount sought herein and other sums since the fact of the claim and rejection is alleged by plaintiff-appellant in her petition and admitted by the defendant-appellee. It was not error to show that in such a claim she asked for more than the amount sought in the instant action.

As to assignment of error No. 3, it is not necessary that a jury answer interrogatories which call for a purely evidentiary or probative fact. It is only required to answer questions of an ultimate and determinative character. McFadden v. Thomas, Admrx., et al, 154 Oh St 405; Bradley v. Mansfield Rapid Transit Inc., 154 Oh St 154.

The interrogatory in the instant case should not have been submitted to the jury, and it was not error to refuse the request that the jury be compelled to answer it.

As to assignment of error No. 4, we do not find by a unanimous vote of this court that the judgment is against the manifest weight of the evidence.

We do determine, however, that the errors in the admission of evidence, as pointed out above, were prejudicial to the substantial rights of the appellant, Anna V. Hovanec.

“* * * error in the admission of evidence is ground for reversal, if the evidence is of such importance that it must have affected the verdict; if it was calculated to prejudice the jury against the unsuccessful party, to arouse sympathy for the successful party, or to divert attention from the real issue; or if there is any reason to apprehend that it may have influenced the jury in any way, unless it appears affirmatively that the defeated party was not prejudiced thereby.’’

4 O. Jur. 2d., Appellate Review, Sec. 871, at p. 86 and authorities there cited.

It is difficult, in a narrative bill of exceptions, to apprehend the actual setting in which the improper evidence was admitted but where it is clearly shown that the evidence so submitted to the jury may reasonably have influenced the jury, a reviewing court should reverse the judgment and remand the case for a new trial.

“Courts will not reverse a judgment merely because improper or irrelevant testimony has been received, if there is no reason to apprehend that the improper or irrelevant testimony could have had any influence upon the jury. Badington v. Shearer, 22 Pick, 427; Ellis v Short, 21 Pick, 142. But if there is any reason to apprehend that it may have had such influence, courts should do so * *

Wilson & Co. v. Barkalow, et al, 11 Oh St 470 at p. 475.

It is the judgment of this court that the admission of the improper evidence set out above, did affect the substantial rights of the appellant, and that the error thus established prevented Anna V. Hovanec from having a fair trial.

The judgment is reversed and the cause remanded to the Municipal Court of Cleveland for further proceedings. Exceptions noted. Order see journal.

DOYLE, PJ, MIDDLETON, J, concur.


source: Caselaw Access Project

author: By THE COURT.

license: Public Domain

text:
    HUGHES, Plaintiff-Appellee, v. EVERETT, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 5214.
    Decided February 15, 1955.
    Hamilton & Kramer, Donald M. Hamilton, Jr., and Malcolm H. Lindsey, of Counsel, Columbus, for plaintiff-appellee.
    Joseph J. Bruzzese, Steubenville, for defendant-appellant.
    HISTORY: — Motion to dismiss appeal on the grounds that there is no final order. Motion sustained. For further history see Omnibus Index in bound volume.
   OPINION

By THE COURT.

Submitted on motion of the plaintiff-appellee seeking an order dismissing the appeal for the reason that the order appealed from is not a final one. The record reveals that the petition stated a cause of action on an account to which a demurrer was filed based on the ground that the action was barred by the statute of limitations. The demurrer was overruled with leave to answer or plead further within a certain date. This is not á final order from which an appeal may be taken. See Collins v. Yellow Cab Co., 157 Oh St 311; Fornoff v. Ehlert, 53 Abs 96; 2 O. Jur. 2d, Sec 47, page 618. The appellant relies upon the case of the Czech Catholic Union v. East End Bldg. & Loan Assn., 140 Oh St 465, wherein the court held that the overruling of a demurrer constituted a final order affecting a substantial right because in effect it determined that the Superintendent of Building & Loan Associations was precluded from enforcing the superadded liability against stockholders. The Court stated that the order amounted to on absolute declaration that the Superintendent lacked the authority to maintain an action for the super added liability as a part of the liquidating process, thereby denying him finally the exercise of that function. The cited case can be distinguished on the facts from the case at bar in that the appellant herein has been deprived of no rights except those pending in this action.

The motion will be sustained.

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


author: By BLYTHIN, J.

text:
    STATE, ex KAY, Relator, v. CARNEY, County Auditor, et, Respondents.
    Common Pleas Court, Cuyahoga County.
    No. 659260.
    Decided May 24, 1954.
    Richard B. Kay, Cleveland, in propria persona.
    Prank T. Cullitan, Pros. Atty., A. M. Braun, Asst. Pros. Atty., Cleveland, for respondents.
   OPINION

By BLYTHIN, J.

Relator brings his action as a taxpayer, and on behalf of all taxpayers within the county, against the county auditor and the three members of the Board of County Commissioners seeking, in effect, to have the county auditor restrained from employing three expert appraisers to serve in connection with the reappraisal of property within the county for tax purposes unless and until the said Board of County Commissioners has approved the amount of compensation to be paid each, and seeking to have said board compelled to act in the premises. Relator recites that the defendant auditor communicated to the board his intention to employ three individuals as such appraisers and to pay them from county funds the sum of $25,000.00 each for their services. The board took no action whatever looking to any approval or disapproval oí the auditor’s intention because the board had already approved a budget for the total estimated expense of the auditor’s reappraisal program and did not deem .it necessary for it to pass on any individual item to be expended by the auditor in connection with such program.

Respondents, by their answers, assert that the communication to the board was for information only and that in the 1954 budget of the county the sum of $168,000 was included and approved for the general assessor’s function of the auditor’s office and $1,295,552 was included and approved for the reappraisal program; a total of $1,463,552 within a total appropriation of $1,494,202 for all the purposes of the office for the year. They further aver that the auditor respondent filed his application with the Board of Tax Appeals, as required by law, for authority to employ 163 experts, deputies, clerks and other employees for assessment purposes at an estimated cost of $1,396,010, such employment to include the three experts herein specifically referred to. The application was granted and the employments authorized by said Board of Tax Appeals. Counsel for the parties have submitted the matter to the court on the pleadings and the oral presentation — agreeing that the only question to be answered is this: Must the Board of County Commissioners specifically fix the compensation of each of the three experts mentioned?

Sec. 325.17 R. C., in its pertinent part, is as follows:

“The officers mentioned in §325.27 R. C., may appoint and employ the necessary deputies, assistants, clerks, bookkeepers, or other employees for their respective offices, fix the compensation of such employees and discharge them * * *. Such compensation shall not exceed in the aggregate, for each office, the amount fixed by the board of county commissioners for such office. * * *”

The county auditor is one of the officers referred to in §325.27 R. C.

Relator contends that §5713.01 R. C. (§5548 GC), is controlling in this case. Chapter 5713 deals with “Assessing Real Estate” and §5713.01 R. C., in its pertinent part, is as follows:

“Each county shall be the unit for assessing real estate for taxation purposes. The county auditor shall be the assessor of all the real estate in his county for purposes of taxation, * * •*.

“The auditor, with the approval of the board of tax appeals, may appoint and employ such experts, deputies, clerks or other employees as he may deem necessary to the performance of his duties as assessor; the amount to be expended in the payment of the compensation of such employees shall be fixed by the board of county commissioners. If in the opinion of the auditor, the board of county commissioners fails to provide a sufficient amount for the compensation of such employees, he may apply to the board of tax appeals for an additional allowance, and the additional amount of compensation allowed by such board shall be certified to the board of county commissioners, and the same shall be final. * * *”

The parties agree that a correct interpretation of the last quoted section of the Revised Code will and must determine the issue raised.

It is a thoroughly settled principle of construction that one may not read meaning into a law but, on the contrary, must bring meaning out of it. It is clear from what has been here quoted that in the general performance of the duties of his office the auditor selects the employees of his office and fixes the compensation to be paid them. The total determined and to be paid by him must not exceed the total amount fixed for that purpose by the county commissioners (See §325.17 R. C. above). Does the special provision for “Assessing Real Estate” change this formula? Under §5713.01 R. C., the “auditor” is the “assessor.” He, with the approval of the board of tax appeals, appoints and employs such experts and others as “he” may deem necessary. The persons so employed are clearly his employees, and just as much so as any employee he has for any service of his office. “The amount to be expended in the payment of the compensation of such employees shall be fixed by the board of county commissioners.” It is to be noted that the “amount” has reference to “such employees” not each employee. Again, if the auditor deems the “amount for the compensation of such employees” insufficient, he may appeal to the Board of Tax Appeals (Emphasis added.)

The court is unable to reach out of the quoted sections of the code a single suggestion that the individual compensations are to be the concern or responsibility of any person or body other than the county auditor. The auditor’s rights and responsibilities in the selection of individual employees and in fixing their compensation are precisely the same under §5173.01 R. C. as they are under §325.17 R. C.

The instant action is aimed chiefly at the proposed employment of three expert appraisers and payment to them of $25,000 each. The relator is gravely concerned over the very thought that a county auditor be placed in the position of one having authority to pay individuals $25,000.00 each for a service of the kind and extent involved. The court has no means of measuring the service involved nor is it its function to do so. The court is concerned only with the construction of the statutes and is without responsibility for their folly, if such there be. The statutes involved do not differentiate between “experts” and “other employees” but, on the contrary, specifically place them in one class insofar as their employment and compensation are concerned. The county auditor is an elected official and has rather involved and complicated duties to perform. He must, in the very nature of things, be vested with considerable authority and discretion. If either of the latter are abused, and even though such abuse be technically within the law, the electors have their remedy at the polls.

