author: By SKEEL, PJ.

text:
    DeANGELO, Plaintiff-Appellee, v. W. T. GRANT COMPANY, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22411.
    Decided May 26, 1952.
    Roth & Pollock, Cleveland, for plaintiff-appellee.
    Davis & Young, Cleveland, for defendant-appellant.
   OPINION

By SKEEL, PJ.

This appeal comes to this court on questions of law. from a judgment entered for the plaintiff in the Common Pleas Court of Cuyahoga County. The action is one seeking damages for slander.

The defendant owns and operates a retail department store in Cleveland. The plaintiff, prior to the time of the incident upon which this action is founded, was employed as a sales girl in the store of the defendant. On the 11th day of June, 1949, the plaintiff was called to the personnel supervisor’s office at about 5:10 P. M., and dismissed from the service of the defendant.

The petition of plaintiff alleges that she was employed as a sales girl by the defendant. That while serving in that capacity the defendant, through its agent and manager of the department in which she was employed, maliciously published “slanderous matters concerning the plaintiff, concerning the shortages of money accounts allegedly caused by her in her department, that is to say, that she, meaning the plaintiff, is the person who caused such shortages and overdrafts in her accounts, while she was one of the cashiers and sales ladies in the employ of the defendant, thereby meaning that the plaintiff had feloniously taken money and/or mismanaged her accounts in the cash register of said corporation, the same being heard by divers persons. * * * Plaintiff further says that by reason of such slander, divers persons, particularly the Bogin Silk Underwear Company who would otherwise have employed the plaintiff, refused to do so and plaintiff has been unable to obtain other employment.”

The answer of defendant admitted its corporate capacity, the character of its business, the operation of its store in Cleveland and the employment and discharge of the plaintiff, and then entered a general denial of all of the other allegations of the plaintiff’s petition.

The plaintiff’s evidence, which was supported by one other witness, a sales girl who had been discharged just before the plaintiff, and who claims to have been standing some thirty feet away in a hall leading to the personnel director’s office, testified as to the alleged slander as follows:

“Well, I went into Miss Cragin’s office and she started it. She opened it up. She said, ‘Lucky (meaning the plaintiff) the register has been short, so we don’t need you any more.' Well, when I heard that ‘short’ right away I thought that is stealing, so I ask her if she was accusing me of stealing that I wasn’t a thief or crook and she said, ‘that is just what I mean.’ ”

Plaintiff also called as her witness the personnel manager of the defendant, that is the person whom it is claimed made the foregoing statement while discharging the plaintiff, who denied making any such accusation and said, among other things in her testimony in chief:

“I told her that we were not accusing her of stealing; we thought it was carelessness; she was not accused of stealing.” The defendant claims the following errors:

1. That there is no evidence of publication of any alleged slanderous words.

2. That the allegations of the petition show that the occasion upon which the alleged slanderous words were used was such as to bring them, if made, within the rule of a “qualified privilege” and that there is no evidence of express or actual malice.

3. Error in the charge.

The first question presented in argument is, — on the state of the pleadings can the defendant now raise the legal defense that the alleged defamatory remarks come within the rule of a qualified privilege? It,is the claim of the plaintiff that such a defense is affirmative and must be especially pleaded in the answer. This would be true were it not for the fact that the case stated in the plaintiff’s petition is one coming within the doctrine of a qualified privilege. Under such circumstances a general denial is sufficient to present such issue.

In the case of Post Publishing Co. v. Moloney, 50 Oh St 71 at page 85 the court said:

“It is not contended that the publication in question was one of absolute privilege; and the facts which the defendant claims made it one of qualified privilege not appearing in the petition it becomes necessary to plead them by way of defense.” (Emphasis added.)

Statements made in the course and scope of employer-employee relationship come within the doctrine of a qualified privilege. In the case of McKenna v. Mansfield Leland Hotel

Co., 55 Oh Ap 163, the syllabus provides:

“The manager of a hotel, in the presence of the kitchen supervisor, and in the presence of no other person, charged a kitchen employee with larceny. Thereafter, being importuned by another person for a recommendation for the employee, the manager refused. Upon insistence for a reason for the refusal he repeated the larceny charge. HELD:

1. There was no such publication of the slanderous charge as to make it actionable.

2. The hotel manager, and the kitchen supervisor had a common interest to protect, and a communication made honestly by one to the other is privileged.

3. One answering an inquiry addressed to him about a former employee, is not liable to an action, when his answer is given honestly, even though it is incorrect.

4. Whether the occasion of a communication is such as to make it privileged, is a question for the court.”

And at page 167 the court quotes from 98 A. L. R. 1301, as follows:

“The preponderance of authority supports the view that communications between an employer and an employee, or between two employees, concerning the conduct of a third employee or former employee, are qualifiedly privileged, and thus, even though such a communication contain matter defamatory to such other or former employee, he cannot recover in the absence of sufficient proof of actual malice to overcome the privilege of the occasion.”

See also: 17 Ruling Case Law 341; 33 American Jurisprudence p. 124 parag. 126; 53 Corpus Juris Secundum p. 186, parag. 109.

The evidence of the plaintiff given in support of the issues presented by the pleadings, considered in its most favorable light to the plaintiff is to the effect that the communication complained of was given in answer to the plaintiff’s question as to what was meant by the statement that “the register has been short.” For this further reason the alleged slanderous statement was one of qualified privilege.