On the basis of what has been said it follows that relator’s prayer for relief will be denied and his petition dismissed at his costs. An order to that effect will be entered on the journal this date.


author: PER CURIAM:

text:
    SKIBA, Admrx., Plaintiff-Appellee, v. NEW YORK, CHICAGO AND ST. LOUIS RAILROAD COMPANY, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23220.
    Decided March 30, 1955.
    G. J. McMonagle & J. A. Verhunce, Cleveland, for plaintiff-appellee.
    Donald W. Hornbeck, Edwin Knaehel, Donald E. Ryan, Cleveland, for defendant-appellant.
   OPINION

PER CURIAM:

This appeal is here on questions of law. Defendant-appellant makes seven assignments of error in the trial of the cause in the Common Pleas Court of Cuyahoga County. We have considered all of them and in f.his per curiam opinion adhere to only those that we believe have some justification and the facts presented herein are limited to those required to discuss the assignments of error so found.

Plaintiff-appellee’s decedent was instantly killed on the afternoon of January 5, 1953, by a westbound freight train while driving a truck across defendant-appellant’s railway tracks at Pelton Road in the City of Willoughby, Ohio. The .verdict of the jury was for $110,000.

The evidence discloses that there was a single track crossing a busy road in this City and that a “cross-buck” sign was the only warning to those crossing the tracks. On the day of the accident, the weather was windy with occasional snow flurries which were blown into swirls and clouds by the high winds and obscured the view of the “cross-buck” sign and interfered in the observance of approaching trains. A bank extended on the east side of Pelton Road along the right of way of the railway to about twenty feet north of the track; on top of this bank and extending to about twelve or fifteen feet from the tracks, there was brush and weeds between five and six feet high. These, together with. other obstructions, made it impossible to see trains approaching from the east for one in a vehicle until the front of such vehicle was almost on the tracks. The westbound freight train involved in this accident was traveling downhill at a speed in excess of fifty miles per hour, which speed was in violation of railroad rules and manifestly unreasonable in view of the condition of the weather and other factors present at this intersection. The locomotive whistle was not sounded nor was the bell rung until the locomotive was about to cross Pelton Road and the train was headed into a high southwesterly wind which made it difficult to hear the sound of an approaching train from the east. The truck driven by the decedent had almost completed crossing the tracks when struck. The evidence disclosed negligence on the part of the defendant railway.

Assignment of error No. 3 claims that the verdict of the jury was excessive, it appearing to have been rendered under the influence of passion and prejudice. We conclude, upon reading the bill of exceptions, that the verdict was excessive but not rendered under the influence of passion and prejudice and order a remittitur of $32,000.

In division (A) of assignment of error No. 7, defendant-appellant claims the Court failed to separately and definitely state the issues of fact to be decided by the jury. It seems to us with respect to specification No. 2 which reads as follows:

“In failing, in the operation of said train as it approached the intersection of the right-of-way of the defendant Nickel Plate Road and Pelton Road in the City of Willoughby, Ohio, to sound the whistle on said engine and in failing to ring the bell carried on said steam operated locomotive, all as required by law.”

and specification No. 3 which reads:

“In operating said train into and across the intersection of Pelton Road and the tracks of the defendant Nickel Plate Road at a speed greater than was reasonable and proper under the facts and circumstances then obtaining.”

the court should have elaborated and explained the requirements of law to the Jury as regards the sounding of a whistle and a ringing of the bell as well as giving an explanation of the expression “speed greater than was reasonable and proper under the facts and circumstances then obtaining.” However, the excess of speed and failure to sound the whistle and ring the bell before coming to Pelton Road were so evident from the testimony presented in the record that we are unable to see that such error on the part of the court with respect to this portion of this charge was prejudicial to the defendant-appellant. Moreover, it is clear in the record that the trial court on two separate occasions asked counsel whether “there was anything by way of addition or subtraction on the part of defendant as to the charge.” Counsel for the defendant-appellant on each occasion made no request of the court either to elaborate on or to explain further as to any of these matters and thereby indicated no further explanation by the court in its charge to the jury was in order or required.

After a careful reading of the entire record in this case and a full study of the able briefs submitted by counsel, we hold unanimously that, with the lone exception of the verdict being excessive, substantial justice has been done the party complaining. The plaintiff-appellee having accepted the remittitur of $32,000, the judgment of the Common Pleas Court is accordingly modified to read $78,000 and as modified is affirmed.

Exceptions. Order See Journal.

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


text:
    WYSE, d. b. a. WYSE ADVERTISING COMPANY, Plaintiff-Appellee, v. REFRIGERATION SALES CORPORATION, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23313.
    Decided March 1, 1955.
    Herbert S. Bialosky, Cleveland, for plaintiff-appellee.
    Merkel, Campbell, Dill & Clarke, Cleveland, for defendant-appellant.
    (DOYLE, PJ, HUNSICKER, J, of Ninth District; MIDDLETON, J, of the Third District sitting by designation.)
   OPINION

By HUNSICKER, J:

In this appeal on questions of law from the Mnicipal Court of the City of Cleveland, Ohio, the defendant appellant, Refrigeration Sales Corporation, appeals from a verdict of the jury and the judgment awarded thereon.

The plaintiff appellee, Marc Wyse, the sole proprietor of Wyse Advertising, says that he entered into an oral contract with Refrigeration Sales Corporation to promote and advertise in certain media of publicity, a so-called “Norge Thrift Plan”, which was being sponsored by the appellant, a distributor of Norge Household Appliances.

The appellant, Refrigeration Sales Corporation, by way of answer, admitted that Marc Wyse,

“arranged and contracted for advertising time” to promote certain Norge products, but that he did so in behalf of two “dealers” in Norge products. The appellant further,

“emphatically denies that it entered into any contract * * *” with Marc Wyse “* * * or was obligated or responsible to” Marc Wyse, “* * * in any respect or particular whatsoever.”

The appellant further alleges that the admitted “radio and television programs were undertaken by two ‘dealers’ pursuant to the Norge dealer cooperative advertising plan” and that neither Refrigeration Sales Corporation, nor Norge,

“entered into any contractual agreements, either actual or implied, with plaintiff that pertained to the subject matter of this law suit.”

The reply of Marc Wyse denied that the radio and television programs “were undertaken by two ‘dealers’ pursuant to the ‘Norge Dealer Cooperative’ advertising plan * *

Refrigeration Sales Corporation says that the judgment “* * * is erroneous and against the just rights of appellant in each of the following respects:”

“1. The court erred in overruling defendant’s motion for a directed verdict at the close of all the evidence.

“2. The verdict of the jury is not sustained by sufficient evidence and is contrary to law.

“3. The judgment is against the manifest weight of the evidence.

“4. The court erred in his general instructions to the jury.

“5. Other errors appearing on the face of- the record.”

The testimony at the trial developed at great length around the type of advertising procedure known as a dealer cooperative plan. The appellant insisted that at all times Marc Wyse knew that whatever advertising service he was to render was for the dealer and not for Refrigeration Sales Corporation. Marc Wyse was equally as insistent that his oral arrangement was with the appellant, that he looked to the appellant for his payment since he had done work for them as an advertising agency on many previous occasions. He further testified that his orders for the advertising herein came from the manager of the appellant, and that all bills were first sent to-Refrigeration Sales Corporation, and then, at their request, the account was billed separately to the “dealers”.

Notwithstanding all of the testimony concerning the advertising business, the issue was very simple and the question is: Did Marc Wyse enter into a contract with Refrigeration Sales Corporation for the advertising service that was admittedly rendered? _ On this point there is a great conflict in the evidence. Marc Wyse said he did; Refrigeration Sales Corporation says that he did not. The jury found for Marc Wyse.

The contract was oral, the request to render service was in express terms; but it was for service in an undetermined quantity and consequently was for an indefinite sum. There was then an assent by Wyse when he proceeded to perform the‘service requested. Such a contract' is much like one where a merchant receives a request from a former customer to send to such customer’s house a named article of merchandise. When the article is delivered there arises an implied promise to pay for it. See Columbus, Hocking Valley and Toledo Railway Co. v. Gaffney, 65 Oh St 104.

Refrigeration Sales Corporation in their answer to the petition, admit that Marc Wyse did the quantity of advertising work alleged in such petition, and they did not say that the amount sued for was improper or excessive. There was only a small amount of testimony relative to the reasonableness of the charge as made by Wyse, but it was competent and hence was properly submitted to the jury.

“It may stand generally that an express contract for services rendered, without definite arrangements as to the compensation therefor, does not preclude the bringing of an action on a quantum meruit. If the contract does not stipulate as to the amount of compensation, the law implies that the promisor is to pay the reasonable value thereof.

42 O. Jur., Work, Labor, etc. Sec. 28 at p. 511 and authorities there cited.

See, also, 58 Am. Jur. Work & Labor, Sec. 39, at page 542.

We consequently determine that it was proper for the trial court to overrule the defendant appellant’s motion for a directed verdict and submit the issue to the jury.

Refrigeration Sales Corporation says that the trial court erred in his charge to the jury. Our examination of this charge shows that the appellant was granted its request to charge before oral argument. At the conclusion of the charge, the trial judge asked counsel if there was “* * * any discussion on the part of either one of you?” and the answer indicated that no further request for additional instructions or amplification of those given were desired; whereupon the trial judge said, “All right, you can both have your exceptions to the charge.”

With respect to errors of omission and commission in a charge to the jury, the Supreme Court of Ohio, in the case of Rhoades v. City of Cleveland, 157 Oh St 107, said:

“Where claimed errors in the charge of the court are errors of omission and not errors of commission, unless counsel has requested the court to supply the omissions, such errors of omission will not ordinarily justify a reversal.”

Although the charge is not as the members of this court would present it to a jury, yet it covered the issues to be presented, and since there was no request to amplfy the instructions or give additional instructions, and we find no errors of commission, we are required to say that the charge as given did not constitute prejudicial error.

We have examined ,all of the claimed errors, and finding none prejudicial to the substantial rights of the appellant, the judgment is affirmed.

Exceptions noted. Order see journal.

DOYLE, PJ, MIDDLETON, J, concur.


author: PER CURIAM.

text:
    LAWSON, Plaintiff-Appellant, v. CAMPBELL (CITY), A MUNICIPAL CORPORATION, Defendant-Appellee.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3626.
    Decided October 29, 1953.
    W. M. Howard and C. H. Nelson, Youngstown, Ohio, for plaintiff-appellant.
    Paul R. Van Such, Youngstown, for defendant-appellee.
   OPINION

PER CURIAM.

Under the facts clearly disclosed by the record in this case a policeman of the city of Campbell was engaged in a police duty in removing from the streets of that city a woman lying therein about three o'clock A. M., in a distressed condition and transporting her to the hospital in the city of Youngstown.

The second paragraph of §3714-1 GC, provides that a police officer while engaged in police duties is performing a governmental function, and constitutes a defense to this action. The relationship is not changed by the fact that the police officer was causing the distressed woman found in the streets of the city of Campbell to be conveyed to a hospital in the city of Youngstown, there being no hospital in Campbell.

There was no error in the common pleas court finding that the city was not liable in the performance of the governmental function above referred to, and that judgment must be and is hereby affirmed.

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


text:
    NEWMARK, Plaintiff-Appellee, v. KATZ ROTHSTEIN FURNITURE CO., Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23092.
    Decided June 23, 1954.
    Josephine Feniger, Cleveland, for plaintiff-appellee.
    Max B. Katz, Cleveland, for defendant-appellant.
   OPINION

PER CURIAM:

The Plaintiff’s petition states a cause of action seeking damages for an alleged breach in the performance of an executed sale of a suite of bedroom furniture. It is claimed that the suite was purchased for a total purchase price of $786.00, which price included one hanging mirror. It is further alleged that the mirror delivered was not the one which was sold to the plaintiff as a part of the said suite of furniture.

Plaintiff does not allege that by virtue of such breach of performance he tendered or offered to return to the seller defendant the furniture thus purchased, but it is clear from the record that the furniture is still in plaintiff’s possession.

There is some claim that the mirror was tendered back but was coupled with the demand for delivery of another mirror, which demand was refused by defendant on the ground that it was not a part of the original sale.

If it be established, therefore, that the mirror delivered was not the one purchased as a part of the bedroom suite, and that all of the pieces of furniture composing the bedroom suite were the subject of a single sale, and where the property sold is retained by the purchaser and the purchase price paid in full, then the measure of damages for failure to deliver the mirror would be the difference between the purchase price of all the furniture and the value that it would have without the mirror.

If the mirror delivered was not, in fact, the one purchased and the plaintiff refused to receive it as a part of the bedroom suite which he purchased, then the property in such mirror, that is the ownership thereof, would still be in the defendant.

The judgment is therefore reversed for error of law in applying an improper measure of damages, and the cause is remanded for further proceedings. Exceptions. Order see journal.

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


author: By HORNBECK, J.

text:
    KING, Plaintiff-Appellant, v. LOREN, THE UNIVERSITY REALTY COMPANY AND SCOTT, Defendants-Appellees.
    Ohio Appeals, Second District, Franklin County.
    No. 5107.
    Decided February 11, 1955.
    Donald C. Calhoun, Jr., Columbus, for plaintiff-appellant.
    Lowman, Patterson & Dunn, Columbus, for defendants-appellees, Loren and University Realty Co.
    Howard C. Park, Columbus, for defendant-appellee, Walter H. Scott.
   OPINION

By HORNBECK, J.

This is an appeal from a judgment against the plaintiff, King, and for the defendants and dismissing the petition at plaintiff’s cost. Four errors are assigned, but there is but one question presented.

The facts are well set forth in the brief of the appellant and we adopt them, in the main. Appellant was a tenant in the renting housing accomodation, located at 1371 North High Street, Columbus, Ohio, and was overcharged $15.00 per month. The. overcharge is established by an order of the area rent director. The rents were collected and the premises managed by defendant, Loren. The record legal title to the described premises for the last seven months of the period of overcharge was in appellee, Scott, and it is said, it is in “evidence as stipulated Exhibit No. 3”. It is also stated in appellant’s brief “The instrument, in evidence and marked stipulation Exhibit No. 5, is the agreement establishing the relationship between the said James Loren and the defendantappellee Walter H. Scott, which, according to Walter H. Scott, is conclusive as to this relationship and binding as between himself and the plaintiff-appellant”.

Appellant’s brief concludes “The sole issue is whether this defendantappellee was the ‘owner’ of these premises under the rent control act and hence liable for the overcharge”. Appellee, in his answer brief concedes the correctness of the facts, as stated in the brief of appellant, but insists that the issue is whether defendant-appellee is liable for the overcharge in accordance with the Housing and Rent Act.

At the outset, we observe that it is indeed doubtful if there is such a record as would require us to pass on this appeal. There was a stipulation of facts in the trial court. The so-called Exhibits 1, 3 and 5 are not so designated. There is no authentication of the stipulation of facts or the Exhibits either by the trial judge or by the court reporter under the statute.

Judge Bartlett, in a very short written opinion, said that:

“There is no showing the defendant Scott ever did demand, accept, receive or retain any payment of rent as prescribed by the Federal Code in question, and, consequently, there is no showing of liability on that part of the defendant Scott.”

We believe that this conclusion is sound.

It appears that during the period of the last seven months overcharge in question, the record title of the premises involved was in the defendant-appellee Scott. However, although the deed was absolute in form and so recorded, there was a separate agreement which by construction reduced the title of Scott to that of a mortgagee. By this instrument, of date of July 5, 1951, which was contemporaneous with the passing of title to Scott under the deed heretofore mentioned, there was set forth the terms and conditions under which the deed was made to Scott and in the concluding paragraph, it is said:

“If I (the grantor, Loren) fail to comply with all of the terms and conditions above set forth, within the term named, you are to own and retain the title to the property free and clear from all and any claims on my part.”

The paragraph immediately preceding reads:

“It is understood that the deed is delivered to you as security for the loan and that I am to continue to manage the property, collect the rents, pay taxes and the monthly payment to the Buckeye Building and Loan on the first mortgage, make all repairs in the same manner that I would if ..the title remained in my name.”

Suffice to say, that the deed as interpreted and agreed by the parties thereto was but a mortgage. There was nothing in the supplemental agreement from which it may be concluded that Scott had any control over the real property, that he collected directly or indirectly any of the rent or that he was related in such a way to the payment of the rents as that it might be said that he participated in the benflts thereof.

In the light of these facts, what were the respective rights of the parties under the controlling law and regulations as they appear in the brief of appellee. The definition of landlord in the Housing Rent Regulation is:

“Landlord includes any owner, lessor, sublessor, assignee, or other persons receiving or entitled to receive rent for the use or occupancy of any housing accomodation, or an agent of any of the foregoing.”

It is the theory of the Act and the Housing Regulation that the landlord is the individual to whom rents should be paid. As we interpret the quoted language of the Regulation, an owner, lessor, etc., is not a landlord unless he is entitled' to receive rent for. the use or occupancy of housing accomodations or so receives rent as agent of owner, lessor, etc. The owner, under the facts here, was not the landlord of the tenant, the plaintiff.

It is significant that the Regulation conforms to the penalty provision of the Housing and Rent Act, which, as we have indicated, is designated in the brief as paragraph (a) of Section 2523 of that Act. It reads:

“(a) Any person who demands, accepts, receives or retains any payment of rent in excess of the maximum rent prescribed under the provisions of this act, or any regulation, order, or requirement thereunder, shall be liable to the person from whom such payment is demanded, accepted, received or retained (* * *) for reasonable attorney’s fees and costs as determined by the court plus liquidated damages in the amounts of”, etc.

The penalty may be assessed only against the person who comes within the quotation just stated.

It seems clear that the true relation between Scott, the owner of the premises, and Loren, on behalf of the University Realty, was not that of principal and agent. Nor is there any proof from which it may be determined that the agreement referred to as Exhibit 5, in connection with the deed, was a subterfuge to permit Scott to avoid any liability by reason of overcharges under the Federal House and Rent Act.