In the case of Christopher v. Akin, 214 Mass. 332, 101 N. E. 971, and reported in 46 L. R. A. (n. s.) 104, the syllabus provides:

“A statement by an employer who has been compelled to pay for property taken from a house where he was doing work, to an employee whom he discharged because he suspects him of having taken the property and from whose pay he has deducted its value, in response to a question as to the cause of the deduction that it was for property which the employee stole on the specified job, is privileged although made in the presence of other employees.”

In the case of Montgomery Ward & Co. v. Watson, 55 Fed. Rep. (2d)' 184, the court had for consideration a case where the manager of the employer, in discharging two employees, accused them of stealing some shirts. The court (Judge Parker of the Circuit Court of Appeals 4th Circuit, writing the opinion) in reversing the judgment of the trial court for refusing to enter a directed verdict said at page 18 of the opinion:

“Three questions, therefore, are presented for our consideration: (1) as to whether the occasion was privileged; (2) as to whether the publication exceeded that which the occasion justified; (3) as to whether there was evidence of express malice sufficient to take the case to the jury, notwithstanding the privilege. We think that all of these questions must be answered in favor of the defendant.

“As to the first question, there can be no doubt but that the occasion was one of qualified privilege. Such privilege exists with respect to a statement where it concerns a matter as to which the person making it has a bona fide duty or interest and is made in good faith in the performance of the duty or the protection of the interest to a person having a corresponding duty or interest with relation thereto. * * *

“There was no evidence whatever of any such excessive publication as would defeat the defense of privilege. There was no publication at all except to the plaintiffs themselves, who were vitally interested in the matter, and to the office manager who had furnished the information upon which the investigation was commenced. It is clear that neither her presence nor that of the elevator boy destroyed the privilege of the occasion; for it is well settled that the casual presence of by-standers who overhear the communication, does not rob the occasion of the protection of privilege. 17 R. C. L. 344; 36 C. J. 1248; Newell On Slander & Libel (4th Ed) 394; New York & Porto Rico S. S. Co. v. Garcia, supra; Hartsfield v. Harvey C. Hines Co. 200 N. C. 356, 147 S. E. 16.

“Since, therefore, the occasion was privileged and the publication not excessive, plaintiffs are not entitled to recover, unless they can establish actual malice as the motive of the publication. In the case of a publication, not privileged of words actionable per se, malice need not be shown, but is implied in law from the publication itself. In the case of a privileged communication, however, express malice as distinguished from malice in law must be shown; that is to say, if the occasion be privileged, the plaintiff may not recover, although he proves that defendant used language actionable per se and that same was false, unless he goes further and shows that in using same, defendant was moved .by actual malice, such as ill will, spite, grudge or some ulterior motive.” The plaintiff’s pleadings and evidence having presented a cause of qualified privilege, it becomes a necessary part of her case to establish express malice and the court should have so charged the jury.

Coming therefore to the third claim of error, wherein at the conclusion of the general charge the defendant requested a charge on the question of privilege, such request should have been granted and the failure to do so constituted error prejudicial to the rights of the defendant.

Whether or not the evidence is sufficient to establish express malice is a question that should have been submitted to the jury. The court’s general charge confined the evidence on this question to a determination of whether or not punitive damages should be assessed and told the jury that the plaintiff could recover actual damage by showing implied malice which could be implied from the use of words which were actionable per se. This likewise was prejudicial to the rights of the defendant.

For the foregoing reasons, the judgment is reversed and the cause is remanded for further proceedings. Exc. Order see journal.

HURD, J, THOMPSON, J, concur.


source: Caselaw Access Project

author: By WEBER, J.

license: Public Domain

text:
    BOARD OF EDUCATION OF INDIAN HILL EXEMPTED VILLAGE SCHOOL DISTRICT, Plaintiff, v. BOARD OF EDUCATION OF HAMILTON COUNTY, George Guckenberger, Aud.
    Common Pleas Court, Hamilton County.
    No. A-127166.
    Decided January 14, 1952.

      Robert L. Black, Jr., Cincinnati, for the Board of Education of Indian Hill.
    George L. Metzger, Cincinnati, for the Board of Education of Hamilton County, Ohio.
    C. Watson Hover, George S. Heitzler, Jr., Cincinnati, for the Auditor of Hamilton County, Ohio.
    Frank F. Ferris II, Blue Ash, for the Board of Education of Sycamore Local School District.
   OPINION

By WEBER, J.

On May 14, 1951, the Board of Education of Hamilton County, Ohio, adopted a resolution which abolished the Indian Hill Local School District, the Madeira Local School District, the Newtown Local School District and the Terrace Park Local School District and consolidated said local school districts into a newly created local school district. The County Board took this action by virtue of the powers granted to it by §4831-1 GC, which reads in part as follows:

“A county board of education may create a new local school district from one or more local school districts or parts thereof, * * *. Such action of the County Board of Education shall not take effect if a majority of the qualified electors residing in the territory included in such newly created district voting at the last general election shall within thirty days from the time such action is taken file with the County Board of Education a written remonstrance against it * *

The plaintiff, designating itself as “The Board of Education of the Indian Hill Exempted Village School District” filed a petition in which it claims that the County Board of Education acted without legal authority when it included the plaintiff in said newly created local school district. The oasis of the plaintiff’s claim is that on April 17, 1951, its legal status had been changed from a local school district to an exempted school district exempt from all control and supervision by the County Board of Education, by plaintiff’s complete compliance with the provisions of §4830-7 GC which reads in part as follows:

“The Board of Education of any local school district which contains within its territorial boundaries: (1) all of the territory lying within the corporate limits of a village having a population of 3000 or more according to the last federal census; or (2) all of the territory lying within the corporate limits of a village having a population of 2000 or more according to the last federal census and a population outside the corporate limits of said village, as determined by a census taken by such Board of Education, sufficient to make the total population of such district 3000 or more, may, by a majority vote of the full membership of such Board of Education, declare that such district be exempt from the supervision of the County Board of Education. * *

The ultimate question to be determined is whether on May 14, 1951, the plaintiff was an exempted village school district, or if not technically a completely exempted village school district, whether it had so far proceeded in qualifying it as such, that the County Board of Education, on May 14, 1951, had no authority to include it in the newly created local school district.

Numerous points have been argued in support of the claim that on May 14, 1951, the Indian Hill School District did not qualify as an exempted village school district either with reference to territorial requirements or with reference to population requirements.

(1) The first principal question is — Did the Indian Hill School District on May 14, 1951, contain all the corporate area of the Village of Indian Hill?

Prior to November 7, 1950, the Indian Hill School District contained th.e major part of the Village of Indian Hill, a duly constituted and organized municipal corporation, classified as a village, and also unincorporated territory outside said village. Said school district did not include three certain parts of the Village, which parts lay within three adjoining local school districts, namely, Terrace Park Local School District, Madeira Local School District and Sycamore Local School District. On November 7, 1950, each of said adjoining local school districts included all of a duly constituted and organized municipality, as well as certain unincorporated territory and also one of said parts of the Village of Indian Hill. The terrace Park School District included all of the Village • of Terrace Park; the Madeira School District included all of the Village of Madeira and the Sycamore School District included all of the Village of Montgomery. At an election held on November 7, 1950, there was submitted to the electors of each of the three parts of the Village of Indian Hill which lay within the adjoining school districts the question as to the transfer of these parts of the Village of Indian Hill to the Indian Hill School District. The Board of Elections certified that with respect to each of said three parts the vote was overwhelmingly in favor of the transfer.

(la) The principal argument in support of the claim that all of the Village of Indian Hill was not contained in the Indian Hill School District is that said elections were held under the provisions of §4831-15 GC and that the elections were not authorized by the provisions of said code section, which reads in part as follows:

“Transfer of territory mandatory upon approval by electors;

“In addition to and supplementary to the provisions of §4831-14 GC, if a petition, signed by ten per centum of the qualified electors residing within that portion of a municipality which is part of a school district of another municipality, proposing to transfer such territory to the school district of the municipality of residence, so as to make the lines of such district coincide with the corporate lines of the municipality, is filed with the Board of Elections, there shall be submitted to the qualified electors of the territory affected the question of the transfer of such territory. If a majority of the electors voting on the proposal vote in favor thereof the transfer of territory shall be carried out on June 15 next following the date of such approval by the electors. * *

It is argued that these provisions apply only to transfers of territory to and from city school districts and exempted village school districts; that they do not authorize transfers to and from local school districts, such transfers being solely within the jurisdiction of the County Board of Education. In the case of Board of Education of Terrace Park v. Board of Education of Indian Hill School District, et al, Court of Appeals, First Appellate District, 48 O. O. 254, 62 Abs 337 (CP 60 Abs 29), it was held that the transfer, by the election of November 7th, of the part of the territory of the Village of Indian Hill which lay within the Terrace Park Local School District to the Indian Hill Local School District was authorized by the provisions of §4831-15 GC. The court said:

“It is clear that the legislature had in mind the very situation here involved, that is, where a local school district including a municipality also included the area of another municipality.”

Neither the Sycamore Local School District nor the Madeira Local School District were parties to that case. The Sycamore Local School District is a party to this case and it and the County Board of Education make the same claim herein that was made in that case. The case is res adjudicata as to the Terrace Park School District. The rule of law therein established applies to this case. On the question whether the elections were authorized under §4831-15 GC, the very situation involved in that case is involved in this case. In that case the Terrace Park Local School District included all the corporate territory of the Village of Terrace Park and part of the corporate territory of the Village of Indian Hill. In this case the Sycamore Local School District includes all the corporate territory of the Village of Montgomery and part of the corporate territory of the Village of Indian Hill and the Madeira Local School District includes all the corporate territory of the Village of Madeira and part of the corporate territory of the Village of Indian Hill. An attempt to distinguish the cases is based upon the claim that the Village of Montgomery is a small factor in the government of the Sycamore Local School District. For this purpose evidence was introduced to show the relationship between the Village and other parts of the school district as to school population and property tax values. The court now holds that such evidence is immaterial and incompetent. No such distinction is made in the statute or in the above cited opinion of the Court of Appeals. This court is bound by said decision and therefore holds that said elections were authorized by the provisions of §4831-15 GC.

(lb) It is further claimed that the transfer of that part of the territory of the Village of Indian Hill which lay in the Sycamore Local School District is void because of irregularities in the election proceedings which purported to accomplish the transfer. Only part of this area was contained in the Village of Indian Hill as originally incorporated and is located entirely within said Sycamore Township and in precint C of the Village of Indian Hill; the remainder of this area adjoins the original north boundary of the Village of Indian Hill and is located partly in Sycamore Township and partly in Symmes Township. Application for annexation of this remaining part was made to the County Commissioners and a complete transcript of the annexation proceedings was filed with the clerk of the Village of Indian Hill on May 17, 1950, and council of the Village of Indian Hill passed an Ordinance of Acceptance on September 26, 1950. The transcript of the annexation proceedings was filed with the Auditor of Hamilton County on October 16, 1950, and received by the Recorder of Hamilton County on November 10, 1950. The annexed part was placed part in Precinct C and part in Precinct D of the Village of Indian Hill.