Appellant presents a strong brief and cites a number of cases which we have examined. Without specific comment, suffice to say, that in these cases it appeared either that the parties who were held amenable to the Housing and Rent Act, were landlords, in fact, entitled to receive the rents, or the ones receiving the rents were their agents. In instances, the Courts cut through the apparent situation to get at the true facts and found that subterfuge had been resorted to to avoid the impact of the provisions of the Housing Act. The appellee here was not in the status of any of the parties held by the Courts to be liable for overcharges, and/or penalties, by reason of violation of the Housing and Rental Act.

No assignment of error is well made and the judgment must be affirmed. It is so ordered.

MILLER, PJ, and WISEMAN, J, concur.


author: By MILLER, J.:

text:
    TAYLOR, SR., Plaintiff-Appellee, v. STANDARD OIL COMPANY OF OHIO, Defendant-Appellant, FRY, Defendant-Appellee.
    Ohio Appeals, Second District, Montgomery County.
    No. 2283.
    Decided December 3, 1954.
    Mason Douglass, Dayton, and Edward Machle, Dayton, for plaintiffappellee.
    McAfee, Grossman, Taplin, Hanning, Newcomer & Hazlett, Cleveland, By Mr. Douglas Wick, Of Counsel, Landis, Ferguson, Bieser & Greer, Dayton, By Rowan A. Greer, Jr., Of Counsel, for defendant-appellant.
   OPINION

By MILLER, J.:

This is a law appeal from the judgment of the Common Pleas Court rendered upon the verdict of a jury in favor of the plaintiff and against the defendant-appellant, The Standard Oil Company. A verdict was also returned against the defendant, Warren C. Fry, but upon motion for a judgment non obstante veredicto the same was sustained and a judgment was rendered in favor of this defendant.

The record reveals that the action was one for damages for personal injuries suffered by the plaintiff-appellee as the result of the explosion of a compressed air storage tank located in a certain filling station owned by the appellant. The petition alleges that The Standard Oil Company owned and maintained the air compressing machine and that the same was leased to the defendant, Fry, along with the building and other equipment and used and operated by said Fry in selling Standard Oil Company products. The lease contained the following pertinent clause:

“The lessee hereby covenants and agrees as follows:

2.That lessee will keep said premises, building and equipment (except such items of equipment as the lessor may elect to keep in repair), together with the adjoining sidewalks and entrance driveways in good order and repair.”

The defendants were charged with negligence in the following particulars:

1. (Not material to the evidence presented.)

2. In maintaining and operating the air compressor and compressed air storage tank with a safety cut-off switch which was broken, worn out, and not operating at the time of the explosion.

3. (Not material to the evidence presented.)

5. (Not material to the evidence presented.)

All acts of negligence were denied by each of the defendants. In response to certain interrogatories propounded by the defendants the jury gave the following answers:

1. “Q. Was the defendant, The Standard Oil Company, negligent?

“A. Yes.

2. “Q. In what respect or respects was The Standard Oil Company negligent?

“A. In the opinion of the concurring jurors it was determined that The Standard Oil Company did by their actions, elect to maintain the air compressor in the filling station leased by Warren C. Fry. The condition of the brushes indicates lack of proper maintenance.

3. "Q. Was there any defect or dangerous condition before the accident?

“A. Yes.

4. “Q. What defect or dangerous condition was there before the accident?

“A. Evidence of pitting of contacts and fusion of the sheafs of one brush. Evidence of the cover to which contact points were secured, was not securely bolted in place.

5. “Q. Did defendant, The Standard Oil Company, have knowledge before the explosion of the defect or dangerous condition?

“A. Yes.”

This appellant urges that the answers to the interrogatories are irreconcilable with the general verdict in favor of the plaintiff when considered in the light of the charge given to the jury. We are referred to the following special charges given before argument and without objection from the counsel for the plaintiff:

“3. I charge you that the fact that The Standard Oil Company made repairs to the air compressor when requested to do so by Warren Fry imposed no duty upon that company to inspect or otherwise maintain the air compressor. Therefore, if you find that the plaintiff has failed to prove by a preponderance of the evidence that the explosion and resulting injuries were directly caused by negligence of the defendant, Standard Oil Company, through its employees in making those repairs, your verdict must be for that defendant, Standard Oil Company ”

“5. I charge you, Members of the Jury, that even though Standard Oil Company was the owner of the filling station operated by Warren Fry and the air compressor in it, nevertheless that company cannot be held responsible for any damages resulting from the explosion of the air compressor tank unless you find that the plaintiff, Mr. Taylor, has proven by a preponderance of the evidence that the explosion was the direct and proximate result of negligence on the part of Standard Oil Company in accordance with the allegations of the amended petition.”

“6. If you find that The Standard Oil Company had leased the filling station and air compressor to Warren Fry with the provision that Fry should maintain the premises and equipment in good condition, then I say to you that that company had no duty to inspect and maintain the air compressor unit in good condition, even though it may have made some repairs on it at the request of Mr. Fry. Therefore, unless you find by a preponderance of the evidence that the explosion and resulting injuries to the plaintiff were directly caused by negligence of that company in the repair work done by its employees, your verdict must be for the defendant, Standard Oil Company.”

Also, in the general charge the court stated that The Standard Oil Company owed the plaintiff no duty to keep the premises in safe condition, and that The Standard Oil Company would be liable only for a failure to exercise reasonable and ordinary care in making repairs ■ to • the compressor. In considering the appellant’s motions for (1) judgment on the special findings of the jury, (2) judgment notwithstanding the verdict, and (3) new trial, the court admitted that it did not properly state the law in its charge to the jury. The court stated:

“During the course of the trial we proceeded upon the theory that the Standard Oil Company was not in possession and control of the leased real property, and that it would be liable only to third persons for negligence in making repairs. With this theory so strongly in our minds, and the law applicable thereto, we apparently overlooked a conceivable and probable factual situation where a landlord out of possession of real property could at the same time be in control of personal property on the leased premises for certain purposes.”

“The lease between the defendant, Standard Oil Company of Ohio, and the defendant, Warren C. Fry, provided among other things, that the lessee Fry was to keep the premises, buildings and equipment in good order and repair, except such items of equipment as the lessor may elect to keep in repair.

The undisputed testimony supports the fact that the Standard Oil Company of Ohio did elect to keep the air compressor unit in repair and, therefore, it retained control over the unit for this purpose. The Court should have so instructed the jury.” Citing Schickling v. Post Publishing Company, 115 Oh St 589.

It should be noted that the jury also found that the Standard Oil Company “elected to maintain the air compressor” and grounded its verdict upon the appellant’s failure to perform this duty. This finding is not inconsistent with the terms of the lease giving the appellant the right of election “to keep in repair”, the terms “maintain” and “keep in repair” being synonymous. In Beal v. Erie Rd. Co., 51 Oh Ap 397, at page 401, the court says:

“The word ‘maintain’ in this connection seems to us to mean to keep in repair, to keep in substantially the same condition in which it was constructed under the authority and approval of the Highway Commissioner.”

See, also, 54 C. J. S., 899, and cases cited.

The appellant urges that in order for the jury to return a verdict in favor of the plaintiff it was necessary for it to base an inference upon an inference, which may not be done, citing Sobolovitz v. The Lubric Oil Co., 107 Oh St 204, and Halkias v. Wilkoff Co., 141 Oh St 139. This argument could well be sustained were it necessary for the jury to find the appellant was negligent in making repairs to the compressor tank, but this is not what the jury found. It found the appellant had elected to keep the same in repair and was negligent in so doing in that it permitted the same to get in a dangerous condition. This fact was inferred from the condition of the electric switch which automatically started and stopped the motor on the compressor. The evidence as to its defective condition was quite substantial and since the appellant offered no evidence in defense of the action it may not be said that the finding of the jury is not supported by the evidence. In overruling the various motions for a judgment the court cited the law as pronounced in 6 Am. Jur. 415, and which we think is a proper statement of the law applicable herein:

“A bailor is generally held not liable for injuries resulting to a third person from a defective condition of the subject of the bailment arising subsequent to the delivery thereof to the bailee, unless he has assumed the responsibility of keeping it in repair, in which case he may incur liability by a failure to use proper care to remedy or give warning of such defective condition after having received or become chargeable with notice thereof.”

See also Hudson v. Moonier, 102 Fed. (2d), 96; 131 A. L. R. 845.

We think the evidence clearly establishes that the compressor tank involved herein was personal property and not a part of the realty, but even if it were the latter, the lessor would still be liable under the facts presented.

In Brown v. Cleveland Baseball Co., 158 Oh St 1, the court said in the fourth paragraph of the syllabus:

“Where a lessor has not substantially relinquished to his lessee all occupation of and control over a portion of the leased premises and where such lessor has actually exercised his- right of occupation of or control over such portion, such lessor is under the duty to exercise ordinary care with respect to the condition of such portion and that duty extends to invitees of the lessee.”

We think the answers to the interrogatories clearly specify the acts of negligence chargeable to this appellant and the judgment of the court was properly entered upon the verdict.

Finding no error in the record the judgment will be affirmed.