For the purpose of transferring to the Indian Hill School District, under the authority of §4813-15 GC, the territory which was part of the original incorporation of the Village of Indian Hill and also the territory covered by the annexation proceedings, there was filed with the Board of Elections on September 27, 1950, a petition by the election of Precinct C and on October 9, 1950, a petition by the electors of that portion which was recently annexed. The same ballot was submitted to the electors of both parts and it referred to the territory to be transferred as being “in Precincts C and D.” The Board of Elections certified that the result of the election held on November 7, 1950, was 51 in favor of and one against the transfer. Assuming that there was an irregularity because the same form of ballot was submitted to the two different parts of territory, each of which had filed petitions relating only to its particular territory, such irregularity in no way affected the result of the election and therefore did not affect the validity of the transfer. State, ex rel. Duffy v. Sweeney, 152 Oh St, 308, 40 O. O. 358.

It is further claimed that the transfer of the so-called annexed territory is void because, at the time that the petitions were filed on October 9, 1950, such territory was not then a part of the Village of Indian Hill inasmuch as the annexation had not then taken effect, and therefore the petitions were not signed by qualified electors residing within that portion of the municipality, as required by §4831-15 GC.

Sec. 3556 GC provides:

“When the resolution or ordinance, accepting such annexation, has been adopted the territory shall be deemed a part of the municipality, and the inhabitants residing thereon shall have all the rights and privileges of the inhabitants within the original limits of the municipality,”-

However, it is argued that sixty days must elapse after the transcript is filed with the County Recorder. But this provision of the statute does not apply where the annexation petitions are initiated by the freeholders of the territory, as in this case. . In such a case the Ordinance of Acceptance is the final step in the proceedings. Under the provisions of §3550 GC action by council, either to accept or reject the annexation, is taken at its next regular session, after the expiration of sixty days after the transcript is filed with the auditor or clerk of the municipality, said sixty-day period being allowed by §3553 GC for the filing of an injunction by any interested person. In this case a transcript was filed with the clerk of the Village of Indian Hill on May 17, 1950. After the lapse of more than sixty days thereafter, no injunction having been filed, and at its next regular meeting on September 26, 1950, council adopted an Ordinance of Acceptance. The sixty-day period has no relation to the filing of the transcript with the county recorder and it was so held in the case of State ex rel Village of South Brooklyn v. Craig, 21 C. C. 13:

“Syllabus 2. On the passage and legal publication of a municipal ordinance accepting an application for annexation of certain territory, such territory becomes a part of the village, although the transcript, map and other papers were not filed for record until a later date.”

It is also argued that the ordinance did not go into effect until thirty days after September 26, 1950, because of the provisions of §4227-2 GC which reads in part as follows:

“Any ordinance, or other measures passed by the council of any municipal corporation shall be subject to the referendum except as hereinafter provided. No ordinance or other measure shall go into effect until thirty days after it shall have been “ * * passed by the council in a village, except as hereinafter provided.”

There is an inconsistency between this section and §3556 GC which provides that when the ordinance of acceptance is adopted the territory shall be deemed a part of the municipality. The inconsistency is explained by the fact that the referendum law was passed by the legislature a considerable time after the enactment of §3556 GC. However, since §3556 GC has not been expressly repealed, both sections must be given full force and effect if possible. It is clear that under §3556 GC the territory becomes annexed upon the passage of the ordinance. Sec. 4227-2 GC makes the ordinance subject to a referendum that is the ordinance will be void only if there is a referendum within thirty days and the voters of the municipality cast an unfavorable vote; otherwise the ordinance is valid from the date of its passage on September 26, 1950. The principle applicable is set forth in the case of Roettker v. City of Cincinnati, et al, 56 Oh Ap, 464, 9 O. O. 77:

“Syllabus 1. Annexation of territory to a municipality becomes complete upon the passage of the ordinance accepting the territory under §3556 GC; subject, however, to the contingency that such annexation may be voided by the municipality by its refusal to accept the county auditor’s apportionment of indebtedness and division of funds as provided by §3557-1 GC.” (Which provides that the passage of a resolution or ordinance accepting the apportionment of funds is' necessary to the validity of the annexation.)

“Syllabus 2. In such case the passage of a resolution accepting the apportionment validates the annexation which becomes effective from the date of the ordinance accepting the territory under §3556 GC.”

It is further contended that even if the annexation became effective on September 26, 1950, the persons who signed the petition on or before October 9th were not at that time qualified electors of the municipality, because they had not been residents of Precincts C and D forty days prior thereto as required by §3785-30 GC. There is no evidence that any signer of the petition was not a resident of the particular territory which was later included in Precincts C and D. Sec. 4885-31 GC, provides that “that place shall be considered the residence of a person in which his habitation is fixed.” Fixed habitation for the required period in a particular territory, and not the technical designation of that territory for election purposes, determines the right to vote.

State, ex rel. Ehring v. Bliss, et al., 155 Oh St, 99, 44 O. O. 117.

The court is of the opinion that there was no irregularity in the election which would invalidate the transfer of the so-called annexed territory, but, if so, the election was not necessary to transfer said annexed territory to the Indian Hill School District, the transfer having taken place automatically as a consequence of the annexation, as provided in §4830-5 GC, which reads:

“When territory is annexed to a city or village, such territory thereby becomes part of the city school district or the school district of which the village is a part, and the legal title to school property of such territory for school purposes shall be vested in the board of education of the city or village school district. (Emphasis added.)

The claim that the above section of the code applies only when territory is annexed to city and exempted village school districts is untenable. A brief reference to the history of this section of the code renders clear the intention of the legislature in passing the amendment. Said section, as former §4690 GC reads:

“When territory is annexed to a city or village said territory thereby becomes a part of the city or village school district and the legal title of school property in such territory for school purposes shall be vested in the board of education of the city or village school district.”

When the legislature abolished village school districts, other than exempted village school districts, it became necessary to change the wording contained in said §4690 GC. If it were intended that the provision of the section should apply only to city and exempted village school districts, the insertion of the word “exempted” before the words village school district would have accomplished that result. Instead, the legislature substituted a lengthy descriptive clause, “the school district of which the village is a part.” There is no ambiguity in these words. The ambiguity is created by the failure of the legislature to make a similar substitution when it located the title of the school property of such territory in the board of education of the village school district. The words “village school district” now are too comprehensive and have no definite meaning and therefore it must be assumed that such failure was an oversight.

(1c) It is further claimed that the territory which purported to be transferred by the election had not been actually transferred on April 17,1951, because of the provision of §4831-15 GC, “the transfer of the territory shall be carried out on June 15th next following the date of such approval by the voters.” This contention is unsound. The legal status of the territory as being contained in the Indian Hill School District was mandatorially fixed by the provisions of §4831-15 GC as a consequence of the vote favoring such transfer. The only purpose of the above provision is to avoid confusion in and disruption of the administrative operation of the school during the school year.

Assuming that the annexed territory was transferred to the Indian Hill School District automatically and consequently that the election with reference to that territory was unnecessary, it is clear that the territory which was originally a part of the Village of Indian Hill was transferred by the election. The testimony is uncontradicted that the records of the Board of Elections show that the vote in said territory was 17 in favor of and one against the transfer.

The court holds that on April 17, 1951, the Indian Hill School District legally contained all the territory of the Village of Indian Hill and that said school district was territorially qualified to declare itself an exempted village school district.

(2) The second principal question is whether the Indian Hill Local School District, on April 17, 1951, qualified as to population to declare itself an exempted village school district.

(2a) Sec. 4830-7 GO, requires that the village contain a population of 2,000 or more according to the last federal census. Preliminary and tentative figures had been obtained from the Department of Commerce on April 5, 1951, and prior thereto, showing that the population of Indian Hill as of April 1, 1950, was approximately 2071. The final official figure received from the Department of Commerce, dated June 12,1951, showed a population of 2090 as of April 1, 1950. Although this final official certification was not received until June 12, 1951, such delay does not alter the fact that “according to the last federal census” the population of Indian Hill Village was 2,000 or more and that this particular requirement of the statute was met.

(2b) Said Sec. 4830-7 GC further requires that the school district contain “a population outside the corporate limits of said village, as determined by a census taken by such board of education (the board of the local school district), sufficient to make the population of such district 3000 or more * * *

“A census taken by the board of education of a local school district, of territory outside the corporate limits of the village, shall be taken by persons appointed by said board of education. Each person so appointed shall take an oath or affirmation to take such a census accurately. He shall make his return under oath to the clerk of the board. The clerk of the board shall send certified copies of such census to the county auditor and to the superintendent of public instruction. Such census shall be approved by the superintendent of public instruction before the school district is deemed to have sufficient population to meet the requirements of an exempted village school district.”

The uncontradicted evidence shows that such a census was taken in the manner required by law and that the population in said unincorporated territory was 1819, making the total population in the entire school district 3909. The forms used in taking the census were not only approved by the Superintendent of Public Instruction but were made up by him. Copies were filed with the county auditor and the originals were received by the Superintendent of Public Instruction on March 31, 1951. However, it is claimed that the population requirement was not met on April-17, 1951, because the Superintendent of Public Instruction had not at that time approved the census, such approval being required “before the school district is deemed to have sufficient population.” The Superintendent of Public Instruction knew that the plaintiff contemplated adopting a Declaration of Exemption in time to file the same, as required by the statute, with the County Board of Education before May l, 1951. The Superintendent of Public Instruction was urged to take such action. The Superintendent of Public Instruction is a party to this suit. No evidence was offered by him to the effect that the census was in any respect irregular or inaccurate. His only excuse for not taking action was that his office had established a policy not to approve until all other exemption requirements of the statute had been satisfied, including territorial qualifications and federal census certification. This is not 'a legitimate excuse for the delay; the last paragraph of §4830-7 GC deals only with the census of the unincorporated territory and it is “such census (which) shall be approved.” Neither the Superintendent of Public Instruction nor the County Board of Education has any right or duty with reference to a local school district qualifying for exemption or with the wisdom of such action. The sole function delegated to any board, other than the particular local school board, is that the Superintendent of Public Instruction shall approve, that is verify the accuracy of, the census of the unincorporated territory. It is the court’s opinion that the legislature did not intend to vest the Superintendent of Public Instruction with the power to unjustifiably .delay approval or disapproval of the census and thus make it impossible for the local school district to declare exemption, although in fact fully qualified to do so and desiring, to do so. The only purpose of this provision is to insure that the unincorporated territory has sufficient population to make the total population of the school district at least 3,000

The court holds that the Indian Hill Local School District, on April 17, 1951, was qualified as to population to declare itself an Exempted Village School District.