WISEMAN, PJ, and HORNBECK, J, concur.


text:
    PICKWICK HOLDING COMPANY, Plaintiff-Appellee, v. WALLACE, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 4865.
    Decided December 2, 1952.
    Kenneth B. Johnston, Columbus, for plaintiff-appellee.
    Walter R. Hill, Columbus, for defendant-appellant.
   OPINION

By THE COURT.

Submitted on motion of the appellee seeking an order dismissing the appeal for the reason that the notice was not filed within the time required by §12223-7 GC.

The record reveals that the action was in forcible entry and detention; that on August 8, 1952, judgment was rendered for the plaintiff; that on August 11, 1952, a motion was filed to quash the summons and set aside the bailiff’s return of residence service on the defendant. This motion was overruled on August 22. On August 26 a motion to reconsider the order overruling the motion to vacate was filed which was overruled on September 3, 1952. The notice of appeal is directed to the order of August 8 and also to the one of September 3.

One of the questions pertinent to the issues appears to be the nature of the motion filed on August 11. If it was a motion for a new trial which was overruled on August 22, then the notice of appeal was seasonably filed. However, we are unable to so construe the motion of August 11, which we hereby quote:

“Now comes the defendant, Rozella Wallace by and through her attorney and objecting to the jurisdiction of the court over her person herein and appearing for the purpose of this motion only and not intending hereby to enter an appearance, moves the court to quash the summons issued herein and to set aside the Bailiff’s return of residence service thereon upon the following grounds, to wit:

“1. That the defendant is not a resident of the premises known as 303 East Gay Street, Columbus, Ohio.

“2. That the summons was not served in the city of Columbus, Ohio upon the defendant In the manner prescribed by law and the rules of this court.

“3. That this court has no jurisdiction of the person of the defendant in this proceeding.

“4. That the default judgment herein was rendered without proper service of process as required by law upon this defendant.

“5. That the judgment heretofore rendered against the defendant by default should be set aside since the service of process was contrary to law and as is more fully set out and shown in the affidavit herewith filed.”

Sec. 11575 GC defines a new trial as a re-examination in the same court of the issues after a final order of judgment or decree. The motion does not specifically seek a new trial, but only that the service of summons be quashed because of the alleged defect in service and that the judgment be vacated. It will be noted the defendant appears only for the purpose of the motion and does not enter an appearance. Therefore, in substance, she is objecting to a new trial for the reason she is not in court. Under these facts we cannot construe the motion of August 11 as a motion for a new trial.

The appeal is also directed to the order of September 3 which is an order overruling the motion to reconsider a ruling on a previous motion. Clearly this is not a final order as defined by §12223-2 GC.

The motion will be sustained.

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


text:
    STATE ON RELATION OF VLACH, Relator, v. JOHNSON, AUDITOR OF CITY OF EASTLAKE, Respondent.
    Ohio Appeals, Seventh District, Lake County.
    No. 534.
    Decided June 12, 1954.
    Louis A. Turi, Jr., Wickliffe, for relator.
    J. Melvin Andrews, Solicitor of the City of Eastlake, Eastlake, for respondent.
   OPINION

PER CURIAM.

The important question presented by the. motion of the relator is as to the right of this court to allow attorneys fees- to be taxed as costs in this action.

The original action' in this court is in mandamus to compel the clerk to certify the referendum petitions to the county Board of Elections, she having refused to do so.

The referendum was as to an ordinance amending the zoning ordinance and altering the distance from the lot lines that houses could be built. This court issued the writ. The petitions were submitted to the Board of Elections, vote was had, and the amendment defeated.

Now the relator seeks to have his attorney fees allowed and taxed as a part of the court costs to be assessed against the City and relies upon §733.61 R. C., which reads as follows:

“If the court hearing a case under §733.59 R. C. is satisfied that the taxpayer had good cause to believe that his allegations were well founded, or if they are sufficient in law, it shall make such order as the equity of the case demands. In such case the taxpayer shall be allowed his costs, and, if judgment is finally ordered in his favor, he may be allowed, as part of the costs, a reasonable compensation for his attorney.”

Sec. 733.59 R. C., provides as follows:

“If the city solicitor fails, upon the written request of any taxpayer of such city, to make any application provided for in §§733.56 to 733.58 R. C., inclusive, such taxpayer may institute suit in his own name, on behalf of the city. Any taxpayer of any municipal corporation in which there is no solicitor may bring such suit on behalf of such municipal corporation. No such suit or proceeding shall be entertained by any court until the taxpayer gives security for the cost of the proceeding.”

Sec. 733.58 R. C., provides as follows:

“In case an officer or board of a city fails to perform any duty expressly enjoined by law or ordinance, the city solicitor shall apply to a court of competent jurisdiction for a writ of mandamus to compel the performance of such duty.”

We hold that this is a proper taxpayer’s suit coming within the scope of §733.61 R. C., wherein the taxpayer shall be allowed his costs and since judgment is finally ordered in his favor he may be allowed as part of the costs a reasonable compensation for his attorney.

A case similar to the one before us is that of State, ex Keville v. Faurot et., City Commission of Lima, decided January 14, 1933, 44 Oh Ap 461. In its opinion the court stated on page 469:

“Sec. 4316 GC, requires that in a case like this the taxpayer shall be allowed his costs when the court is satisfied that he had good cause to believe his allegations were well-founded; nothing appeared at any place in this case to suggest that the taxpayer did not bring this suit in good faith and it must be presumed that he did so act. Hence the costs are adjudged against respondents, but the judgment, not being in favor of the taxpayer no compensation for his attorneys is allowed.”

In the case before us judgment was rendered in favor of the taxpayer and hence the statute specifically provides that an attorney fee may be allowed to the attorney in this case.

The motion of relator for allowance of a reasonable compensation for his attorney is sustained, and this court finds that $300.00 is a reasonable compensation and it is so ordered.

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


author: By THE COURT:

text:
    HAWKINS, Plaintiff-Appellee, v. CROSBY, Defendant-Appellant.
    Ohio Appeals, Second District, Montgomery County.
    No. 2280.
    Decided November 18, 1954.
    Paul Ziegler, Dayton, Sam Levin, Dayton, for plaintiff-appellee.
    Scharrer, Scharrer & Hanaghan, Dayton, By Oscar B. Scharrer, Of Counsel, for defendant-appellant.
   OPINION

By THE COURT:

This is a law appeal from the judgment of the Common Pleas Court rendered in favor of the plaintiff upon her first cause of action set forth in the petition. A jury was waived and trial was had by the court, which rendered a separate finding of facts and conclusions of law This cause of action was grounded upon an alleged breach of a contract of employment which was entered into on April 30, 1952, and the said breach .being committed on June 7, 1952.

In answer to the petition the defendant denied the execution of the contract and plead in the alternative that if such contract was ex-, ecuted by the parties, that the same was breached by the plaintiff herself by the soliciting of the defendant’s employees to leave their employment to work for her in a competitive prospective business. The defendant also plead that on or about June 6, 1952, she negotiated a settlement in full of all claims with the plaintiff and which is a bar to this action. All new matters contained in the answer were denied by the plaintiff.

On the issues joined the court found that there had been no accord and- satisfaction. This was a factual question and there being a conflict in the testimony on the same, we cannot say that the court erred in its conclusion.

The court further found that the plaintiff did not breach the contract as alleged, but on the contrary found,

“that plaintiff herein did not undermine defendant’s business but on the other hand was trying to preserve plaintiff’s business and undoubtedly if that were impossible, may have contemplated her own future, in considering the operation of another hospital.”

This finding is amply supported by the record; hence it may not be said to be erroneous.

The defendant’s first assignment of error claimed that the court erred in failing to find that the contract was void as being against public policy. This question was never raised in the court below and is being raised here for the first time. In an appeal on questions of law the reviewing court may consider only that which was considered by the trial court and nothing more. Bennett v. Dayton Memorial Park & Cemetery Assn., 87 Oh Ap 123; 3 O. Jur. 2d, 38.

It is next urged that the court committed prejudicial error in the admission of evidence which showed that the defendant sold the business, in which the plaintiff was engaged, several months after the alleged breach. The record reveals that the plaintiff admitted that prior to her discharge she had discussed with some of defendant’s employees the matter of going into business for herself and said employees coming to work for her. The reason given by the plaintiff for this discussion was that the business was failing and the, defendant was offering the same for sale. This evidence was admissible as it tended to corrobórate the plaintiff’s testimony. We find no error in this assignment.

It is finally urged that the court should have granted the defendant a new trial upon the grounds .of .newly discovered évidence. In support of this assignment defendant has filed two affidavits in which she alleges that she is in possession of cancelled checks showing that between February 15, 1952, and April 26, 1952, in violation of the trust imposed in her, the plaintiff wrongfully took the sum of $1,146.90, which sum is due and owing to the defendant. The record reveals that the trial of this case was begun on April 25, 1953, and that these cancelled checks have all been in existence since April 26, 1952, and some prior thereto, and have been in the defendant’s possession or her bank’s, since their deposit. No cause is shown in the defendant’s affidavits as to the reason, with due diligence, the same could not have been produced at the time of trial. A deposition of the • plaintiff is offered in support of the motion but it fails to support the alleged grounds. The trial court was of the opinion that the evidence alleged to be newly discovered was in the possession of the defendant at the time of trial and that due diligence was not used to discover the same and produce it at the trial. The granting or refusing of a new trial on the ground of newly discovered evidence rests largely within the sound discretion of the trial court and when such discretion has not been abused reviewing courts should not interfere. Newly discovered evidence is other than that which might have been known before the termination of a trial had due diligence been used. Domanski v. Woda, et al., 132 Oh St 208.