(3) The third question is whether the Declaration of Exemption was adopted by the Indian Hill School District in a legal manner. Sec. 4830-7 GC. provides in part:

“The board of education of any local school district * * *, may, by a majority vote of the full membership of such board of education, declare that such district be exempt from supervision of the county board of education. * * *”

Sec. 4833-2 GC, provides in part:

“A special meeting of the board of education may be called by the president or clerk thereof or by any two members, by serving a written notice of the time and place of such meeting upon each member of the board at least two days prior to the date of such meeting. * * *”

The meeting at which the Declaration of Exemption was adopted was held on April 16, 1951. All five members of the board were notified of the meeting and its purpose but the notice was not in writing. The minutes of the board show that all five members were present and that three, naming them, voted for the resolution and that two, naming them, passed. The purpose of a written notice, whenever required for a meeting of any board, is to insure that a vote on a measure will not be taken without giving every member an opportunity to be present and take part in the business of the meeting. If all of the members of the body are actually present, and particularly if their presence is in response to some kind of a notice, the purpose of the written notice has been served and its omission does not invalidate the vote. This is the rule with reference to private corporations and there is no reason why the same rule should not be applied to public boards.

“It has been sta,ted as a general rule that the legality of a directors’ meeting and the validity of action taken thereat depend upon the giving of the required notice, but the rule does not apply if all directors attend and participate in the meeting.” Davies Ohio Corporation Law, at page 855.

“Another exception to the rule is, that notice may be dispensed with where all the directors are present and participate in the proceedings. The only object of notice is that the directors have an opportunity of being present at the meeting and taking part in its proceedings.” Thompson, Corporations (3rd edition), Volume II, pages 675-6.

“The validity of a meeting is not affected by failure to give notice, even when notice was expressly required by the charter or by-laws, if all the directors were present and raised no objection. In other words, presence at the meeting waives the want of notice, even though the director subsequently departs. Thus it has been held that the fact that the meeting of the directors was held without a formal call first being bad, and notice thereof given to the members, did not operate to invalidate it, or to render the proceedings which were taken at it void, if every member of the board was present, and their joint action has completely bound the corporation as if the meeting had been called with due formality.” Fletcher, Cyclopedia of Private Corporations, Volume II, Section 411, pages 196-7.

The court holds the Resolution Declaring Exemption was legally adopted.

The final claim of the County Board of Education is that regardless of what steps were taken, prior to May 14, 1951, by the Board of Education of the Indian Hill School District, in compliance with the statutes, to attain the legal status of an exempted village school district, said school district remains a local school district in all respects under the supervision of the County Board until July 1, 1951. This claim is based upon that part of §4830-7 GO, which reads:

“When the board of education of a local school district notifies the county board of education, on or before May 1st of any year, that it has adopted by a majority vote of its full membership, a declaration that such school district shall be exempt from the supervision of the county board of education, such local school board shall be exempt from the supervision of the county board of education for the school year commencing July 1st following the date of such notification and thereafter, except as provided by law.”

The relation between the dates May 1st and July 1st and the active school year period indicates a clear intention that the change in the legal status of the school district which took place prior to May 1st should not be permitted to confuse or disrupt the .current administrative operation of the school district. However, if the County Board of Education, during the period between the notification of a valid declaration of exemption and July 1st, is further permitted to so change the territorial boundaries of the school district, and possibly its population content, as to disqualify the school district for exemption, such action would nullify and make impossible of effectuation the mandatory provision that “such local school board shall be exempt from the supervision of the county board of education for the school year commencing July 1st following the date of such notification.”

The Board of Education of the Indian Hill School District on April 17, 1951, had taken all the steps required of it and within its power to qualify as an exempted village school district. It may be conceded that the failure of the State Superintendent of Public Education to approve the census of the unincorporated territory and the delay in obtaining the final official certificate of the federal census of the incorporated territory and the postponement until July 1st of putting into administrative effect the previously declared exemption prevented the ex§,ct and complete compliance with the provisions of §4830-7 GC, for exemption. Nevertheless the passage of the Resolution of Exemption on April 16, 1951, and the receipt of the notice thereof by the County Board of Education on April 17, 1951, deprived the County Board of Education of jurisdiction, by its resolution of May 14, 1951, to abolish the Indian Hill School District and consolidate it with other school districts into a new local school district.

Trumbull County Board of Education v. The State, ex rel. Van Wye, 122 Oh St, 247:

“1. Where power is given under the statutes to two different governmental boards to act with reference to the same subject-matter, exclusive authority to act with reference to such subject-matter is vested in the board first acting under the power.

“3. When a court is asked to exercise the extra-ordinary power of mandamus, it is not limited to a consideration of the facts and conditions as they existed at the time the proceeding was initiated, but should take into consideration the facts and conditions existing at the time it determines whether a peremptory writ should issue.”

The principles enunciated in the above case apply to and control this case.

THE COURT HOLDS:

That the Indian Hill Local School District became an Exempted Village School District on April 17, 1951; that the Hamilton County Board of Education on May 14, 1951, had no authority to abolish the Indian Hill School District and to include it in a new local school district and that such action is null and void; that the temporary restraining orders heretofore issued in this case should be and are hereby dissolved; that the Hamilton County Board of Education should be and it is hereby permanently enjoined from taking any action which will affect the status of the Indian Hill School District as an Exempted Village School District or interfere with its rights or duties as an Exempted Village School District.

The costs of this action should be paid one-half by the Board of Education of the Indian Hill Exempted Village School District and one-half by the Hamilton County Board of Education.


author: By CONN, J:

text:
    PATTERSON, Admrx., Plaintiff-Appellee, v. GEORGE F. ALGER CO. et, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22373.
    Decided April 22, 1952.
    K. J. Ertle, Cleveland, for plaintiff-appellee.
    McConnell. Blackmore, Cory & Burke, S. Burns Weston, Cleveland, for defendant-appellant.
    (FESS, PJ, CONN, J, SAVORD, J, of the 6th District, sitting by designation.)
   OPINION

By CONN, J:

The plaintiff, Arvella Patterson, administratrix of the estate of Thomas W. Patterson, deceased, recovered a judgment against the defendant, The George F. Alger Company in the court of common pleas in the amount of $66,237.50, from which said defendant has duly filed its appeal on questions of law in this court.

This is an action under the wrongful death statute and was originally brought against said Alger Company and Detroit-Pittsburgh Motor Freight Inc., but at the conclusion of plaintiff’s evidence, on motion, the action against the latter company was dismissed.

It was admitted in the pleadings or shown by evidence that one Thomas W. Patterson, on January 31, 1949, at about 2:40 A. M. was operating his Brockway tractor and trailer westerly-on U. S. Highway No. 20 in Huron County, Ohio; that at a point about 5.6 miles east of Norwalk. Ohio, said tractor and trailer collided with the tractor and trailer unit of defendant, George F. Alger Company which at said time was being operated in an easterly direction by its employe Robert J. Lowery; that said highway was straight, improved with a hard surface 20 feet wide and with east and west-bound lanes.

It further appears that Thomas W. Patterson sustained fatal injuries in said collision and the motor equipment of both parties was broken and damaged; that Arvella Patterson is the surviving spouse of said decedent, and this action is brought by her, in her representative capacity, for the pecuniary benefit of herself and her four minor children.

It is alleged in plaintiff’s petition that easterly from the place of collision, a distance as shown by the evidence of 500 or 600 feet, the operator of the Brockway tractor and trailer suddenly encountered an unlighted pile of steel extending several feet onto the highway; that to avoid hitting the obstruction, said tractor and trailer were swung to the left around it and “had approximately succeeded in re-crossing the center and regaining the northerly side of said highway” when the collision occurred.

The evidence shows that the tractor-trailer outfit had a load of steel discs, and following the collision the tractor struck a tree on the northerly side of the highway with great force; that the trailer, when it came to rest, was headed in a northwesterly direction and completely off the paved portion of the highway, excepting the rear left wheels; that the defendant’s motor vehicle jack-knifed following the collision, the tractor came to a stop headed in a northwesterly direction and partially over the center line of the road and the trailer headed in a northeasterly direction, the rear wheels off the pavement on the south side of the road, with the rear right wheels in the ditch.

Plaintiff alleges that defendant was negligent in continuing down the center of the road with no attempt to avoid the collision; that defendant had the last clear chance to avoid the collision and made no attempt to slow or stop or pull further to the right.

Defendant denies that the collision was caused by any negligence on its part.

From the judgment entered in favor of plaintiff, defendant appeals to this court on questions of law and assigns a number of errors, to-wit:

Court erred in overruling defendant’s motion for judgment notwithstanding the verdict and in failing to direct a verdict for defendant at the end of plaintiff’s case and at the end of all the evidence. The court has considered each of these assignments and has concluded that they are not well taken and should not be sustained.

Defendant also assigns as error the admission of opinion evidence relative to gouge marks; error in refusing to give defendant’s special written instructions to charge before argument; error in the general charge and that “the judgment is the result of an excessive verdict rising out of actions of plaintiff’s counsel and rulings of the court.”

We will consider the remaining assignments of error in the order above set forth.

The trial court uniformly and properly, from time to time, sustained objections to evidence offered by plaintiff by way of opinion evidence in relaton to the point of impact, based on the position of gouge marks in the pavement. However, in one instance, the trial court improperly overruled an objection to such opinion evidence given by plaintiff’s witness, Officer Koleum. This witness was cross-examined quite fully in respect to gouge marks on the highway, also the location and relative positions, after the collision, of the damaged vehicles, and the debris and materials scattered on the highway. During this examination the witness referred to the place of impact and where the collision occurred in the highway. In practical effect, what we have here adds up substantially to a waiver. Under these circumstances we conclude this assignment is not well taken, as it is not clear how defendant could have sustained any prejudice.

A number of special requests in writing to charge before argument were made by defendant. Of this number, six, seven and eight were refused. This action of the trial court is assigned as error. The requested charges are as follows:

“6. I charge you as a matter of law that an inference of fact can not be predicated upon another inference but must be predicated upon a fact supported by evidence.

“7. I charge you as a matter of law that if you find that the gouge marks on the north side of the highway were caused by some part of the Kaplan Trucking Company's vehicle following its collision with the George F. Alger Company’s truck, then you can not find that at the time that the collision occurred that the George F. Alger Company’s truck was on its left or wrong side of the road.

“8. I charge you as a matter of law that if you find that the gouge marks on the north side of the highway were caused by some part of the Kaplan Trucking Company’s vehicle following its collision with the George F. Alger Company’s vehicle, you can not' use this fact as a basis for inferring that the George F. Alger Company’s truck was on its left or wrong side of the road at the time the collision occurred.”