We are of the opinion that the court properly exercised its discretion in overruling the defendant’s motion.

Finding no error in the record, the judgment will be affirmed.

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


author: By HOLTSBERRY, J.

text:
    STARR et, Plaintiffs, v. LINZELL, DIRECTOR OF HIGHWAYS, Defendant.
    Common Pleas Court, Licking County.
    No. 41526.
    Decided May 23, 1955.

      J. Dale McNamar and Harold E. Rutledge, Newark, on behalf of plaintiffs.
    Hugh E. Kirkwood, Jr., and Fred G. Reiners, Assistant Attorneys General, Columbus, on behalf of defendant.
   OPINION

By HOLTSBERRY, J.

This action is for injunction against S. O. Linzell, as Director of Highways, State of Ohio. The plaintiffs own the service statidn and bus station at the northwest corner of the intersection of State Route 16 and County Road 26 (Summit Station Road) Licking County, Ohio.

Plaintiffs and their predecessors in title, their customers and the public, have had unlimited access thereto for more than 25 years. Valuable improvements for business purposes have been made in the past by the owners of said real estate with reference to the existing and present access and grade of said State and County roads.

The Director now proposes to construct along said business, an obstruction, barrier or so called island which will consist of concrete and extend about 80 feet along the front of the business on the State route and will extend several feet around the corner of said County road northerly. The barricade will be one-half foot in heighth and four feet in width.

The effect of the proposed barricade or island is admittedly a limitation of access to and from the business. The Director claims some safety features will be effected by limiting the access.

It is conceded that neither highway is a limited access highway as defined under §5535.02 R. C. and that the Director does not propose to pay anything to the property owners. Further the Director has taken no action by resolution such as is done as a legal requirement in appropriation proceedings according to the testimony of F. J. Felty, Right of Way Administrator.

In addition to the evidence offered, in the court room, by agreement of all attorneys, this Court was taken to said business property; highway workers and officials placed lime where the obstruction or island was proposed, and among other things a display was made of automobiles entering and leaving the station under various circumstances, conditions and directions.

It was further uncontroverted that the design of the obstruction or so called island was that an area would be provided to erect a stop sign and that after the obstruction there would still remain certain access at the west end and on the east end of plaintiff’s property at locations other than such as would be blocked off by the construction.

Another way of putting it might be to say that the plaintiffs are “quarantined” at the main door, but they can still go through side entrances with the added inconvenience.

The director contends he can do this construction under “police power” within the limits of an existing highway without regard to the law or damages or compensation to an abutting property owner. It must be remembered that this is not the ordinary type of safety island which we are familiar with over the State, but that the admitted purpose of this construction is to limit and prohibit ingress and egress at the points where it would be constructed.

The inescapable facts this Court must reach are that this construction directly impairs the owners’ access, molests a property enjoyment, and the convenience of access is materially diminished proximately constituting an unconstitutional encroachment resulting in damage to the property owner direct and not remote.

On April 13, 1955, the Ohio Supreme Court in State ex rel v. Linzell, 163 Oh St 97, held that an owner of property abutting on a public highway, possesses, as a matter of law, not only the right to the use of the highway in common with other members of the public, but also a private right or easement for the purpose of ingress and egress to and from his property, which latter right may not be taken away or destroyed or substantially impaired without compensation therefor. This Court further held such right to be existant with respect to an existing highway, but further held that an owner would not be entitled to compensation if the highway had been relocated at a point somewhere else.

With respect to “police power” and the taking of property rights or interference without compensation, see Ohio Constitution, Article 1, section 19; Smith et, v. Erie Railroad Company, 134 Oh St 571; In re Claim of Kincade, 95 Oh Ap 329.

Under the circumstances herein injunction is a proper remedy for the landowner. See 15 O. Jur., p. 1049, sec. 391; 25 O. Jur., p. 1017, 38; 21 O. Jur., p. 1022, Sec. 27.

To hold otherwise would make the property owners of Ohio servants of the Director of Highways rather than the Director being the servant of the people of Ohio, and paid by the people of Ohio.

It is true that convenience of traffic and the safety of travelers along highways must be given great consideration, but these things cannot defeat the rights of property owners without their being adequately compensated as safeguarded and required by our Constitution, Legislative Enactments, and Judicial decisions.

Therefore, on the ground that the Director has not attempted to take the area of the barricade, obstruction, or so called island, as provided by the Constitution and statutes of Ohio, the injunction is granted.


author: By HARVEY, J.:

text:
    CHALKER, Appellant, v. FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION, BOARD OF REVIEW, BUREAU OF UNEMPLOYMENT COMPENSATION, Appellees.
    Common Pleas Court, Summit County.
    No. 192872.
    Decided January 31, 1955.
    Robert Maher, Akron, for appellant.
    Board of Review, Bureau of Unemployment Compensation, Columbus, for appellee.
   OPINION

By HARVEY, J.:

The Bureau of Unemployment Compensation denied benefits to the claimant.

The matter is before this Court on appeal, it being the claim of the Appellant that the decision of the Board of Review and the decision of the Referee were contrary to law, unreasonable and against the manifest weight of the evidence.

The appellant in this case was employed by a Building and Loan Association as a charwoman. She was the sole support of three minor children and herself. During her period of employment two officers of the Building and Loan Association sold her a washing machine and other furniture and appliances, and took her note in payment. During her employment she paid a total of about Seven Hundred Dollars at the rate of Ten to Fifteen Dollars a payment on this merchandise, and during the same period that she was paying for the merchandise her wages were garnisheed by other creditors.

These officers of the Building and Loan assisted her with other creditors, and held off garnishments from her wages to pay these creditors. They further warned her that it was against the rules for an employe to have garnishments and that if she had any more garnishments she would be discharged.

Eight days after she paid off the notes of these two executives she was discharged by reason of an indicated garnishment which arose because of another improvident purchase.

The Finding of the Board was that claimant’s benefit rights should be suspended in accordance with §1345-6-c (1) GC (§4141.29 R. C.) as of July 20th, 1952.

This section provides that no individual may serve a waiting period or be paid benefits for the duration of any period of unemployment with respect to which the administrator finds that such individual (1) quit his work without cause, or has been discharged for just cause in connection with his work.

It would seem that the phrase “just cause” comprehends some misfeasance or non-feasance and could be synonymous with the phrase “good cause”.

A good cause for discharging one would be a cause that arose from some fault which constituted a misconduct, so we see no substantial difference between a discharge for “just cause” in connection with the work, and a statute which provides for discharge for “misconduct in connection with the work”.

It would seem that the Board of Review in order to sustain their judgment would necessarily have had to find that this discharge was for just cause, and in addition thereto was a cause which arose in connection with the work.

Of course, an employer has the right to set such standards of employment for the selection of his employees as he may see ñt. The employer, therefore, had a right to provide a rule that an employee would be discharged for garnishments. This was a matter of a selection.

Certainly, if one of the executives or tellers in the Building and Loan was persistently having their wages garnisheed that could easily be interpreted as a hazard in the Institution where one handles money daily. It would be fairly interpreted that such a teller who was subject to garnishments could be discharged within the meaning of the statute not only as a just cause but in connection with his work.

But the Court is of the opinion that the discharge in this case could not be interpreted as a discharge for just cause “in connection with her work”. Although the employer may make such rules as he sees fit, it does not follow by reason of such selective processes upon the part of the employer that an employe should be deprived of the benefits of unemployment compensation where the discharge is one that is not in connection with her work.

We, therefore, hold that the employer had a right to discharge the employe in this case, and we further hold that the discharge was not in connection with her employment, and does not deprive her of the benefits of the unemployment compensation, because a garnishment of the wages of a charwoman under the circumstances of this case is not such a discharge for just cause in connection with the work as to deprive her of the benefits of this Act.


author: By HORNBECK, J.: PER CURIAM:

text:
    FLATTER, Plaintiff-Appellee, v. FLATTER et, Defendants-Appellants.
    Ohio Appeals, Second District, Darke County.
    No. 725.
    Decided December 31, 1954.

      Spidel, Staley & Hole, Greenville, for plaintiff-appellee.
    S. E. Mote, Greenville, Co-Counsel, T. A. Billingsley, deceased.
    Gertrude A. Bucher, Dayton, for defendants-appellants.
   OPINION

By HORNBECK, J.:

This is an appeal on questions of law from a judgment of the Common Pleas Court decreeing a divorce to plaintiff for the aggression of the defendant on the grounds of gross neglect of duty and extreme cruelty, determining property rights, awarding alimony and custody of the two minor children of the parties, fixing the amount of support money for them, and making other adjudications.

The plaintiff charged that the defendant was guilty of gross neglect of duty and extreme cruelty, prayed for a divorce, custody of the two minor children, alimony and settlement of property rights. Defendant, after a denial of the charges, cross-petitioned alleging gross neglect of duty and extreme cruelty.

Nine errors are assigned in the original brief of appellant. In a later brief, counsel for appellant discuss many alleged errors, some of which are reached only by the ninth assignment, “other errors apparent in the record”, and argued for the first time in the supplemental brief of appellant. There were errors in this case which were definitely prejudicial to the plaintiff but she has not appealed. There were also errors that we believe were prejudicial to the defendant. We will discuss them later.

The evidence, construed in its most favorable light to the plaintiff, as we are required to do on this appeal, supports the finding of the trial judge as proof of grounds for the divorce decree which was granted to the plaintiff. It would serve no good purpose to burden this opinion with the evidence justifying the decree.

In no view of the evidence would it support a finding of extreme cruelty against the plaintiff, much less that she was chargeable with gross neglect of duty. The only question of moment involves the, judg-. ment of the court in granting a divorce to the plaintiff, even though she established grounds therefor, in view of the testimony tending to show misconduct on her part. Although divorce is strictly a statutory proceeding, many courts invoke the equitable maxim that a party, to secure a decree, “must come into court with clean hands”. In applying this rule the trial judge is vested with the widest discretion. In this case it was employed to the advantage of the plaintiff. We can not say that it was abused. We make the observation that, had it been resolved against the plaintiff, we would have held that the court was within its province in so holding.

Our discussion above disposes of, in the main, assignments of errors Nos. 1 and 2.

The third assignment is that:

“The court erred in fixing the valuation of the real estate at $13,500, and in finding against the $1,000 note of Earl Flatter and in awarding the wife an unreasonable amount of alimony or division of property.”

The evidence of the value of the realty varied from $11,000 to $16,000. Although not determinative, it is to be noted that the plaintiff stated that she would give $14,000 for the farm and the defendant would not say that he would not give $13,500 for it. This testimony is not in the usual, form of fixing value but both of the parties could have testified as to value and what they say indicates that the court was correct in its appraisal. Manifestly, there was ample support for the value which the court eventually fixed. We reserve further observation as to the unreasonableness of the alimony award, the division of property and the failure to find with Earl Flatter on his $1,000 note, and will discuss these questions later.

The fourth error assigned is that the court erred:

“In ordering hogs that were not fit for market sold without the consent or acquiescence of the defendant, at a price that was inadequate.”

It is indeed doubtful if the order of the court respecting the sale of these hogs was proper in this divorce proceeding which is not, in any sense, a receivership. However, the test that we must apply is whether or not the order resulted in prejudice to the defendant. We cannot so find. It is common knowledge that hogs must be marketed when ready. Although it is claimed that the hogs were sold when not fit for market, and that the price which they brought was inadequate, there is not the slightest proof of either of these claims.

The fifth assignment has been heretofore considered.

The sixth and seventh assignments relate to certain statements made by the court in the opinion in passing on the merits of the case. There were no special findings -of facts, the statements were not carried into the judgment entry, and are neither material nor decisive of any issue, as we read them. In probability counsel have misinterpreted the observations of the court. The trial judge did not hold that the failure of the husband to remonstrate with the individual against whom he was making complaint was a defense to any proven misconduct on the part of the wife, but that inasmuch as the conduct was the basis of the charge of extreme cruelty against her, under the circumstances appearing, the husband had some obligation to assist in changing these conditions. This was a natural and logical reaction to the conduct of the defendant. Although he may not have been entirely responsible for the presence of the man in question in his home, there is no doubt that, in part, he was so responsible. Why he would not at some time remonstrate against this individual himself is difficult of understanding.

The ninth assignment is that:

“The court erred in considering the report of an investigating officer on the case without permitting the defendant to examine him as to the source of his finding or to cross-examine him.”

This error is not exemplified on the record. There is no showing of any request to examine the investigator, the source of his finding, or to cross-examine him, or of any denial whatever of such right.

The eighth assignment is general, other errors apparent upon the face of the record.

The court in its order found that the parties owed the parents of plaintiff $1,237.00, with interest, and Earl Flatter $824.00, with interest, but refused to allow Earl Flatter $1,000 on a note which he claimed to hold against one of the parties.

We have grave doubt as to the authority of the court to find for or against any of these claims and to order that they be paid or not paid out of the proceeds of the sale of the property of the parties. Assuming that the court had the authority to allow the $1,000 note of Earl Flatter, we could not hold that it erred in not doing so because as a claim against the assets it was the subject of substantial dispute.

The creditors of one or both parties in a divorce action may not have their claims adjudicated and ordered paid out of the funds of the parties. Certainly the holding of the court against the Flatter note does not preclude an action by him to recover upon it. A party to a divorce action should not be required to defend against creditors in that action. If it were the approved practice to adjudicate claims of simple creditors in divorce cases with the right of jury trial, without making them parties, or pleadings they would take on the aspect of extended and prolonged law suits. The divorce forum is not the place for such adjudications.

We now discuss the claim that the alimony award and property settlement were excessive. We are unable to comprehend the rationale of this contention. Let us examine the figures.

The court found properly, upon the evidence, that the real estate and personal property was jointly owned by the. parties; that the total value of this property was $21,003.50. The debts which the court required to be deducted from this amount were, with interest, about $2,175, leaving a balance of $18,828.50. As each party owned one-half of this value, the amount was $9,414.25, but the court awarded plaintiff but $8,000 in property settlement. If we are correct, the court penalized plaintiff to the extent of more than $1,000. The alimony as stated in the judgment entry was fixed at the sum of $182.25. It is obvious that the error in this award was to the prejudice of the plaintiff, but she is not appealing.

We make some observations concerning the so-called property settlement. The statute which controls the award of alimony provides:

“Sec. 3105.18 R. C.: The court of common pleas may allow alimony as it deems reasonable to either party, having due regard to property which came to either party by their marriage, the earning capacity of either, and the value of real and personal estate of either at the time of the decree.

“Such alimony may be allowed in real or personal property, or both, or by decreeing a sum of money, payable either in gross or by installments, as the court deems equitable.”

The court indicated no purpose to award alimony except the $182.25 so designated, and this was to the plaintiff. The judgment entry further provides that the total sum of $8,182.25 shall be paid by defendant to the Clerk of Courts, within forty days, in full satisfaction of alimony in the sum of $182.25 and property settlement in the sum of $8,000; and that at the same time the said Naomi Ruth Flatter shall execute a deed for her interest in the land and release by necessary conveyances all her right, title and interest in and to any of the chattel property heretofore referred to. By a former paragraph of the entry it was provided that of the cash in custody of the Clerk in the amount of $2,098.50 there first be paid the amount found due to two of the creditors of the parties and that “The plaintiff, out of said property above enumerated, shall receive as alimony the sum of $182.25 and the sum of $8,000 as property settlement, and the household goods which she now has in her possession.”

As we have heretofore said, the order that certain sums be paid to creditors of the parties cannot be supported and it was prejudicially erroneous to so provide.

The order respecting the payment of $8,182.50 within forty days, and if not made that the real estate be sold, but that if paid, the plaintiff deed all of her share in the real estate and transfer her interest in the personal property to the defendant, is prejudicial not only to the plaintiff but to the defendant. It accomplishes a partition of the property, a remedy not permissible in divorce cases. It forces the plaintiff, even though she may not desire to do so, to sell her half interest in all of the property. It requires the defendant to raise a sum of money within forty days, which might be difficult.

The court found that the parties owned the property listed, real and personal, share and share alike. In the absence of an award of alimony which would be required to be paid from the husband’s share of the property, or an award to the plaintiff of a share of the husband’s holdings, the court was without power to divide the property. The property settlement was a property division. The parties were given only what each owned with immaterial exceptions.

The only amount of money which the defendant was required to raise was the $182.50 awarded to the plaintiff as alimony. The court could have ordered the defendant to pay this sum to the plaintiff and he, no doubt, could have readily complied.

In an ordinary partition proceeding, if the real estate could not be aparted, it would be appraised and either party could elect to take it at the appraisement. If it sold, and if the defendant bought it, he would have the privilege of paying one-third down with deferred payments as to the other two-thirds. This privilege was denied to him by the court order, and in one aspect of the order he was required to buy plaintiff’s share of the real property and if he did not, to suffer his share to be sold.

As early as DeWitt v. DeWitt, 67 Oh St 340, the limits of the authority of the court in awarding alimony in a divorce proceeding are established. 2nd Syl.:

“* * is error for the court, having granted the wife a divorce for the aggression of the husband and awarded her alimony payable in money, to attach to the payment of such alimony a conditiion that she quit claim to the husband her interest in her own land, * *

In Gucciardo v. Gucciardo, 5 Abs (App.) 597, it is held:

“Sec. 11990 GC, later 8003-17 GO and now 3105.16 R. C. and 3105.18 R. C., does not confer upon trial court power to require wife to purchase husband’s property, or to require her to convey her real estate to husband.

“Court exceeds power given it by General Code when it undertakes to dispose of property rights which husband and wife own in common in real estate.”

In Huff v. Huff (App.) 79 O. App. 514, the first syllabus recites:

“In an action for divorce and alimony, the court is without authority to make a division of the property of the parties.”

At page 518 of the opinion it is said:

“As substantially all of the real estate involved is owned by the parties jointly, a division thereof would in effect partition such real estate between them, a result to be accomplished only in a proceeding in partition.”