Number six: — This request is a statement of a well known rule in our procedure in dealing with the merits of a fact issue. However, when this rule is stated in the abstract merely, with no instructions as to its application to a given state of facts, it would be of little help to the jury and at the same time may be confusing, and even misleading In our opinion it was not error to refuse this special instruction. We note that the court in its general charge gave the substance of this request and at the close of the court’s charge upon request of defendant, further charged on this subject matter. Thus the jury had the benefit of the rule.

Numbers seven and eight: — It appears from an examination of these two requests that the premise in each is practically identical. The requests then proceed to charge the jury, as in No. 7, that it “cannot find” and as in No. 8, that it “cannot use this fact as a basis for inferring” by reason of such prior determination that defendant’s vehicle was on the left or wrong side of the road.

The relative location of the vehicles on the paved portion of the highway at the moment of impact was an issue of ultimate fact to be determined on all the evidence, and not on a selection portion. Further, the request having been stated in the negative, could confuse the jury in its deliberations on a general verdict. For these reasons alone, we conclude that requests numbers seven and eight were properly refused.

The court instructed the jury on the last clear chance doctrine in its general charge to the jury. This is assigned as error.

The doctrine of last clear chance, sometimes referred to as the “known danger” rule is applicable in those situations wherein plaintiff or the. party seeking relief had placed himself in a perilous position, through his own negligence, but notwithstanding his negligence in the first instance, such party may still recover under the last clear chance rule, if the other party, after becoming aware of his perilous position, could have avoided injuring him, in the exercise of ordinary care, and failed to do so. The rule thus stated “presupposes antecedent fault or negligence” of the party seeking relief and is applicable when such fault or negligence is remote and negligence of the other party is proximate in relation to the cause of the injury. In other words, the party seeking to recover damages can not invoke the rule when his contributory negligence concurs with the negligence of the other party in producing the injury.

29 O. Jur., 574, Sec. 112; Cleve. Ry. Co. v. Wendt, 120 Oh St 197; Cleve. Ry. Co. v. Masterson, 126 Oh St 42; Brock v. Marlatt, 128 Oh St 435; Hayman Admx. v. Penn. R. R. Co., 77 Oh Ap 135.

As already pointed out, it is alleged in the petition and also shown by the evidence that a pile of steel had been deposited on the north side of the highway, partly on the berm and extending several feet on to the paved portion of the north lane of the highway; that it appears from the evidence that this steel lay at a point 500 or 600 feet easterly from the point of collision. There was some conflict in the evidence as to whether or not the pile of steel was lighted or unlighted immediately prior to the collision. In any event, it was of such size as to be a discernible object and in the lane of traffic moving westerly.

Since the pile of steel was a discernible object, Patterson was required to operate his vehicle in such a manner as would permit him to bring it to a stop within the assured clear distance ahead. (Sec. 6307-21 GC.)

The traffic code contains a further specific requirement (§6307-25 GC), that upon roadways of sufficient width, except as otherwise provided therein, vehicles “shall be driven upon the right of the roadway.”

Sec. 8307-29 GC, restricts driving to the left of the center or center line of the roadway “unless such left side is clearly visible and is free of on-coming traffic for a sufficient distance ahead to permit such overtaking and passing to be completely made without interfering with the safe operation of any traffic approaching from the opposite direction or any traffic overtaken.”

The evidence tends to show that a vehicle such as the Patterson tractor and trailer, after passing around an object on the highway or another vehicle, could return to its own side of the road in a distance equal to three lengths of itself. On this showing, Patterson had ample space in which to cause his vehicle to completely return to the north side of the highway before reaching the point of impact. If this fact were shown by the evidence, the last clear chance rule would not have application. On the other hand, if it appears that Patterson’s vehicle, or any part of it, had been operated across the center line and into the south lane of the road and was being operated there to the point of impact, even upon a showing of negligence on the part of defendant, the doctrine of last clear chance would not apply, under the rule established by the authorities cited, for the reason that the contributory negligence of Patterson in continuing to operate his vehicle over the center line would be concurrent with such negligence of defendant.

Among the specifications of negligence in plaintiff’s petition, it is averred that defendant had the last clear chance to avoid the collision. However, the petition is devoid of any averments by way of operative facts upon which to predicate a claim for the application of the last clear chance rule. Under these circumstances, the specification above referred to is merely a conclusion of the pleader.

We find a concise statement of the law in 39 O. Jur., 952, Sec. 267, as follows:

“In determining the scope of its instructions, the trial court must keep in kind the issues as made by the pleadings and the evidence in support thereof. The rule stated above, that the court ought to adapt its charge to the issues made by the pleadings and the evidence, forbids the introduction into the charge of instructions upon an issue not so raised.”

It follows that under both the pleadings and the evidence, there was no basis upon which to predicate a claim for relief under the doctrine of last clear chance.

The prejudicial character of this error in the charge is the more apparent by reason of the omission in the general charge, calling the jury’s attention to the applicable sections of the traffic code. It is our conclusion that this assignment of error should be sustained.

Other errors are assigned, including several other errors in the court’s charge, but on consideration we conclude they were not prejudicial.

Further it does not appear that the verdict was excessive, or that the amount of the verdict was improperly influenced by the presence of the minor children of said decedent in the court room for a brief period at the opening of the trial, or by the character of the argument of plaintiff’s counsel.

Judgment reversed and cause remanded for a new trial.

Exceptions. Order see journal.

FE'SS, J, SAVORD, J, concur.