This court, in Nelson v. Nelson, 14 Abs 510, held that a divorce decree may be entered without making a division of property held by the parties in their joint names.

An opinion discussing some of the questions presented in the instant case is found in Fourman v. Fourman, (Common Pleas, Montgomery), 34 Abs 3. The fourth syllabus holds that:

“The Common Pleas Court cannot grant partition of the real property.”

The opinion also holds that the Common Pleas Court has no jurisdiction to appoint a receiver to conserve the rents and profits until the final hearing of the case.

This court, in Miller v. Miller, 78 Oh Ap 381, a case from Darke County, considers and discusses some of the principles involved here In the syllabi it is said:

Decided February 5, 1955.

“Alimony begins when in a divorce decree the court orders payment to a party from the aggressor’s property, money or earnings. (Paragraph two of the syllabus in Fisher v. Fisher, ante, 125, approved and followed.)

“Where the court grants a divorce to the wife, it has no power, in the absence of agreement between the parties, to divest the wife of any part of her title to her undivided one-half of jointly owned real estate by giving the husband the first $1,000 of the proceeds therefrom and then equally dividing the remainder.”

Other errors are assigned, among which is the claim that the court erred in requiring the defendant to pay a premium on a policy wherein the children were the beneficiaries.

As we understand it, counsel have indicated a willingness to remove this provision from the order, and it may be done if insisted upon. However, although in form somewhat irregular, it accomplishes the purpose of a further provision for support for the children, which we would not hold to be prejudicial. The support required for the children was meager indeed, and might be changed if the provision for the insurance be deleted.

Coming then to the judgment in this Court. We hold that the order requiring payment of certin sums to designated creditors of the parties was improper and prejudicial. That the court properly made determination that the parties owned all of the property, real and personal, in equal proportions. That the award of alimony in the sum of $182.50 was regular, and was not prejudicial to the defendant. That the order requiring the payment of a certain sum by the defendant within forty days, and the other incidental provisions thereto, accomplished nothing more than a forced partition of the property of the parties jointly owned, and is erroneous and prejudicial. In no other particular do we find any error assigned well made. The order will be modified in accordance with this opinion, and the cause will be remanded for further order of the trial court.

Were not the court, in this type of action, restricted to its statutory authority, the order under review might. be sustained upon equitable principles and because, when complied with, it would accomplish a complete adjustment of the rights of the parties. But as it is objected to on this appeal we cannot support it in its entirety. Should counsel for both parties, upon further consideration, be of the opinion that the entry as now framed would, in the light of our opinion, accomplish a more satisfactory adjustment than the modified order which we propose, we would be disposed to accede to the wishes of counsel.

If upon the one proposition of the correctness and validity of the so-called property settlement we are, in the judgment of counsel, in error in any of our factual premises, it may be brought to our attention and we will further consider this aspect of the appeal.

WISEMAN, PJ, and MILLER, J, concur.

ON APPLICATION FOR REHEARING

No. 725.

OPINION

PER CURIAM:

Applications for rehearing have been filed by both parties to this appeal. Appellee urges that the property division ordered by the trial court is authorized by §3105.20 R. C., which Section refers to: “Injunction and equity powers” and contains this sentence:

“In any matter concerning domestic relations, the Court shall not be deemed to be deprived of its full equity powers and jurisdiction.”

It is asserted that all of the authorities cited in our opinion were released prior to the above amendment to §3105.20 R. C.

We hold that the amendment does not affect the order dividing the property of the parties after it was found that they jointly owned the real estate, and the personal property in equal proportions. The specific authority to award alimony and the extent thereof is found in the statutes §§3105.17, 3105.18 R. C.

Partition is not contemplated and may not be accomplished in a divorce and alimony action such as we have on this appeal.

Rainsburg v. Rainsburg, 80 Oh Ap 303, is cited as being in conflict with our decision. We do not so read it. The syllabus of this case reads:

“Where a divorce is granted to a husband for his wife’s aggression, on his cross-petition in his wife’s action for divorce, the court has jurisdiction to award alimony to the husband, out of both real and personal property, with terms and conditions of payment, although the husband’s cross-petition does not pray for support money or alimony but does contain a prayer for general relief.”

The whole purport of this case is that the property which was awarded to the husband was alimony and that the Court had the right to make the award. The statute (11983 GC) under which the case was decided, as pointed out in the last brief of appellant, was repealed August 28, 1951, 124 Ohio Laws 178.

On the'application of appellant for rehearing we need but say that we expressly found that there was support in the record for a decree of divorce to the plaintiff and it was implicit in that finding that there was corroboration of the ground upon which the decree was granted. We also indicated fully the extent to which alimony by the entry, as we interpret it, was awarded under the decree. Both applications will be denied.

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


text:
    MATTEO, d. b. a. AL’S CAFE, Appellant-Appellee, v. STATE, DEPARTMENT OF LIQUOR CONTROL, Appellees-Appellants.
    Ohio Appeals, Second District, Franklin County.
    No. 5096.
    Decided February 2, 1955.
    Myron S. Stanford, Cleveland, for appellant.
    Hon. C. William O’Neill, Atty. Geni., Robert B. Krupansky, Kiehner Johnson, Asst. Attys. Geni., Columbus, for appellees.
   OPINION

By THE COURT.

This is an appeal on questions of law from the judgment of the Common Pleas Court of Franklin County reversing the Board of Liquor Control, which sustained the Department of Liquor Control, suspending the license of the appellee, a holder of Class D-l and D-2 permits.

The court found that there was not reliable, probative and substantial evidence to support the order, and that the order is not in accordance with law.

In this Court the assignment of error is directed solely to the judgment of the court with respect to the charge that the permit holder, on Sunday, August 23, 1953, sold intoxicating liquor, to wit: wine, in violation of §4301.22 (D) R. C. At the hearing before the Board the bottle of wine, a marked dollar bill, and the chemist’s affidavit showing an analysis of the contents of the bottle were introduced as exhibits. The chemist was not present and did not testify respecting the analysis as shown by the affidavit. The Common Pleas Court held that the chemical analysis was improperly introduced and could not be considered on review by reason of the provisions of §2317.40 R. C., which requires the custodian or other person who made such record, or under whose supervision such record was made, to testify to its identity and the mode of its preparation. The lower court took the position that in the absence of this evidence there was not reliable, probative and substantial evidence to support the order.

Counsel for the appellee, the permit holder, in support of the position taken by the Common Pleas Court, cites the case of State v. Phillips 90 Oh Ap 44, 103 N. E. (2d) 14, which held that it was error to admit a business reeoi'd where neither the custodian nor the person who made such record testifies to its identity. However, in that case the court in its opinion, on page 47, states that the evidence was admitted “over defendant’s objection.”

In the instant case the record shows that before the department rested, counsel for the department stated “at this time, department would like to offer into evidence department’s Exhibits A, B and C.” The chairman of the Board asked whether there was any objection. Counsel for the permit holder stated: “No objection.” Whereupon the chairman of the Board stated: “They shall be received.”

Sec. 2317.40 R. C., was enacted to facilitate the presentation of such evidence in the record and to liberalize the “shop book” rule, which was an exception to the general rule excluding hearsay evidence under the common law. Hearsay evidence is incompetent, but clearly such incompetent evidence may be waived by failure to object. The general rule is that no advantage can be taken of the admission of improper testimony or evidence unless objection to its admission was made in the lower court. In 3 O. Jur. 2d, page 65, Sec. 203, the text is as follows:

“An objection that might have been taken to evidence on the trial in the court below, but which was not taken, will be considered as waived, and will not be noticed on review.”

(Numerous cases cited.)

In Petro v. State, 148 Oh St 473, 76 N. E. (2d) 355, the eighth paragraph of the syllabus is as follows:

“Where the answer to a proper question contains hearsay, and there is no objection to or motion to strike such hearsay, and no request that the jury be instructed to disregard same, such evidence may properly be considered and given its natural probative effect as if it were at law admissible, the only question being with regard to how much weight should be given thereto.”

See Ruch v. State, 111 Oh St 580, 146 N. E. 67; Paulson v. Hall, 51 Abs. 21, 80 N. E. 2d, 193. See also 3 Am. Jur., page 40, Section 260. We find nothing in §2317.40 R. C., to change the application of the general rule on waiver.

Under the provisions of §119.09 R. C., the Board of Liquor Control is given authority to pass on the admissibility of the evidence. Furthermore, Regulation 65, Section IV, specifically provides that the production of evidence before the Board is to be goverened by the rules of evidence required by Ohio courts in civil cases.

In our opinion the Common Pleas Court had a right to consider the chemical analysis, which showed 20.48 per cent of alcohol by volume, and 16.66 by weight, and was identified as wine fit for human consumption. A proper identification of the bottle of wine; which the officer testified was taken from the person who made the purchase, appears.

In our opinion the Common Pleas Court was in error in ruling that the judgment of the Board was not sustained by reliable, probative, and substantial evidence, and was not in accordance with law. After an examination of all of the evidence, and giving the Board the right to determine the credibility of the witnesses, this Court is of the opinion that the judgment of the Board was sustained by reliable, probative and substantial evidence, and was in accordance with law. Farrand v. Board, 151 Oh St 222, 85 N. E. (2d) 113.

Judgment reversed.

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